An Unexpected Victory, Unconditional Surrender, and Unfinished Business.

[pemerton]

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.

That seems sensible. The course of litigation is almost never certain. And thanks for the rest of the post which provides more context about where you are coming from in your remarks. You are experienced in weighing up legal opinions and making a decision about what sorts of risks to take.

My concern in these threads is that there is a broader culture which came close to fetishising the "irrevocability" of the OGL (I'm using inverted commas because the word, while it can have concreted legal meaning, was not given concrete legal meaning in the culture I'm describing) and then was utterly blindsided by WotC's move to try and "de-authorise (inverted commas for the same reason), although from the legal point of view WotC's legal manoeuvring was predictable (the relevant legal ideas and issues having been sketched, mostly by me as far as I'm aware, in posts on this forum 10 and 15 years ago).

What I'm seeing now is a running away from the OGL, when legally I think it remains very stable even in the face of an attempted withdrawal of offer by WotC, and at the same time a new fetishisation of the CC which is no better grounded in legal reasoning than the prior attitude towards the OGL.

This is not any sort of criticism of the CC licence, but rather a suggestion that having made a particular mistake once, it would be better for the culture to be more thoughtful the second time around.

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 agree on the second sentence. And on the first sentence, no it does not. It's a case in which the automatic offer provision is "disapplied", even though the upstream licensor wanted it to be applied - but the context was very different from the situation that is relevant in the WotC SRD context, and I think it really tells us nothing about what would happen in that context.

I'm not a commercial publisher and so don't have to make any decisions in this space. From a purely legal intellectual point of view I find the operation of the OGL more straightforward to understand.

 

[pemerton]

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?

The Hight Court of Australia is the supreme constitutional and common law court of Australia. (So structurally it is similar to the Canadian Supreme Court and different from the US Supreme Court.)

Legal culture and judicial politics in Australia are very different from what they are in the US.

A recent controversial case in Australia was Love; Thoms. The case concerned the constitutional power to make laws with respect to aliens - that is the constitutional power on which Australian migration and deportation law rests. The case held (roughly) that no Indigenous Australian person (ie who is a member of a First Nations community) can be considered an alien for constitutional purposes, and hence cannot be governed by deportation laws that depend for their validity upon the fact that those whom they target are aliens.

The government at the time of this decision was a conservative (Liberal and National Party) government. At the time that government lost office, in last year's election, there was actually a case on foot which was challenging the correctness of the decision - the composition of the bench had changed, and the government was hoping that a new majority might find that the decision was wrong, and hence overturn in.

The new (and current) government, which is a Labor Party (ie centre-left) government withdrew that case, and so the decision in Love stands.

Here is a list of how the judges decided in the case, and in brackets which party appointed them: when looking at the list, keep in mind the following four things: (i) in Australia, judges are appointed by the government of the day and there is no analogy to the US Senate hearings for federal judicial appointments; (ii) the Liberal Party of Australia is the predominant conservative party in the country; (iii) the majority decision was the one which held that the aliens power does not reach to Indigenous people, whereas the minority held that whether or not Indigenous people can count as aliens is a matter for the Parliament to decide by way of legislation; (iv) it was a Liberal Party government that was challenging the correctness of the majority decision, and it was a Labour Party government that withdrew that challenge once it took office:

Kiefel CJ (minority; Liberal)
Bell J (majority; Labour)
Gageler J (minority; Labour)
Keane J (minority; Labour)
Nettle J (majority; Liberal)
Gordon J (majority; Liberal)
Edelman J (majority; Liberal)

That should give you a sufficient indication of the way in which Australia's legal culture and judicial politics are quite different from the US.

 

[niklinna]

(ii) the Liberal Party of Australia is the predominant conservative party in the country;

Please explain to us how this came to be.

 

[Saracenus]

That seems sensible. The course of litigation is almost never certain. And thanks for the rest of the post which provides more context about where you are coming from in your remarks. You are experienced in weighing up legal opinions and making a decision about what sorts of risks to take.

To this point, the last thing we want in the housing provider world is litigation. You have weigh the propensity of a particular court in terms of how it favors one side or another in previous cases (sometimes it even down to what judge you get for your case). While justice in civil litigation is supposed to be blind, I find that is the ideal and that the real tends to fall short. So, you are always taking a chance that the precedence you set on something untested will not go your way no matter how strong your argument. Judges are human beings and thus fallible.

Now you have to make a gut check and see if you are willing to pursue an appeal. It's one thing to say "I will go to the wall on this issue in court," but it is really different when you are facing the potential loss of time, money, and livelihood. If you have ever bought a house with a 30-year mortgage, there is that moment when you are about to sign the mortgage document and you are looking ahead at the colossal amount of money you are about to spend and the responsibility you are going to shoulder and there usually is a moment of sheer panic that hits you. That weight is amped up when you go to court because that house you bought, your family's security, your business' life, and/or your employees future may be the stakes in that moment. Heavy sits the head the wears the crown.

I think that is what gets lost to a lot of folks here. If you got no skin in the game, it is easy to say with "certainty" that if it were your choice you wouldn't hesitate to put the pedal to the metal. It is quite different when it is existential.

 

[pemerton]

To this point, the last thing we want in the housing provider world is litigation.

That also seems sensible.

I think that is what gets lost to a lot of folks here. If you got no skin in the game, it is easy to say with "certainty" that if it were your choice you wouldn't hesitate to put the pedal to the metal. It is quite different when it is existential.

And so does this.

