Boilerplate Language: Worrying about the OGL (Part 4)

[Snarf Zagyg]

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.)

No, that isn't a boilerplate provision. Morality clauses are much more common in employment and personal services contracts than licenses, which usually just have a termination provision. If you don't like what the licensee is doing, you terminate the license.

But that's the rub, isn't it? This can't just have a termination provision, since it is (theoretically) not supposed to be terminable. So you just keep going round and round, I guess.

 

[Maxperson]

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.

Speculation that they will use it to pull at any moment is bonkers, but speculation that they will use it if a clause is found invalid is not bonkers. It's very likely that they will use it since they presumably want the clauses they wrote to remain in the contract.

Edit: I didn't read closely enough due to home distractions. Didn't see it was the morality clause you were talking about.

 

[SoonRaccoon]

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.

The problem is that clauses that limit consumer rights have become standard. The fact that it has become standard is the problem.

It's fine if you don't agree, but can you see where I'm coming from?

 

[Snarf Zagyg]

The problem is that clauses that limit consumer rights have become standard. The fact that it has become standard is the problem.

It's fine if you don't agree, but can you see where I'm coming from?

Again, this is not a consumer license. This is a license that allows you to use the intellectual property of a company within a safe harbor.

So from my perspective ... no, I don't see at all. You keep acting like this is some sort of, "Oh no. They sold combine harvesters designed to kill children and puppies, but no one can possibly sue them because of their clever contracts!!!!" But it's not.

This is about offering something to the world, and trying to make sure it doesn't come back to bite you in the posterior ("as-is").

That's why it's important to understand what we're discussing.

 

[S'mon]

One of the topics I keep seeing repeated, over and over, is the issue of standard contractual language. It can be frustrating looking at some of those conversations because people are looking at what are, for an attorney, a standard contractual provision, and assuming that it is somehow nefarious or ill-intended.

That something is 'standard boilerplate' in a standard form contract does not mean it is not 'nefarious or ill-intended'!

 

[Aspirinsmurf]

These are rather alien to open licenses though.

Feel free to look at the BSD, Apache, GPL, CC, etc.

Even the Microsoft Public License isn't remotely halfway as draconian as any of this.

Free license - Wikipedia

en.wikipedia.org

Microsoft Public License

was: Microsoft permissive license, submitted on Aug 10, 2007

opensource.org

 

[Jer]

These are rather alien to open licenses though.

One of the problems with all of this is Wizards misunderstanding what an open license is or pretending that the OGL 1.1 or 1.2 are actually open licenses and not just licenses.

It's hard to be on the same page with them when they're attempting to rescind an open, share-alike license and think a closed, two-party license is the equivalent. It's like we're speaking two different languages.

 

[Snarf Zagyg]

That something is 'standard boilerplate' in a standard form contract does not mean it is not 'nefarious or ill-intended'!

I disagree. Bespoke terms are what speak of specific ill intent.

You can (and people do) question boilerplate. But the inclusion of boilerplate is not evidence of specific ill intent, and to be honest, it quite tiring to see people repeatedly point to provisions that are in tens of millions of contracts as evidence of Hasbro's ill intent.

But, you know, you do you.

 

[Snarf Zagyg]

One of the problems with all of this is Wizards misunderstanding what an open license is or pretending that the OGL 1.1 or 1.2 are actually open licenses and not just licenses.

It's hard to be on the same page with them when they're attempting to rescind an open, share-alike license and think a closed, two-party license is the equivalent. It's like we're speaking two different languages.

Yep. It's almost like I wrote, repeatedly, that this is not an open license.

That said, I don't think that Wizards is misunderstanding what an open license is. I also don't think that are pretending. I think it goes to Section 9 of OGL 1.0(a)- they are calling this OGL 1.2 not because it's an open license, but because it's an updated version of the prior license.

That's the whole ballgame. That's why they are keeping the name. This is the new and authorized license. Otherwise, they would just call this GSL 2.0 or something.

 

[SoonRaccoon]

it quite tiring to see people repeatedly point to provisions that are in tens of millions of contracts as evidence of Hasbro's ill intent.

How about the idea that these clauses (edit: these clauses being ones that limit access to the courts, for example) being in tens of millions of contracts as being a problem in and of itself?

It being in this contract (OGL 1.2) is just a single instance of that problem.