Drafts do not come with contracts attached?

[dave2008]

[bolded by my for emphasis] But that is exactly the crux of the matter: people are not mad because they didn't understand that while WotC send around a message that they were going to (figuratively speaking) kill the baby, they would actually have settled for only cutting off three of the baby's fingers. They are mad because WotC was fully ok with killing the baby in the first place.

Yes, I get that, and that is a justifiable response. But I can also see how something like this can be created without realizing that. We know the origin of this was more than 2 years ago. A lot things can happen when people look over something for 2 years and it is easy for things to get lost / misguided. Whatever the case/truth is: WotC messed up big time.

 

[Lazvon]

Agree with everything @dave2008 has said here. I am a dog off the Internet (for all you know), and am responsible for a little over $500M cost center, some years spending close to $350M in acquiring capital (IT HW/SW licenses depreciated over 60-months) and a bit in acquiring intellectual property rights.

I get presigned contracts all the time from vendors looking to close as soon as soon as possible… ABC (Always Be Closing). Obviously those contracts are going through lots of redlines back and forth with me and strategic sourcing for the technical and commercial terms, with legal for all the contractual/governing terms…

Would they love for me to just blindly counter sign the first version they sent over… absolutely, they will take every advantage they can get. That doesn’t mean it is anywhere near the final version they will accept. If we do the negotiations right everyone gave up/compromised on everything less important to them, and kept everything most important.

My opening stance is always, give it to me for free and I will sing your praises from the moutain tops (conferences, testimonials, etc) if it/you actually work as promised. So far no commercially viable company has taken me up on that opening offer, the same as I would not take them up in their opening offer in all likelihood.

I can think of only once or twice someone has presented an acceptable first draft… and they knew our terms we would accept before from prior business or we just told them or gave them our paper. But even our largest suppliers know we will be redlining for a couple weeks before signing and they do repeat $10s (or 100+ in a couple cases) of millions in business each year.

 

[Burt Baccara]

IANAL. I've worked with contracts and with in-house contract attorneys.

The distinction that is getting lost on many people is there is a difference between a contract review between two parties and an open contract. They also leave out that when sending a review copy, even if the contract does not say draft, the accompanying email (or letter) does make clear the intent.

When a vendor sends a contract for our review, it was in a word doc with signature blocks, this is true. It was not marked draft, though the accompanying email always made clear the intent that this was for our review, and if we accepted the terms a final would be sent for signature and that was not sent in an editable format.

Kyle Brink clarified the contracts were sent, and it was a click to agree—while also still maintaining this was only a draft. Conversely based on reports of what the publishers got and saw, no one who received this saw any indication this was a draft and believed it to be final, including the dates.

At best, if this was a draft, it was handled terribly with horrid communication that did not convey what the intent was. This line of reasoning leaves WotC looking completely incompetent, not just miscalculating the community—a view I do not hold.

 

[dave2008]

Kyle Brink clarified the contracts were sent, and it was a click to agree—while also still maintaining this was only a draft. Conversely based on reports of what the publishers got and saw, no one who received this saw any indication this was a draft and believed it to be final, including the dates.

This is wrong and/or misleading on two counts:

1. Kyle said the OGL was a click to through procedure. The OGL is not a contract, but a license. The contract to be signed that everyone is talking about is the Terms Sheet provided to 3PP under NDA.
2. In the Gizmodo article (you can get to from the link in the OP), the lawyer that reviewed the Terms Sheet for a 3PP (the only first hand account I believe) said the Term Sheet did include language that the contract was negotiable. However, he had the "impression" that WotC as not very flexible. It does not explain why he had this impression.

 

[Burt Baccara]

This is wrong and/or misleading on two counts:

1. Kyle said the OGL was a click to through procedure. The OGL is not a contract, but a license. The contract to be signed that everyone is talking about is the Terms Sheet provided to 3PP under NDA.
2. In the Gizmodo article (you can get to from the link in the OP), the lawyer that reviewed the Terms Sheet for a 3PP (the only first hand account I believe) said the Term Sheet did include language that the contract was negotiable. However, he had the "impression" that WotC as not very flexible. It does not explain why he had this impression.

I used the word contract as the OP was talking about contracts.

Splitting hairs between license and contract might be pedantic. From Adobe (I would think their lawyers know which way is up):

A license contract, also known as a license agreement or licensing agreement, is a type of contract where one party (the licensor) grants another party (the licensee) the right to produce, use, sell, and/or display the licensor's protected material.

