Boilerplate Language: Worrying about the OGL (Part 4)

[Snarf Zagyg]

Thanks for the explanation! Suppose this were to happen and Wizards decided to let the whole license fall. What would that actually look like? Does Wizards have some time frame where they have to make that call after the ruling is handed down? Or can they wait for years and then say, "We've been thinking and thinking about it and finally decided to scrap the whole license?"

Most likely (but not definitely) that would be part of the judgment of the Court finding a provision invalid. In other words, litigation is rarely about "one thing." So if the issue comes up that the Court must construe the provisions (plural) of the Contract, the severance clause will come up, and that's when Hasbro will make the election.

It's ... okay, imagine a provision in a contract that allows one party to determine if the claim has to go to mediation at that party's discretion. Now, you get to make that election (and have the Court rule on it), but you don't get to litigate the whole case and then say, "Oh, now we are going to go mediation!"

I am not being definitive on this because I can imagine an example where that doesn't happen (say, a state court declaratory judgment focuses on a single term, perhaps?), but regardless, they can't wait for years and say, "Surprise! Remember that case no one heard about eight years ago? Yeah, about that ... we decided that the license was void. Dating back eight years. M'kay?"

 

[SoonRaccoon]

OGL 1.0(a) is not (from a legal standpoint) well-written.

I'm perfectly happy to accept this.

None of this is really about the utility or morality of this, or other boilerplate terms. But (as you correctly surmised) it is about understanding why these terms are there.

That term is there because it's a lawyer's job to further their client's goals and protect their client's assets. But do you understand the objection to it? Not only to the objection to it being in this contract, but being so ubiquitous that it would be considered boilerplate? This isn't about "conspiracy-minded" notions. It's about corrosive trends.

 

[Snarf Zagyg]

I'm perfectly happy to accept this.

Are you? You do realize that the lack of clarity is what led to this point, right? This was the first time there was an issue ... and look where it has gotten you.

This is what dogma gets you. For example, if you thought about it, you would realize that most people would probably say, "I don't want OGL 1.0(a). I want an actual open license that is written with updated language, that includes magic words (belt & suspenders!) like irrevocable and is more carefully written so issues like, Derp sublicenses isn't just assumed away."

That term is there because it's a lawyer's job to further their client's goals and protect their client's assets. But do you understand the objection to it? Not only to the objection to it being in this contract, but being so ubiquitous that it would be considered boilerplate? This isn't about "conspiracy-minded" notions. It's about corrosive trends.

Do you even understand why severance clauses are boilerplate?

Seriously. Try doing it without using google. Explain to me why, in your own opinion, people began using severance clauses. Explain why they are so common?

And now ... really, I can't wait for this ... explain to me why a severance clause is a "corrosive trend."

I'll wait.

 

[Maxperson]

... and that's at a firm doing (assumedly) Plaintiff's work in the employment area ... which is where many class actions originate (and also where all collective actions come from).

Not only Plaintiff's side, but a firm specializing in class and PAGA(Private Attorneys General Act) actions, and in a state that is heavily and I mean HEAVILY skewed towards the worker over the employer.

 

[SoonRaccoon]

Seriously. Try doing it without using google. Explain to me why, in your own opinion, people began using severance clauses. Explain why they are so common?

And now ... really, I can't wait for this ... explain to me why a severance clause is a "corrosive trend."

I'll wait.

I'm not talking about severance clauses. I'm talking about the clause that limits class actions, et. al.

I'd imagine severance clauses are there to keep the contract intact, perhaps across jurisdictions where contract law can differ. For example, consumer protections are much stronger in many European countries compared to the US, and many clauses that are enforceable in the US are not enforceable in some EU countries.

Edit: The examples of severance clauses you gave in post #30 seem like perfectly reasonable boilerplate to include in just about any contract.

 

[Snarf Zagyg]

I'm not talking about severance clauses. I'm talking about the clause that limits class actions, et. al.

I'd imagine severance clauses are there to keep the contract intact, perhaps across jurisdictions where contract law can differ. For example, consumer protections are much stronger in many European countries compared to the US, and many clauses that are enforceable in the US are not Enforceable in some EU countries.

No. Severance clauses (in the United States) arose because of the difficulty in determining how a court would rule on a particular contract. This is a classic example-

In the alternative, the Government urges that the half-savings clauses are severable, and that if the contracts imposed upon Bethlehem no obligation of special effort to effect savings, these clauses were unsupported by consideration, and are therefore unenforceable. The Master and the courts below, however, treated these clauses as non-severable; to do otherwise would call for departure from accepted principles of the law of contract. Whether a number of promises constitute one contract or more than one is to be determined by inquiring "whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out." Williston on Contracts (rev. ed.) § 863 and cases there cited. The record makes it clear that each of the contracts here was assented to as a single whole, and that consummation of a bargain between the parties depended upon inclusion of the half-savings clause. Furthermore, we know of no federal or state statute or established rule of law in any jurisdiction inconsistent with the elementary proposition that a promise to build ships is good consideration for a promise to pay a sum of money whether fixed in amount or depending upon the relationship between actual and estimated cost.

United States v. Bethlehem Steel Corp., 315 US 289, 298-99 (1942)

cf.

