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

[FrogReaver]

There is no assumption of sublicensing. The OGL 1.0a explicitly says that there is.

IMO Not directly in the sense we are talking. Perhaps implicitly though.

"13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

This is a good starting point for establishing sublicenses exist. (Something I’ve not disputed).

But the nature of those sublicenses is also important. Are the sublicenses form licensee to sublicensee in question OGL licenses or some other license agreement. establishing that there can be sublicenses alone isn’t enough.

On that point - Since the OGL only permits licensing of OGC via OGL then any sublicenses in question must be OGL licenses. The only way that could happen is if parties sublicense under the OGL terms.

I’m convinced.

Where does the sublicensing come from?

"5.Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License"

You can't grant the rights conveyed by OGL 1.0a unless you are licensing to someone else. You don't grant them to yourself. You don't grant them to WotC. You grant them to the person you are licensing to via a sublicense.

I don’t find this part persuasive. It may only mean you have a non-OGL license to sublicense material from the copyright holder anyway you see fit.

 

[Enrahim2]

I don't think I agree that 1-3 are required for my view. But I’m not exactly sure how all the parts interplay. For example you talk about naming - I’m assuming that’s a reference to section 6? But you only have to name the contributors of the OGC you use. So to me that doesn’t follow.

I’d also add that ‘the contributors’ defined as contributors of OGC seem to accomplish your suggestion implicitly, albeit not explicitly.

Exactly! What I tried there was to spell out explicitly in legal speech was how I believed your implicit reading of the "Contributors" definition.

My impression is that the big understanding gap between you and @pemerton has been that standard contract theory require all involved legal entities involved to be well defined, and normally static once the contract has been signed. Hence trying to introduce such a dynamic understanding of the parts of a contract outlined would need to be made explicit to be "understandable" (given that it might even be well known to breach some sort of basic contractual limitation, and hence not really worthwhile to consider in an educated discussion)

I am sorry about the "name". It was not a reference to section 6. Rather it was an attempt at legalese, as I for some reason seem to think that a standard formulation in legal theory is that a contract need to "name" all relevant parts. (I really don't know from where I have gotten that idea though, so I can't site any sources). As the contract at hand clearly do not "name" the parts in the common sense of the word if we are trying to accept my understanding of your interpretation, I hence included it with quotes, hoping it would improve the readability from a legalese point of view.

 

[FrogReaver]

Just so it’s clearly spelled out, I now agree with the sub licensing view of the OGL 1.0a.

 

[Maxperson]

IMO Not directly in the sense we are talking. Perhaps implicitly though.


This is a good starting point for establishing sublicenses exist. (Something I’ve not disputed).

But the nature of those sublicenses is also important. Are the sublicenses form licensee to sublicensee in question OGL licenses or some other license agreement. establishing that there can be sublicenses alone isn’t enough.

On that point - Since the OGL only permits licensing of OGC via OGL then any sublicenses in question must be OGL licenses. The only way that could happen is if parties sublicense under the OGL terms.

Sure, but they do so via the sublicense and not directly. The OGL granting the ability to sublicense means that the sublicense has still happened via the OGL, but indirectly. Here's an analogy.

A flight that is non-stop originating from Los Angeles and ending up in Houston is like a direct license from the OGL to the one who accepts the OGL terms and becomes a licensee. If that licensee sublicenses, the trip is no longer non-stop. Now it's originating only from Los Angeles, but has a layover in Texas before continuing on to New York. New York only deals with Houston. Houston only deals with Los Angeles. But it's still only from Los Angeles that the flight(Ability to use SRD 5.1) originated.

I don’t find this part persuasive. It may only mean you have a non-OGL license to sublicense material from the copyright holder anyway you see fit.

If it was, then they would not have had to state that sublicenses survive termination. They would have also been licensed directly and it would have survived that way.

 

[FrogReaver]

Sure, but they do so via the sublicense and not directly. The OGL granting the ability to sublicense means that the sublicense has still happened via the OGL, but indirectly. Here's an analogy.

A flight that is non-stop originating from Los Angeles and ending up in Houston is like a direct license from the OGL to the one who accepts the OGL terms and becomes a licensee. If that licensee sublicenses, the trip is no longer non-stop. Now it's originating only from Los Angeles, but has a layover in Texas before continuing on to New York. New York only deals with Houston. Houston only deals with Los Angeles. But it's still only from Los Angeles that the flight(Ability to use SRD 5.1) originated.

If it was, then they would not have had to state that sublicenses survive termination. They would have also been licensed directly and it would have survived that way.

You really should learn to take the win

 

[Maxperson]

My impression is that the big understanding gap between you and @pemerton has been that standard contract theory require all involved legal entities involved to be well defined, and normally static once the contract has been signed. Hence trying to introduce such a dynamic understanding of the parts of a contract outlined would need to be made explicit to be "understandable" (given that it might even be well known to breach some sort of basic contractual limitation, and hence not really worthwhile to consider in an educated discussion)

With a unilateral contract like OGL 1.0a, only one party is clearly defined and that's the originator of the contract. The OGL 1.0a was offered up to the whole public to use according to its terms, so the other party isn't defined at all until it fulfills the terms of the contract.

That's why if I wanted to publish something tomorrow, I wouldn't have to first go to WotC and let them know. I'd simply publish my work according to OGL 1.0a and WotC would either eventually find it or not.

 

[Maxperson]

You really should learn to take the win

You conceded after I started writing and before I finished helping my wife redecorate our son's room and completed the post! No fair!

 

[rpd9803]

With a unilateral contract like OGL 1.0a, only one party is clearly defined and that's the originator of the contract. The OGL 1.0a was offered up to the whole public to use according to its terms, so the other party isn't defined at all until it fulfills the terms of the contract.

That's why if I wanted to publish something tomorrow, I wouldn't have to first go to WotC and let them know. I'd simply publish my work according to OGL 1.0a and WotC would either eventually find it or not.

Hmm that's interesting, but doesn't that then mean that there's a split between "revoking" (as in, ending an OGL-licensed works authorized use of the license) and "Offering" .. like, I don't think the OGL language related to revokability, perpetuality, etc. applies to whether or not the OGL is currently offered, but the behavior of licensees that have existing agreements.. Like, since the second party isn't defined until its used.. that means WOTC can decide to not offer it without revoking or termininating any existing licenses, just the ability to license it for new works, right?

Moot now, the CC-BY seems to solve this problem pretty handily.

That also seems to be the big difference with CC licenses.. or maybe they skirt that by saying the license is irrevokable, so once the first person accepts it, THEY can share it under those terms and the original licensor can't stop them.

 

[Maxperson]

Hmm that's interesting, but doesn't that then mean that there's a split between "revoking" (as in, ending an OGL-licensed works authorized use of the license) and "Offering" .. like, I don't think the OGL language related to revokability, perpetuality, etc. applies to whether or not the OGL is currently offered, but the behavior of licensees that have existing agreements.. Like, since the second party isn't defined until its used.. that means WOTC can decide to not offer it without revoking or termininating any existing licenses, just the ability to license it for new works, right?

They tried that with the proposed 1.2 changes. They proposed in 1.2 that the current 1.0a licensees could continue on forever, and put in a 6 month grace period for new works released under 1.0a, but then after that no more could be done.

Moot now, the CC-BY seems to solve this problem pretty handily.

Yes it does. Count me among those who are shocked by this. I thought it was a possibility, but not before they tried another time or two to meet in the middle somewhere.

 

[DavyGreenwind]

I guess we will never know for sure.