 

[pemerton]

Please explain to us how this came to be.

TL;DR Because Australia was a British colony and not an American one.

In the late nineteenth and early twentieth century in the UK, there were two main political groupings - the liberals and the conservatives. One moment that captures the contrast between them: the "People's Budget" crisis of 1910, in which the Liberal government got its social welfare budget through the House of Lords, and subsequently secured passage of the Parliament Act 1911 (which allows the House of Commons to legislate in defiance of the Lords if certain procedures are followed), in the context of a threat to have the King appoint sufficiently many Liberal peers to give the Liberals a majority in the Lords.

With the emergence of the Labour Party in the twentieth century, British politics became (roughly) three-cornered: Conservative, Labour, Liberal - although the modern Lib Dems suffered a bit following the ill-fated coalition with the Cameron Conservatives. (And I'll leave that at that, out of deference to board rules.)

At the time of federation in Australia (ie the end of the nineteenth century) there were four main political groupings: conservatives, protectionists (predominantly Victorian non-socialist progressives, comparable in many respects to US populists and Bull Moosers although perhaps a bit more genteel), free traders (predominantly New South Wales-driven progressive liberals, comparable in many respects to their British counterparts though perhaps a bit less genteel) and Labor (which adopted the US rather than British spelling).

As the power of Labor grew in the first decade or so of the twentieth century, and as a compromise on the national tariff was reached between the protectionists and free traders, politics coalesced into Labor vs anti-Labor. The latter have gone under various names - Fusion (ie of protectionist and free trade parties), then Liberal, then Nationalist (when Billy Hughes led a group of Labor members to the non-Labor side over the issue of conscription - despite this, conscription was not introduced and the Austalian army was the only all-volunteer force to fight in WWI), then later United Australia (also the result of a Labor leader moving to the non-Labor side, this time the crisis being due to the Depression rather than the War). After the UAP lost office, Robert Menzies rebuilt it as the Liberal Party, and then won the 1949 election and went on to be the longest serving PM in Australian history.

The contemporary Liberal Party is more conservative than Menzies's party in many (not all) respects, particularly after many of its most liberal members lost their seats in the most recent election: Teal independents - Wikipedia. My take on the teals is that they are a re-emergence of federation-era middle class anti-socialist progressives: again out of respect for board rules I won't set out any more details of my speculation about what anti-Labor is now fracturing.

 

[Ashtagon]

Obviously, IANAL, so I am probably completely wrong on this.

The latest 5.1 SRD (the one that mentions certain NPCs and monsters previously withheld from the SRDs) has been released under CC, but not, afaik, under OGL.

It's well-established that a 3pp or indy can take an SRD, make absolutely no changes, and sell it.

Could a 3pp take the latest 5.1 SRD without changes, publish it simultaneously under CC and OGL (1.0a, since that's what's available, at least for now), make the appropriate declarations about CC source material used, and under the OGL licence, declare the entire thing to be available under an open licence? Is this a technical workaround to get this SRD within the OGL ecosystem even if WotC doesn't specifically choose to do so?

In other words, what rights, if any, does WotC actually retain over the content of the latest 5.1 SRD?

 

[Matt Thomason]

Could a 3pp take the latest 5.1 SRD without changes, publish it simultaneously under CC and OGL (1.0a, since that's what's available, at least for now), make the appropriate declarations about CC source material used, and under the OGL licence, declare the entire thing to be available under an open licence? Is this a technical workaround to get this SRD within the OGL ecosystem even if WotC doesn't specifically choose to do so?

Personally, I would say no. You could certainly use both licenses, but you can't turn the CC 5.1 SRD into OGL-licensed text that way.

The material you have permission to use is still copyrighted by WotC, you're just using it under license. You don't have the right to declare someone else's copyrighted material Open Game Content. Specifically, the CC-BY-4.0 license requires attribution, so you must pass that CC attribution requirement on to anyone reusing the CC part of the work you produced.

If you used both licenses, then what you can do is declare which bits of the document are Open Game Content (anything you contributed yourself, and anything which you obtained as OGC via the OGL), and which bits are CC-licensed and the relevant attribution required for it.

 

[pemerton]

The latest 5.1 SRD (the one that mentions certain NPCs and monsters previously withheld from the SRDs) has been released under CC, but not, afaik, under OGL.

Here's a link to the SRD released under the OGL v 1.0a: https://media.wizards.com/2016/downloads/DND/SRD-OGL_V5.1.pdf

I haven't done a word-for-word comparison, but it has all the same stuff about yuan-ti and the like as best I can tell via a few word searches.

If you read the notice of OGC, you'll see that it expressly excludes the Product Identity. And if you read the notice of Product Identity, you'll see that it includes yuan-ti et al.

In other words, not everything in the SRD is licensed under the OGL. Some of it is not OGC.

It's well-established that a 3pp or indy can take an SRD, make absolutely no changes, and sell it.

This statement is false. If you did that for the 5.1 SRD, you would be reproducing some Product Identity that is not OGC, in breach of the licence terms.

For that reason I think the Hypertext SRD for 5e is in breach of the licence: Reading The Monster Entries :: 5e.d20srd.org. But that's WotC's problem, not mine.

 

[Ashtagon]

I checked for yuan-ti, beholder, and Strahd. All three are name-dropped in both the OGL SRD and the CC SRD documents, although none of them are stated out.

Item 7 of the OGL denies permission to use product identity except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. It seems to me that the CC constitutes such an independent Agreement.