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

[FrogReaver]

Suppose W owns the copyright in X, and W licenses A to use X, and the terms of the license include both a power and an obligation to sub-license X to other parties on very particular contractual terms. A enters into such a contract with B, thereby bringing it about that B enjoys a licence from W in respect of X.

That’s what I said makes sense. Then I followed it up with a question that keeps getting glossed over - Why is the language used here atypical when compared to the language other sublicensing contracts?

In the scenario just described, it was A's action, in entering into the contract with B, that brought the licence into being. It is W's property that is the subject matter of the licence, and thus W who has been brought into the licensor-licensee relationship with B.

I keep saying that makes sense. My question is why this formulation isn’t seen in other typical sublicensing contracts.

What is at stake in asking whether it is W or A who granted the licence?

Let’s establish which it is first and then look at implications.

 

[pemerton]

There seems to be some confusion in some recent posts about what a licence is, in legal terms.

A licence is a personal right - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property.

By definition, therefore, a licence is a legal relationship - one of permission - between a particular party (the licensee) and a property owner (the licensor).

If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter.

Speaking in the abstract, it is possible that a sub-licence might involve different terms from the head licence - eg W licenses to A royalty free, and then A sub-licenses to B and requires that B pay A (or W) $1 per copy made. Whether or not A has the power to impose those sorts of conditions on B, as part of the sub-licence, will depend on the nature of the power that W conferred on A. What the consequence for B of breaching such a condition would be will depend on many considerations, both of factual and contextual detail and also legal principle (eg does the licence come to an end such that B is liable to W for interfering with W's property? Or does B retain a licence but incur an obligation to play A damages for breach of contract? Or something else?)

But in the context of the OGL, the power to sub-license is limited to sub-licensing on the exact terms of the OGL. So each party in the chain of contracts enters into exactly the same licensing arrangement with the upstream contributors whose work has been licensed to those downstream.

 

[pemerton]

@FrogReaver

I've explained to you what the mechanism is: A makes an offer to B, which B accepts, and as a result B enjoys a licence in respect of W's property.

Section 4 uses the verb "grant" in relation to the contributors. To me that seems mostly a drafting convenience, as it covers both multiple parallel contributors as well as contributors at different places in the "stream": eg W licences to A and B, then C publishes a work that draws on both A's and B's material - the licence terms require C to include only one copy of the OGL, that names W and A and B in its section 15; and so both A and B are unmediated contributors, whereas W's contribution is mediated via A and B.

Characterising the grant as flowing from all those contributors makes the drafting straightforward, and does not cause any problems given that all the licences are on exactly the same terms and govern exactly the same content.

Why is it important to you to label one of A or W the grantor? What legal consequence are you trying to establish or investigate?

 

[FrogReaver]

There seems to be some confusion in some recent posts about what a licence is, in legal terms.

A licence is a personal right - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property.

By definition, therefore, a licence is a legal relationship - one of permission - between a particular party (the licensee) and a property owner (the licensor).

I’m with you this far (as best as a layman can be).

If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter.

This sounds nearly identical to your description of acting as an agent earlier in the thread. Maybe a brief explanation on the difference there.

Speaking in the abstract, it is possible that a sub-licence might involve different terms from the head licence - eg W licenses to A royalty free, and then A sub-licenses to B and requires that B pay A (or W) $1 per copy made. Whether or not A has the power to impose those sorts of conditions on B, as part of the sub-licence, will depend on the nature of the power that W conferred on A. What the consequence for B of breaching such a condition would be will depend on many considerations, both of factual and contextual detail and also legal principle (eg does the licence come to an end such that B is liable to W for interfering with W's property? Or does B retain a licence but incur an obligation to play A damages for breach of contract? Or something else?)

But in the context of the OGL, the power to sub-license is limited to sub-licensing on the exact terms of the OGL. So each party in the chain of contracts enters into exactly the same licensing arrangement with the upstream contributors whose work has been licensed to those downstream.

Yes.

 

[FrogReaver]

@FrogReaver

I've explained to you what the mechanism is: A makes an offer to B, which B accepts, and as a result B enjoys a licence in respect of W's property.