Yes, Kyle mentioned an NDA, though not how that was agreed to (could have been click-through as well. Kyle mentioned the license, as click-through. Beyond that, there was some mention of some publishers perhaps getting other deals, those could be called term sheets

Term sheets are not contracts, they are just an expression of a possible business transaction and only some of the publishers got these it appears.

 

[dave2008]

I used the word contract as the OP was talking about contracts.

Splitting hairs between license and contract might be pedantic. From Adobe (I would think their lawyers know which way is up):

Yes, Kyle mentioned an NDA, though not how that was agreed to (could have been click-through as well. Kyle mentioned the license, as click-through. Beyond that, there was some mention of some publishers perhaps getting other deals, those could be called term sheets

Term sheets are not contracts, they are just an expression of a possible business transaction and only some of the publishers got these it appears.

OK, my point is the OGL, in any version, was not a document that is signed. You don't sign the OGL 1.0a and you wouldn't have signed the OGL 1.1 and you didn't sign the OGL 1.2. No one, to my knowledge, who has the leaked OGL 1.1 has said it required a signature. They said it came with a separate contract to be signed. They were different things. Some have referred to that contract as Terms Sheet, so I used the same language.

I am not making this stuff, I am just following what everyone else is saying and / or reporting. There are links in both of my threads were you can verify or read these claims by journalist or tubers with "sources."

EDIT: the title of this thread "Drafts don't come with contracts attached" is a quote from a 3PP company talking about the offer they were given. The "draft" in that quote is the OGL and the "contract" is a separate document.

 

[Burt Baccara]

OK, my point is the OGL, in any version, was not a document that is signed. You don't sign the OGL 1.0a and you wouldn't have signed the OGL 1.1 and you didn't sign the OGL 1.2. No one, to my knowledge, who has the leaked OGL 1.1 has said it required a signature. They said it came with a separate contract to be signed. They were different things. Some have referred to that contract as Terms Sheet, so I used the same language.

I am not making this stuff, I am just following what everyone else is saying and / or reporting. There are links in both of my threads were you can verify or read these claims by journalist or tubers with "sources."

EDIT: the title of this thread "Drafts don't come with contracts attached" is a quote from a 3PP company talking about the offer they were given. The "draft" in that quote is the OGL and the "contract" is a separate document.

The language is muddied, maybe by journalists, and also by people like us discussing this—example from the Gizmodo article:

It was expected that third parties would sign these Term Sheets. Noah Downs, a lawyer in the table-top RPG space who was consulted on the conditions of one of these contracts, stated that even though the sheets included language suggesting negotiation was possible, he got the impression there wasn’t much room for change.

Based on this, and Kyle Brink's choice of language, which may or may not be precise as he says he was in the know, but not aware of every detail, as well as Kyles overall story and timeline, which you may or not fully buy into, make it just murky to say the least.

My main point was that 2 parties passing a document back and forth for redlines and approval before making it binding is not the same as what happened here.

 

[dave2008]

My main point was that 2 parties passing a document back and forth for redlines and approval before making it binding is not the same as what happened here.

That may have been the intent though. There was even language in the contract that mentions negotiation (per Gizmodo). However, there was definitely some poor communication and that is on WotC.

Personally I think it is murky. I can definitely see a possibility that both parties came away with different impressions of what was submitted for "review." And that shouldn't be the case for a company as big as WotC.

 

[Snarf Zagyg]

My main point was that 2 parties passing a document back and forth for redlines and approval before making it binding is not the same as what happened here.

Given that we haven't even seen the term sheets, all we have to go on is the reporting.

The reporting is clear-

It was expected that third parties would sign these Term Sheets. Noah Downs, a lawyer in the table-top RPG space who was consulted on the conditions of one of these contracts, stated that even though the sheets included language suggesting negotiation was possible, he got the impression there wasn’t much room for change.

I'm not sure why people are still debating this, but unless and until there are actual documents produced, all we have is reporting stating that the terms were open for negotiation, and, moreover, that this was stated in the term sheet.

 

[Amrûnril]

I'm not sure why people are still debating this, but unless and until there are actual documents produced, all we have is reporting stating that the terms were open for negotiation, and, moreover, that this was stated in the term sheet.

I'm not sure what the terms being open to negotiation is meant to prove though. The underlying point is that Wizards attempted to coerce publishers into new licensing agreements based on the threat that the OGL would be rescinded and replaced with something similar to 1.1. Even if the details of the new agreements were open to negotiation, Wizards clearly intended to revoke the OGL and was actively using the threat of this unethical (and likely unlawful) action as a means of gaining leverage over publishers.