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

[clearstream]

consider a typical sub licensing agreement

Does it actually say the party that ‘owns’ the thing being licensed does the granting? - I don’t think so. I think it would say the sublicensor grants or something similar. Though you’ve seen a lot more sublicensing agreements than I do I could be wrong.

Power to sub-license is granted to a licensee by the party that owns the thing.

Perhaps each link in the chain must be considered to create a new property, which can then be licensed onward (rather than sub-licensed)?

 

[Maxperson]

So they overlooked the creation of an encumbrance. That, too, happens...

Or they had no idea what D&D would become and didn't care about it then.

 

[Maxperson]

Eg you can imagine, say, Mercedes trying to impose a rule that when you buy the car from the dealer, you are required not to change or damage the symbols on it. But the default common law response is "It's your car, you can do what you like with it, and the dealers agreement with Mercedes doesn't bind you!"

Wait! You mean I can tear that tag off of my mattress?!

 

[Maxperson]

If I may

Outside the OGL the SRD was declared by WOTC as OGC. I believe @pemerton is simply saying there's nothing that labeling the SRD as OGC has any effect on outside the contract. I think we all are in agreement there. I think he brings this up because he is under the mistaken impression that we don't agree with that. (Which also is his basis for the statutory and legislature criticism he puts toward us).

All that said I agree with you that OGC must exist as OGC before it can be licensed. If it didn't exist then there would be nothing to license. @pemerton disagrees and has said that OGC exists only upon the contract being formed when I previously asked the same question. I think the difference there is that for him, OGC existing entails certain contractual obligations. When we talk about it existing, we don't mean that. For us, it can exist and have no effect except within a contractual relationship and with respect to a contractual offer.

You can license anything you have the rights to. There's no need to label something as OGC. What WotC did was use OGC and PI as terms to differentiate what you can use with the open license and what you can't. They could have selected Jabberwocky as the term used for the stuff you can't use, and Bandersnatch for the stuff that you can.

Outside of the contract those terms don't exist. Nobody can just say, "That stuff is open gaming content so I'm going to use it however I want, because open content." You have to actually enter into the licensing agreement before any OGC becomes open content to you. Before then it's all WotC content that you can't use in any product.

 

[FrogReaver]

You can license anything you have the rights to. There's no need to label something as OGC. What WotC did was use OGC and PI as terms to differentiate what you can use with the open license and what you can't. They could have selected Jabberwocky as the term used for the stuff you can't use, and Bandersnatch for the stuff that you can.

No disagreement from anyone.

Outside of the contract those terms don't exist.

Yes they do. I’ve not entered into contract with WOTC and I can talk of them.

Nobody can just say, "That stuff is open gaming content so I'm going to use it however I want, because open content." You have to actually enter into the licensing agreement before any OGC becomes open content to you. Before then it's all WotC content that you can't use in any product.

Agreed here but this has nothing to do with what we are saying. There’s some severe misunderstanding taking place if you believe we are saying that.

 

[FrogReaver]

Power to sub-license is granted to a licensee by the party that owns the thing.

Not in dispute. What do you imagine the relevance to my question with this fact?

 

[Maxperson]

Yes they do. I’ve not entered into contract with WOTC and I can talk of them.

But they have no substance at all. All you really can do is say, "Look over there. If you enter into a contract with WotC that content becomes OGC for you." No OGC exists for you. It only comes into existence for you if you enter into the contract with WotC.

 

[FrogReaver]

But they have no substance at all. All you really can do is say, "Look over there. If you enter into a contract with WotC that content becomes OGC for you." No OGC exists for you. It only comes into existence for you if you enter into the contract with WotC.

Just sounds like you are arguing with me about what it means to exist. That’s not useful. It’s obvious we mean 2 different things by it. Why not address what I mean by it?

 

[pemerton]

Power to sub-license is granted to a licensee by the party that owns the thing.

Perhaps each link in the chain must be considered to create a new property, which can then be licensed onward (rather than sub-licensed)?

The second sentence here is wrong as far as the common law is concerned. A licence is not a proprietary interest - its a personal right. A power to sub-licence is a power enjoyed by a licensee to create new licensees in respect of the licensed properties. It is the property owner against whom the licence operates - if we are talking about tangible property, as a bar to an action for trespass; in the case of IP, as a bar to an action for infringing use.

 

[clearstream]

The second sentence here is wrong as far as the common law is concerned. A licence is not a proprietary interest - its a personal right. A power to sub-licence is a power enjoyed by a licensee to create new licensees in respect of the licensed properties. It is the property owner against whom the licence operates - if we are talking about tangible property, as a bar to an action for trespass; in the case of IP, as a bar to an action for infringing use.

I mean not that the licence is a property, but that the derivative work is a property; and that a sub-licence is not flowing through that property, but rather a new licence is being created at that point.

My thought is to break any supposed link back to the original: it is a chain of licences, and not a licence and chain of sub-licences.