Hussar
Legend
Effectively yes. Who would sue you?
Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
Effectively yes. Who would sue you?
I get what you're saying. I think a downstream licensee (D) might also be able to take action - even though section 13 secures their licence in the event of a termination upstream (ie of U's licence), there's still at least an argument that D has a sufficient interest in U's performance of U's obligations to support a suit. (What the remedy might be is a further question)
Well as I think you are implying by your rhetorical question, there isn't one. (Putting to one side the case where WotC published others' OGC in the 3E era - you may have seen my post about that not too far upthread.)
The idea that WotC binds itself by contractual obligations simply by offering to license its IP under the terms of the OGL is nonsense, in my view. All the interesting questions arise once a party takes up the offer and a contract actually comes into existence between WotC and that party.
I'd be surprised if there is no rule in US copyright law for determining what happens to corporation-owned IP in the event that the corporation winds up.
I don't know whether or not the successor to WotC's rights - whoever that might be - is bound by WotC's licence agreement.
I think I've made my view of @FrogReaver's assertions pretty clear.
Maxperson
Morkus from Orkus
Sure, but you haven't shown any solid legal procedure that requires WotC to contract with itself through the license. You need to show that before anything in the OGL matters.
Correct in that it's required if you use the OGL.
WotC isn't required to provide any notice.
First, an analogy.
Wherever you live, there are probably laws about bicycles - for instance, about whether or not they can be ridden on footpaths, about whether or not they must have lights and a bell, about when and how cyclists must signal turns and changes of lane, etc.
Those laws will talk about "cyclists" and "bicycles" and the like.
So then you could ask, Am I (pemerton) a cyclist? Is my bike (that I ride around on most days) a bicycle?
And the answer is - I am the rights sort of entity to be a cyclist (ie a human being who rides a bike from time to time) and my bike is the right sort of entity to be a bicycle. But I am not governed by the law in your jurisdiction about cyclists and bicycles, as the law in your jurisdiction does not purport to govern what happens in Melbourne.
It's conceivable, of course, that a legislature that exercises authority in Melbourne might borrow the text of your jurisdiction's law, and enact a law in exactly the same terms in Melbourne. But that still wouldn't make me a cyclist in your jurisdiction. I would be a cyclist in a different jurisdiction that happens to be governed by laws that are expressed in the same terms as the laws in your jurisdiction.
Second, to turn to your question:
WotC is the right sort of entity to be a Contributor - it is a company capable of owning and licensing copyrights and trademarks.
When WotC enters into a licence agreement in the terms of the OGL, it becomes a Contributor within the context of that agreement. And as WotC's licensees sub-license down the chain of agreements, WotC becomes a Contributor in the context of more and more agreements .But it would be an error to suppose that this makes WotC a Contributor for the purposes of other contractual relationships to which WotC is not a party, simply because those relationships happen to be expressed using the same wording as WotC has used for its licence agreement.
This is not correct. When WotC licenses its OGC, on the terms set out in the OGL v 1.0a, it enters into an agreement, which becomes binding in virtue of the exchange of consideration is set out in section 4. WotC - the Contributor (ie the copyright and/or trademark owner who has contributed OGC- see section 1) - licenses its OGC (ie the OGC it has set out in its SRD) to the other contracting party, the licensee. That is the consideration that flows from WotC to the licensee.
It might be worth adding that if WotC were not a Contributor within the meaning of section 4, then it would have licensed nothing and all uses of WotC's copyrighted text would be an infringement of WotC's copyrights. That's a sufficiently absurd conclusion that it should prompt you to re-read the contract in light of my previous paragraph.
It's an absurd reading for the reasons I've just given. The whole point of OGC publishing its SRD with a notice of OGC and an offer to license that OGC in terms of the OGL, as section 2 sets out ("This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License"), is to enable parties to accept the offer as section 3 sets out ("By Using the Open Game Content You indicate Your acceptance of the terms of this License"), thus triggering the exchange of consideration as section 4 sets out ("In consideration for agreeing to use this License, the Contributors [in the present context, WotC] grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content").
Enrahim2
Adventurer
What I find mind boggling about this is that there are definitely parties interested in maintaining the integrity of this license, including the public.
To illustrate: For the sake of argument assume wizards go defunct in a way that make their IP effectively unenforced (as @pemerton points out, going out of business might not be a sure way of this, but there might be other ways). Moreover assume Paizo is thriving.
Now assume a new company A publishes a work using 5.1SRD under OGL 1.0a, but include the claim that it is "compatible with D&D". From what has been said, Paizo is then free to inform A that they are in breach of OGL 1.0a. However what if then A is making a claim (highly unlikely to hold up in court) that they indeed is not in breach?
(1) From what I understand has been said, Paizo would then be powerless to prevent A from continuing to spread their work?
If this is the case, that can cause the following situation: People pick up A's practice and a wave of new "compatible with D&D" works starts popping up. The brand recognition cause customers to pick up their products, hurting Paizo's sales.
(2) Are Paizo still unable to do anything, despite this unfair competative advantage? If they can, what legal mechanism would allow them to do so?