Section 4 uses the verb "grant" in relation to the contributors. To me that seems mostly a drafting convenience, as it covers both multiple parallel contributors as well as contributors at different places in the "stream": eg W licences to A and B, then C publishes a work that draws on both A's and B's material - the licence terms require C to include only one copy of the OGL, that names W and A and B in its section 15; and so both A and B are unmediated contributors, whereas W's contribution is mediated via A and B.

Characterising the grant as flowing from all those contributors makes the drafting straightforward, and does not cause any problems given that all the licences are on exactly the same terms and govern exactly the same content.

Why is it important to you to label one of A or W the grantor? What legal consequence are you trying to establish or investigate?

Thank you. This has helped.

 

[pemerton]

This sounds nearly identical to your description of acting as an agent earlier in the thread. Maybe a brief explanation on the difference there.

So I just Googled "sub licence agency" and found this link to a 2013 decision of the High Court of England and Wales (its place in the judicial hierarchy is perhaps comparable to the US Federal District Court): High Court finds that a sub-licensee acts as an agent of the original licensor, when it grants further sub-licences

The reason there are not always straightforward answers to the questions you are asking is because the common law does not work as a "top down" rationalised system of legal principle. It is a collection of principles established by a type of generalisation from decided cases that are re-applied over time over different fact situations.

So a concept like that of sub-licensing of IP can emerge in one area of law, and the concept of agency can be developed in a different area (predominantly contract law) and it can take from 1925 to 2013 for a case to come to court which requires the court to say more about how the two legal concepts are related.

In the case of the OGL sub-licensing regime, I doubt that an agency analysis adds very much; if you read the blog I linked to, you'll see the significance of the use of agency concepts was to deal with questions of ostensible authority, actual authority, whether the sub-licence survives termination, etc. In the case of the OGL this is all known: the parties are listed in the section 15 statement, section 13 expressly provides for the survival of sub-licences, and there is (in my view, on the best legal construction of the OGL's terms) no provision for cancelling licences otherwise than by breach as per section 13.

One important law that applies to agents is the law of fiduciary obligations, which governs the way they may use their powers. But the power that the OGL confers to sub-license involves no discretion - the licensee must make the offer, and acceptance is not conditional on any decision or choice by the licensee, and the emergence of the sub-licence upon accepting the offer is automatic. This lack of discretion makes me doubt whether fiduciary law would have any work to do.

Hence why, as I said, I doubt that an agency analysis is going to add much.

 

[S'mon]

So whereas I'm not an expert on IP law, I would regard myself as a bit of an expert in the rule of law literature.

A recurring them in some of that literature is "the culture of legality". And the UK is often put forward as an example (so is Australia): that is, that important actors treat the legal constraints on their action as actual constraints. A contrasting view is that set out in this (translated and then paraphrased) Bulgarian proverb: The law is like a gate in an open field - you could pass through it if you wanted to, but only a fool would bother!

So I would see the allotment owners not only as manifesting the British culture of deference (which I accept is a real thing) but also a bit of a shock at the departure from the culture of legality.

In the rule of law literature, the US is also normally held up as a culture-of-legality society. And compared to Bulgaria that is probably true. Even this WotC episode is not a counter-example, in the sense that we've got good reason to think that if the matter went to court the judges wouldn't be bribed, the orders would be issued in a lawful fashion, and WotC would not use extra legal means (eg sending stand-over men to threaten the litigants) in order to circumvent an adverse ruling.

But I do think that especially in the US, eand specially among wealthy private actors, there may be the occasional need to litigate in order to remind them of the force of legality!

I was just reading over old posts from January, and this line really stood out. Who would have guessed in January that a few months later WoTC actually would have gained a reputation for extra legal means eg sending stand-over men to threaten people they had a beef with?

 

[S'mon]

The Rule of Law is narrow and constrained; always the forces of Chaos prey upon her borders...

 

[Beleriphon]

There seems to be some confusion in some recent posts about what a licence is, in legal terms.

A licence is a personal right - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property.

By definition, therefore, a licence is a legal relationship - one of permission - between a particular party (the licensee) and a property owner (the licensor).

If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter.

If it helps there's a very good gaming example of exactly this concept. The Tolkien Estate owns The Lord of Rings and related works. They licensed tabletop games set in Middle-Earth to a company who then sublicensed the RPG stuff to Cubicle 7. The Cubicle 7 license fell apart and was eventually licensed to Free League Publishing.

 

[Whizbang Dustyboots]