Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[pemerton]

Ah, that would be my question (1). If indeed Paizo is able to contradict it, then as described the rest of the scenario is invalidated.
This entire line of reasoning was spawned by this question being confirmed by @Hussar :

The idea was that as Paizo is not a party of the contract between Wizards and A, they are not in a position to sue A over their claimed interpretation of that contract.

So how could Paizo contradict this?

In your post 2484, you referred to "A's much publicized claim as to what the OGL mean." I don't know how you are envisaging A making their much-publicised claim, but presumably the same avenues are open to Paizo.

To me, the most obvious place for Paizo to assert its right in respect of its trademarks would be on its website, and also in its Product Identity declaration on its published works.

 

[FrogReaver]

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.

I wouldn’t need to show they are required only whether they did. But more importantly I’m not trying to claim Wotc contracted with itself. I’m claiming They contracted with the contributors, ex: Paizo, etc.

Correct in that it's required if you use the OGL.

Agreed.

WotC isn't required to provide any notice.

Yet they did!

 

[pemerton]

The way I read the OGL 1.0a is that the Contributors are always the licensor (using your view a specific case might be WOTC being 'the Contributors' for the SRD 5.1). Thus, it seems that Licensees of the OGL 1.0a aren't sublicensing anything when posting the OGL 1.0a, but instead just posting 'the Contributors' offer.

What do you mean, in legal terms, by "posting the Contributors' offer"?

Also, when you refer to "the Contributors' offer", which Contributor are you referring to? There is no single offer made by all owners of the copyright in OGC. For instance, WotC made an offer in respect of the OGC it declared in its various SRDs some number of years ago (different numbers of years for different SRDs). But probably some publisher published something under the OGL, licensed by WotC, just last week (or last month or whenever), and that publisher made its offer at that point.

If so, then this has downstream implications on what deauthorization would accomplish (assuming they can deauthorize) and also, what a withdrawl of the offer would accomplish (assuming they can withdraw the offer).

What downstream consequences?

I can't work out what legal state of affairs you're setting out to describe, and so I can't work out what legal consequences you think might follow from it.

But frankly I don't understand why you and some other posters are making such heavy weather of relatively clear elements of the OGL.

W(otC) offers to license elements of its SRD (ie the ones it notifies as OGC) pursuant to the terms of the OGL v 1.0a. Parties who take up that offer enter into a contractual relationship with WotC. The contract includes conferral on them of a power to license the OGC, and derivative material of that OGC, to downstream parties. They are also contractually obliged to offer such a licence to all the world, in the terms of the OGL. (Under section 9, they have a power to pick and choose among authorised variants when they do this. In practice, this has not turned out to be very significant because there are only two variants and everyone seems to prefer to use v 1.0a because it provides clearer protection of Product Identity.)

Let A be a downstream licensee of W, who in turn licenses to B. At that point, B enters into a contract with A. Does B also enter into a contract with W? If B is using W's OGC (and using W's OGC is defined to include using material derivative of W's OGC, which might be A's OGC) then the answer is perhaps - it might depend on B's state of mind vis-a-vis W's offer. On the other hand, if W has withdrawn its offer, then the answer presumably is No. Does it matter? It's not clear why it would, given that all that would flow from B's contract with W would be a licence in the terms of the OGL in respect of W's OGC, and B can already get that from A, in virtue of the powers that A gains from their licence from W.

Suppose, contrary to what I think is the only plausible interpretation of the OGL v 1.0a, W has a power to void - or "de-authorise" - all the licences that exist in respect of its OGC. I don't see how it would matter to the exercise of that power, and the consequences of its exercise, that some of those licences were granted directly by W and that others were granted by A by way of sub-licence.

But as I said, I don't see any plausible argument that W has such a power. As I've already posted (eg #2140) the real action, it seems to me, pertains to the subject-matter of the licences granted by W, and the way (if any) in which the endurance of that subject-matter depends upon W keeping its offer to license on foot. That doesn't depend either on how the licences in respect of that subject-matter were granted, as best I can see.

 

[Enrahim2]

What jurisdiction's consumer law do you have in mind?

Well, I live in Norway, where by my understanding consumer protection might be stronger than most places. But I realize that this tangent is likely not very interesting, as I think the only remedies this kind of law typically allow for is refund of products (which I get the impression is not something many is that interested in - edit: though it would definitely have been a potential vessel to put further pressure on wizards).

In your post 2484, you referred to "A's much publicized claim as to what the OGL mean." I don't know how you are envisaging A making their much-publicised claim, but presumably the same avenues are open to Paizo.

To me, the most obvious place for Paizo to assert its right in respect of its trademarks would be on its website, and also in its Product Identity declaration on its published works.

In my hypothetical scenario the main vessel A's interpretation would be widely publicized would be trough the growth of products basing themselves on that interpretation. I do however agree that even in the presence of that amount of misinformation, it might be considered common due diligence to check the legal section of the website of the owner of the IP if you are planning to put significant investments into such a project.

 

[pemerton]

I wouldn’t need to show they are required only whether they did. But more importantly I’m not trying to claim Wotc contracted with itself. I’m claiming They contracted with the contributors, ex: Paizo, etc.

To the best of my knowledge there is no contract between WotC and Paizo in which Paizo is a contributor of OGC. Of course, there is a contract (maybe more than one) between WotC and Paizo in which WotC is a contributor of OGC and Paizo a licensee in respect of that OGC.

WotC isn't required to provide any notice.

Yet they did!