Assuming Paizo is still powerless, and this situation go on for a significant amount of time. Assume now a new company B put significant investments into a product line "extending Golarion" using PFSRD under OGL1.0a under the false belief that A's argument above now is effectively settled due to industry reliance without opposition (or similar legal-like thinking). Now Paizo is clearly in a position to sue B.
(3) Could conceivably the market situation caused by Paizo not being able to stop company A affect the outcome of the case against B in terms of damages awarded, or B's ability to somehow save their investments?
B being mislead to believe their investments to be safe, is the reason I think it would be of public interest that issues related to such public licenses can get settled without it needing to be engaged by the rights holders. For instance CC seem to be open to similar abuse by for instance someone publishing copies of defunct entities work under CC.
Hussar
Legend
Now, let's be honest here. First off, the chances that the copyright to Dungeons and Dragons would ever cease to be held by someone is wildly unlikely. As in you are far more likely to spontaneously combust that this happen. WotC would have to disappear, Hasbro would also need to disappear, and both would need to disappear in such a way that they are unable to sell the rights to D&D to someone else before disappearing.
IOW, it ain't gonna happen in our lifetimes.
But, for the hypothetical - how could Paizo sue A? A is not in any sort of legal relationship with Paizo - they are not using any Paizo OGC. (Now, if they WERE using Paizo OGC, the rules change.) If you are in a contract with @pemerton and you break that contract, I can't sue you. There's nothing I can do about it. You're not in a contract with me.
There is no such thing as an iron-clad contract. They do not exist. There are always ways to mess with contracts - as we are very clearly seeing play out right now with WotC.
I imagine if, say, D&D becomes essentially abandonware, then all the issues around OGL and whatnot are largely moot. If there is no ultimate licensor granting the license, then that license doesn't carry any water.
At least, that's the way I understand it.
IOW, it ain't gonna happen in our lifetimes.
But, for the hypothetical - how could Paizo sue A? A is not in any sort of legal relationship with Paizo - they are not using any Paizo OGC. (Now, if they WERE using Paizo OGC, the rules change.) If you are in a contract with @pemerton and you break that contract, I can't sue you. There's nothing I can do about it. You're not in a contract with me.
There is no such thing as an iron-clad contract. They do not exist. There are always ways to mess with contracts - as we are very clearly seeing play out right now with WotC.
I imagine if, say, D&D becomes essentially abandonware, then all the issues around OGL and whatnot are largely moot. If there is no ultimate licensor granting the license, then that license doesn't carry any water.
At least, that's the way I understand it.
As a general proposition, there is no public interest in private parties conforming to the terms of their private agreements.
Paizo don't have any interest in the D&D trademark.
And in the example you're positing, D&D is not a trademark owned by any Contributor. Whether or not it is still Product Identity which A is contractually precluded from using is not straightforward.
I don't know how you are supposing A becomes a party to the OGL in respect of the SRD 5.1 in circumstances where WotC is defunct - who is the licensing party? Whether Paizo would have any interest in enforcing any obligation not to use that Product Identity is a further question, not straightforward if A is a party to a contract with Paizo, but reasonably straightforward (ie Paizo has no interest) if A and Paizo are not in a legal relationship to one another. Paizo has not got any general legal permission to stop its competitors using trademarks to compete with it!
How are damages measured in a passing off or similar action, in US law? I don't know. I don't see how B having a false belief about its legal rights would make a difference, though, unless Paizo is seeking exemplary (non-compensatory) damages.
The system of private law assumes that parties are capable of knowing their rights, including recognising that their legal position may not be the same as that of other parties (who eg may have different contractual entitlements, relationships to property, etc).
I mean, just because you walk into a building and don't get stopped doesn't mean I can assume I have permission to enter. (Eg this happens every day you go into your house, or perhaps your work.)
Enrahim2
Adventurer
However, what if I could claim that I had reasonable reason to believe I was invited? For instance if two houses next to each other are having identical signs reading "everyone is welcome to enter, as long as you don't wear shoes". I see a lot of people enter one of the houses with slippers. I assume it is commonly accepted that slippers do not count as shoes in this context, so I enter the other house wearing slippers. I then get sued to personal bankruptcy for ruining the floor of the second house. (It turns out that the owner of the first house was dead, which I didn't know).
This also seem ripe for hostile exploit. A bad actor set up a company A publicly offering a contract, widely actively misrepresenting what it say. People take it up, and A enforces it according to the misrepresentation. The bad actor then sets up a second company B offering a contract with the same wording but stay silent about the meaning. After people take up the contract from B assuming it mean what A said, B can then spring whatever hidden trap is set up in the contract. As B did not misrepresent the contract, and A is not part to the contract, there appear to be no way out of the contract with B. And by not being a party of the contract with A, there are no way to seek damages from A either.
My point is that both of these examples seem to be clear volitions of what I would expect anyone to be considered just. Laws are usually written to align with what is perceived as just. It might be indeed that this is an area were the laws are indeed flawed in that it enables such deeply problematic outcomes. I find it however surprising, given the widespread use of public contracts that there should be such gaping fundamental flaws in the basic law regarding this overall practice.
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