I agree that the consummation of the bargain depended upon the inclusion of this "savings" clause and that in each instance there was but one contract, not several. My view, however, is that each contract was divisible or severable. ". . . the essential feature of such a contract is that a portion of the price is by the terms of the agreement set off against a portion of the performance and made payable for that portion, so that when an apportioned part of the performance has been rendered a debt for that part immediately arises." Williston on Contracts, § 861 (Rev. Ed.). In other words, the whole performance of each contract was divided "into two sets of partial performances, each part of each set being the agreed exchange for a corresponding part of the set of performances to be rendered by the other promisor." Id., § 860A. (1) The promise of the Fleet Corporation to pay the actual cost plus the fixed fee was exchanged for Bethlehem's undertaking to construct the ships. (2) The promise of the Fleet Corporation to pay one-half the amount by which the actual cost fell short of the estimated cost was exchanged for Bethlehem's promise (which is implied) to effect the savings by increasing efficiency.

United States v. Bethlehem Steel Corp., 315 US 289, 338-39 (1942) (Douglas, J. dissenting).


Loosely translated, you just had two really smart justices (Black wrote for the majority) disagreeing about a basic feature of a contract- whether it was severable. Whether the entire contract was void or not. So the reason you see severance clauses is to avoid this exact issue; you know ahead of time whether or not the contract is void or if it will continue even if certain provisions are invalid. That's why severance clauses (along with merger clauses) are the most common features of almost all contracts. To reduce uncertainty.


Now that this is clear, why don't you explain to me exactly how you foresee a class action being brought with this license?

 

[Snarf Zagyg]

Not only Plaintiff's side, but a firm specializing in class and PAGA(Private Attorneys General Act) actions, and in a state that is heavily and I mean HEAVILY skewed towards the worker over the employer.

Heh. I think a lot of people don't understand what has happened in the last two decades in terms of the law and class actions.

 

[SoonRaccoon]

Now that this is clear, why don't you explain to me exactly how you foresee a class action being brought with this license?

I have no idea. I'm not a lawyer. You say it's not a big issue in this contract, so I'll just assume you're correct.

My objection is to this kind of clause being so common that it's considered boilerplate. That means it's in all sorts of other contracts where it actually does matter. That's what I'm calling a corrosive trend.

Another example in 1.2 would be the clause that makes it harder to sue WotC for copyright infringement, and limits damages. I understand why WotC wants that clause, and I don't necessarily fault the lawyers for putting that clause in the contract, because it's their job to protect WotC. But it doesn't mean I have to like it.

An example of this (thankfully) not in 1.2 would be a clause requiring binding arbitration. One company puts these in their terms of service, other companies think it's a great idea and begin including it, too. A corrosive trend. Would these become boilerplate, too, just by becoming common?

 

[Dausuul]

I'm not talking about severance clauses. I'm talking about the clause that limits class actions, et. al.

I'd agree that this is a problem at the scale of society. But any solution to that problem lies in politics and legislation, way beyond the scope of this forum.

With regard to this specific contract, the class-action clause seems to me like a nothingburger. The severability clause looks like... maybe a slider. Giving discretion to Wizards on how to remedy defects in the contract, when the other party gets no such discretion, is not great. But the speculation that Wizards could use that clause to just do a rug pull at any moment is bonkers.

I'd rather worry about the non-boilerplate stuff, like the morality clause that gives Wizards the power to terminate any license whenever they want, simply by calling it "hateful," and you can't take them to court or even to binding arbitration to dispute their decision. (I hope that isn't boilerplate.)

 

[Snarf Zagyg]

I have no idea. I'm not a lawyer. You say it's not a big issue in this contract, so I'll just assume you're correct.

My objection is to this kind of clause being so common that it's considered boilerplate. That means it's in all sorts of other contracts where it actually does matter. That's what I'm calling a corrosive trend.

Another example in 1.2 would be the clause that makes it harder to sue WotC for copyright infringement, and limits damages. I understand why WotC wants that clause, and I don't necessarily fault the lawyers for putting that clause in the contract, because it's their job to protect WotC. But it doesn't mean I have to like it.

An example of this (thankfully) not in 1.2 would be a clause requiring binding arbitration. One company puts these in their terms of service, other companies think it's a great idea and begin including it, too. A corrosive trend. Would these become boilerplate, too, just by becoming common?

Look, I assume you actually read the first post?

Here-

Boilerplate is the standardized language that you will see in contract after contract; it's the stock provisions that you will see in most (or all) contracts of a certain type. Even if they might not apply, you will see a lot of boilerplate.

...

To give you an idea of how this would operate in practice, you will often see contracts that have "boilerplate" provisions. Most contracts of most types have a choice of law provision, a severance clause, a merger clause, and so on. Different law firms and companies might vary the language a little, but you will almost always see this in most types of contacts (is the contractual provision labeled controlling law, choice of law, or governing law etc.).

That's it. Boilerplate does not mean good. It does not mean bad. It just refers to standardized common contractual provisions that do not vary greatly in contracts, and are often copied verbatim from contract to contract. That's it.

This means a few things (which was also covered in the prior column on why attorneys write a certain way)- as I wrote, the prevalence of boilerplate language means that it will often appear, even when it isn't applicable. For example, the "class action waiver" language will almost always include a reference to "collective actions" even though it is inapplicable outside of employment contexts, simply because the language gets re-used.

But it's also important to think about why something became a particular provision, and what it means. Boilerplate does not arise by accident; I just explained to you why severance clauses are used. There are similar reasons for all the clauses, from merger to choice of law to, yes, even class action waivers.

So instead of saying standard contractual language is corrosive, you actually need to be able to come to the table and explain why that is the case. And it is frustrating for attorneys when they see people say things like your objection to the standard disclaimer of warranties and liability. They are offering up IP, and they are (for a license that can be used in all sorts of jurisdictions will all sorts of rules) just saying that they are providing the material "as is."

It's bizarre. Again, there's a lot of issues going on, but it helps to concentrate on real issues, and not make fake ones up.