When WotC offers to licence its work under the OGL, which uses the notion of Open Game Content as the principle conceptual device for identifying the licensed content, WotC naturally affixes a notice to its work specifying which content it is licensing. Otherwise its offer would be incomplete or incoherent.

This has nothing to do with WotC being under any legal obligation to provide any notice of anything.

 

[pemerton]

In my hypothetical scenario the main vessel A's interpretation would be widely publicized would be trough the growth of products basing themselves on that interpretation.

I don't see how this would establish an interpretation of anything. Maybe A believe that they are entitled to use trademarks to indicate compatibility. Maybe they believe that D&D is not a trademark. Maybe they believe they are infringing and don't care.

I do however agree that even in the presence of that amount of misinformation, it might be considered common due diligence to check the legal section of the website of the owner of the IP if you are planning to put significant investments into such a project.

If someone publishes work drawing on another party's IP, and doesn't take any steps to determine whether or not that other party permits it, I have little sympathy if the IP owner asserts its/their rights against that party. And particularly not in the context of the OGL, which makes explicit provision for protection of Product Identity, such that the licensor (eg Paizo) whose work B is drawing on will have made an express declaration of Product Identity as part of their offer to license their OGC.

 

[Maxperson]

Yet they did!

What 5e book did they put it in?

 

[FrogReaver]

What do you mean, in legal terms, by "posting the Contributors' offer"?

It's obvious. Please stop the 50,000 question pedantry.

Also, when you refer to "the Contributors' offer", which Contributor are you referring to?

Obvious again - Any given Contributor's offer. It's really not complicated. Which is why the 50,000 question pedantry is so annoying.

There is no single offer made by all owners of the copyright in OGC.

I specifically said: (using your view a specific case might be WOTC being 'the Contributors' for the SRD 5.1)

For instance, WotC made an offer in respect of the OGC it declared in its various SRDs some number of years ago (different numbers of years for different SRDs). But probably some publisher published something under the OGL, licensed by WotC, just last week (or last month or whenever), and that publisher made its offer at that point.

As I've noted - the point you are bringing up here isn't related to the content of my post. That's a different discussion and one I'm not trying to have again right now.

What downstream consequences?

I can't work out what legal state of affairs you're setting out to describe, and so I can't work out what legal consequences you think might follow from it.

My proposition isn't complicated here. WOTC is the sole licensor of the SRD 5.1 under the OGL 1.0a. If you are using SRD 5.1 content then you are licensed with WOTC, no matter if I received my copy of SRD 5.1 from 'not WOTC'.

But frankly I don't understand why you and some other posters are making such heavy weather of relatively clear elements of the OGL.

1. To explore other potential interpretations
2. Because I think at least some parts of current interpretations are incorrect.

W(otC) offers to license elements of its SRD (ie the ones it notifies as OGC) pursuant to the terms of the OGL v 1.0a. Parties who take up that offer enter into a contractual relationship with WotC. The contract includes conferral on them of a power to license the OGC, and derivative material of that OGC, to downstream parties. They are also contractually obliged to offer such a licence to all the world, in the terms of the OGL. (Under section 9, they have a power to pick and choose among authorised variants when they do this. In practice, this has not turned out to be very significant because there are only two variants and everyone seems to prefer to use v 1.0a because it provides clearer protection of Product Identity.)

They - assuming you are referring to the licensees - are not the licensors of OGC under the OGL 1.0a. The Contributors, aka the copyright holders, are the licensors under the OGL 1.0a. Licensses do not hold the copyrights. Thus, licensees do not make any offers relating to the OGC in OGL 1.0a.

The view that WOTC licenses SRD 5.1 content to me and then I sublicense it to you under the OGL 1.0a is flat out incorrect.

 

[FrogReaver]

What 5e book did they put it in?

SRD 5.1

 

[pemerton]

It's obvious. Please stop the 50,000 question pedantry.

Obvious again - Any given Contributor's offer. It's really not complicated. Which is why the 50,000 question pedantry is so annoying.

It's not obvious to me. You are trying to talk about legal relationships but not using clear terms of legal analysis.

My proposition isn't complicated here. WOTC is the sole licensor of the SRD 5.1 under the OGL 1.0a. If you are using SRD 5.1 content then you are licensed with WOTC, no matter if I received my copy of SRD 5.1 from 'not WOTC'.

<snip>

They - assuming you are referring to the licensees - are not the licensors of OGC under the OGL 1.0a. The Contributors, aka the copyright holders, are the licensors under the OGL 1.0a. Licensses do not hold the copyrights. Thus, licensees do not make any offers relating to the OGC.

This is an illustration of my point. You are running together two distinct meanings of "licensor":

* The party whose IP rights are licensed;

* The party whose conduct brings about the licensing of certain IP rights.​

The whole point of the OGL - what makes it "viral" - is that downstream parties can engage in conduct which licenses (in the sense of my second dot point) IP belonging to upstream parties, whose IP is thereby licensed (in the sense of my first dot point). This is what is meant by a sub-licence.

You also seem to be running together X enjoys a licence to use WotC's IP with X has entered into a contract with WotC that grants a licence to use WotC's IP. As per my post that you replied to, there can probably be instances of the first that are not instances of the second.

The view that WOTC licenses SRD 5.1 content to me and then I sublicense it to you under the OGL 1.0a is flat out incorrect.

No it's not. What's incorrect is your belief about how legal powers to confer licences to use IP work. You appear not to recognise that one party can confer on another party a power to confer a licence on a third party in respect of the first party's IP.

I think at least some parts of current interpretations are incorrect.

To be blunt, your posts reveal that you don't have the expertise to make that sort of judgement.