An Unexpected Victory, Unconditional Surrender, and Unfinished Business.

[pemerton]

The only case I am aware of in the United States that is on point is SCO vs. IBM and that was about the GPL. SCO (or the previous company they bought the IP from) for a time offered Linux under the GPL along also contributed work to Linux. And this happened to incorporate the IP they were fighting about. But SCO tried to say that they deauthorized their contribution. And ultimately did not win their point.

But to be clear this was a messy, messy, case and this was just one of the many IP issues they argued about.

I just read the 2018 decision: SCO GROUP, INC. v. INTERN | 879 F.3d 1062 (2018) | 20180102045 | Leagle.com

As far as I can see, it says nothing about the workings of the GPL or CC licence. It seems that SCO lost their claim to copyright, and that Novell who won on that point did not go on to assert any copyright infringements.

The only case I've read directly on point is this one - Great Minds v. FedEx Office & Print Servs., Inc., 886 F.3d 91 | Casetext Search + Citator - and in this case the court narrows the effectiveness of the "automatic offer" provision, though not in a manner that I think would be relevant to the issues that would arise were WotC to purport to withdraw its offer.

 

[robconley]

I just read the 2018 decision: SCO GROUP, INC. v. INTERN | 879 F.3d 1062 (2018) | 20180102045 | Leagle.com

The case was a muddled mess and that is being charitble

The Wikipedia article should provide enough info to point you to where you can find the details in various legal databases

SCO–Linux disputes - Wikipedia

en.wikipedia.org

This statement by the Free Software Foundation was typical at the time.

FSF Statement on SCO v. IBM - GNU Project - Free Software Foundation

FSF Statement on SCO v. IBM lawsuit

www.gnu.org

Again this is the closest that anything like the OGL was tested in courts. In this case Unix, Linux, and the GPL. And like the current situation, there was a public relations component. In this case, one that went disastrous for SCO.

 

[Enrahim2]

I think the complication with all those points is if you want to use 1.0a content, you're going to also need to also use 1.0a or CC licenses with it. Which makes it more complicated rather than less. If all you're doing is using 100% original stuff with core rules (no copyrighted content) then sure ORC can be a clean method of doing it. But if you want a Beholder in it, you'll need to also include a CC license. In which case just about all of those benefits go away.

Of course it is going to be tricky to use other's 1.0a content exclusively under ORC, as that is actively prohibited trough the 1.0a terms? Dual licenced content like the 5.1SRD is possible to work with, but the wast majority of legacy 1.0a content is effectively stuck there, with CC not really helping either.

You asked about the  benefit of ORC, and you didn't see that you limited it to D&D scope. Yes, the main  drawback of ORC is likely going to be that no D&D related material are likely to be published under it by wizards (in the immediate future).

How hard it will be to use the 5ed via CC in ORC is yet to be seen. I wouldn't be surprised if ORC might contain special provisions regarding CC material just to simplify such use - just because of this move by wizards.

 

[LordRuyn]

How hard it will be to use the 5ed via CC in ORC is yet to be seen. I wouldn't be surprised if ORC might contain special provisions regarding CC material just to simplify such use - just because of this move by wizards.

The ORC will have to include such a provision if Paizo want to publish Pathfinder under it. This is from the core rulebook under "external tools":

External Tools: Lines and veils were originally published in Sex & Sorcery, by Ron Edwards, © 2003, Adept
Press. The X-Card by John Stavropoulos (X-Card by John Stavropoulos) is published under a Creative Commons
Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) License. They are used here by permission, and are not Open
Game Content released under the Open Game License.

 

[Saracenus]

@pemerton
How you would receive the SRD 5.1 CC if WotC were to remove it from the creative commons license was not clear to me. I read through this post and it made thing a little clearer (Note: This is not legal advice and the author is not a lawyer):
Q: Can You Revoke a Creative Commons License? A: No. Er… Sort Of? Maybe?
It is in the context of publishing a textbook (close enough) but it mainly deals with changing your creative commons license, in essence having a dual license. It is less clear about the removal of the material from CC. The take away was be very cautious choosing your CC license.

The comments section did give me this link that may be more helpful:
CC Legal Database
This list all cases that affected a CC license. Most of the US cases are from photographers.

There was talk in the comments section about what happens if a creator removes their work and potentially how they could still access it, but this is not a group of lawyers talking about this but academics involved in publishing research and learning.

My take away on the problem for WotC pulling their material published under CC, i.e. they take down the website hosting the SRD 5.1-CC is that any copy of their work out in the wild (either hosted somewhere or in a printed somewhere) continues to offer the license for anyone finding it or being given a copy of it.
WotC also chose one of the most permissive CC licenses possible, so there is no effective way to restrict it later with a more restrictive CC license. In the TTRPG space, as soon as someone publishes the SRD 5.1-CC and hosts it, the downstream effect of the license will keep it going whether WotC pulls their version of it or not. In my opinion, which legally means nothing.

My take away, consult a lawyer versed in IP law to figure this out and have them explain to you the risks involved because I don't think there is any case on record to give you guidance on this specific manner.

​

 

[pemerton]

How you would receive the SRD 5.1 CC if WotC were to remove it from the creative commons license was not clear to me.

<snip>

My take away on the problem for WotC pulling their material published under CC, i.e. they take down the website hosting the SRD 5.1-CC is that any copy of their work out in the wild (either hosted somewhere or in a printed somewhere) continues to offer the license for anyone finding it or being given a copy of it.

The thing in your second paragraph is the "automatic offer" that is attached to any receipt of the licensed material from a licensee. The clear intention in the drafting of the licence is that this automatic offer operates independently of any actual intention of the licensor - the point of legal interest, at least for me and the academic papers I've been referring to (one of whom is now Chair of the Board of CC) is how the automatic offer works as a legal mechanism.

 

[Saracenus]

The thing in your second paragraph is the "automatic offer" that is attached to any receipt of the licensed material from a licensee. The clear intention in the drafting of the licence is that this automatic offer operates independently of any actual intention of the licensor - the point of legal interest, at least for me and the academic papers I've been referring to (one of whom is now Chair of the Board of CC) is how the automatic offer works as a legal mechanism.

And I don't think you are going to have a direct answer until it is tested in a court of law. Everyone is going to have opinions on the matter (you, me, and everyone else) and that is what they are, opinions. Is there 0% risk in the scenario you outlined, nope. I am pretty sure IP lawyers will likely say you are on steadier ground with CC than with the OGL as the language has kept pace with current IP law and precedent (and it does contain the word irrevocable), where as the OGL 1.0a suffers from far more ambiguity and dated ideas. It will be up to the individual to access their risk if they want to go forward with the SRD 5.1-CC.

 

[pemerton]

And I don't think you are going to have a direct answer until it is tested in a court of law.

I think it's quite feasible to develop legal analyses of the "automatic offer" mechanism. I've only known about it for a few days and have already found multiple interesting discussions of it in the scholarly literature, plus a 2018 court case. Law isn't magic!

 

[Cadence]

Law isn't magic!

As a tangent...

In the US it sometimes feels like the biggest cases come down to whatever the current majority of the supreme court thinks - how much they value precedent, how they interpret language from earlier ages including in the constitution, how much they weigh effects on political or economic stability, how much they value the respect the court has, etc...

What is Australia's final decider and does it periodically have great upheavals in how things are ruled on and what might get revisited? Do you have a favorite case where they made a decision that was controversial?

 

[Saracenus]

I think it's quite feasible to develop legal analyses of the "automatic offer" mechanism. I've only known about it for a few days and have already found multiple interesting discussions of it in the scholarly literature, plus a 2018 court case. Law isn't magic!

I agree, the law is not magic. I am a housing provider, which boiled down to its essence is a contract between two parties. Because we are heavily regulated by Federal, State, and Local laws, statutes, and ordinances there are constant clashes of between these various forms of legislation. I help guide that legislation in my state advocating on the behalf of housing providers and on behalf of my tenants (In fact, I just got done testifying in front of a Oregon Senate Committee this morning on a bit of proposed legislation). I also help create the forms (i.e., the contracts you sign). Every lawyer I work with can tell me what they believe the laws say and what it really means, but until that law is actually challenged in court and it is held up or struck down, they will never give me a 100% guarantee that it is so.

Yes, you can come of with a cogent legal analysis of the "automatic offer" mechanism. It might even be the likely correct one. But you will never have confirmation until a legal challenge to it is resolved. Your analysis will tell you the likely risk of publishing under the CC version of the the SRD. That is generally enough to make a choice. I hope the 2018 court case resolves this issue for you. Nothing I saw from my skim of the CC-BY licenses cases in the CC database showed one that did.

I thank you for bringing this issue to our attention and if you make or find a good analysis of this (or better a court precedence) I look forward to you posting about it so we can move beyond the stalemate we are at .