OGL Boilerplate Language: Worrying about the OGL (Part 4)

Snarf Zagyg

Notorious Liquefactionist
Well, I made a promise to @LordEntrails ... so, you're welcome, I guess?

I've previously posted some explainers on some fancy lawyerin' topics, and the two that are relevant to this brief(er) post are as follows:
Why do lawyers write like that?
Why does litigation cost so much?

One of the topics I keep seeing repeated, over and over, is the issue of standard contractual language. It can be frustrating looking at some of those conversations because people are looking at what are, for an attorney, a standard contractual provision, and assuming that it is somehow nefarious or ill-intended. This should hopefully illuminate some of the issues with this type of language- first, by looking at the issues generally, and then by examining one specific provision (the class action waiver) from the OGL. Unlike prior law-splainers, I'll try to keep the jokes to a minimum and keep this relatively short. Uh .... short for me.

A. Boilerplate and Belt & Suspenders.
Two phrases you might hear often when looking at the terrible morass of verbiage that is the usual contract are "Boilerplate," and "Belt & Suspenders." These are similar concepts, but not the same.

Boilerplate is the standardized language that you will see in contract after contract; it's the stock provisions that you will see in most (or all) contracts of a certain type. Even if they might not apply, you will see a lot of boilerplate.

Belt & suspenders refers, generally, to using multiple approaches to minimize risk (you're not just wearing a belt, but wearing suspenders as well!). For contracts, this refers to putting in multiple provisions that might overlap or even be completely redundant in order to minimize risk.

To give you an idea of how this would operate in practice, you will often see contracts that have "boilerplate" provisions. Most contracts of most types have a choice of law provision, a severance clause, a merger clause, and so on. Different law firms and companies might vary the language a little, but you will almost always see this in most types of contacts (is the contractual provision labeled controlling law, choice of law, or governing law etc.).

It's the same when a contract attempts to make sure there is protection- the belt & suspenders approach. A contract might have one large section that disclaims warranties, another section that limits liability, and then additional sections that specify the limitations of the representations of the contact and the ability to bring suit- and this would be in addition to sections that might prescribe how lawsuits might be brought.

B. The Class Action Waiver
In the OGL 1.2 Draft, paragraph 9(e), we see the following text:
Governing Law/Jurisdiction/Class Action Waiver. This license and all matters relating to its interpretation and enforcement will be governed by the laws of the State of Washington, and any disputes arising out of or relating to this license will be resolved solely and exclusively through individual litigation in the state or federal courts located in the county in which Wizards (or any successor) has its headquarters, and the parties expressly consent to the jurisdiction of such courts. Each party hereto irrevocably waives the right to participate in any class, collective, or other joint action with respect to such a dispute.

In this paragraph, we both boilerplate terms that most attorneys have probably seen thousands of times (if you look at most of the contracts you've entered into, you might have seen something similar) as well as an example of belt & suspenders. I am going to concentrate on the underlined portions- the parts that speak to the class action waiver.

First, this is standard boilerplate language. This was probably copied from other contracts.
Next, this is using belt & suspenders; notice that any dispute must be resolved solely and exclusively through individual litigation (belt). In addition, there is a specified waiver of class, collective, or joint action (suspenders).
Finally, the specific wording of the last sentence is an example of accretion (as I previously wrote about in the explainer about why attorneys write like that). There was a time when the issue was class actions, so the waiver was written just for class actions. Later, someone brought a lawsuit under a statute called the FLSA, which predates the class action and is technically a collective action, and a court found that the class action waiver didn't apply for collective actions ... so waivers added the collective action language. Finally, while class and collective (and representative, but... that's neither here nor there) were the main focus of these waivers, eventually people just aggregated lots of claims or lawsuits through joinder, which is there was eventually the joint action addition.

The thing is- this is just boilerplate, copied from contract to contract. For example, I don't think it would be possible to bring a collective action (which is for, inter alia, wage claims) involving the OGL- but that language is always included.


C. Fine. But does this matter?
Very briefly ... no, not really. The United States used to have all sorts of rules against champerty, maintenance, and barratry.* But we don't anymore.* Which means that, for example, it is relatively easy to help fund litigation that you're not a part of. In addition, for various reasons, it's actually really hard to bring a class action, and getting harder every year for most things- class actions are kind of like RICO on the internet; if you think something is a class action, you're probably wrong. These provisions, which are often used by employers against employees, have limited value when discussing contractual arrangements such as this one.

Noe of this is a value judgment about the use of certain boilerplate terms in contracts, but more an explanation as to why some people who have seen many contracts are less excited by these provisions.


*Fancy words about the old prohibition against helping to pay for someone's lawsuit, or helping fund a lawsuit because you have an interest in the outcome.
**Generally. Again, 50 states.
 

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SoonRaccoon

Explorer
If class actions don't apply to a license like this, then why is that clause necessary?

The OGL 1.0a doesn't include a clause about class actions, and everything has been fine for two decades. Why now?

What makes this "boilerplate"? Is it just because it's a common clause included in many contracts? If binding arbitration clauses become ubiquitous, would they then also be considered boilerplate?
 

dave2008

Legend
If class actions don't apply to a license like this, then why is that clause necessary?
Snarf explains this in the OP
The OGL 1.0a doesn't include a clause about class actions, and everything has been fine for two decades. Why now?
Because the OGL 1.2 has, I've been told, better and more legally appropriate language. Put another way, the OGL 1.0(a) wasn't written very well.*
What makes this "boilerplate"? Is it just because it's a common clause included in many contracts? If binding arbitration clauses become ubiquitous, would they then also be considered boilerplate?
Snarf also explain this in the OP.

*Note: this is what I have been told by lawyers, I am not a lawyer and cannot verify that claim. However, when I read the OGL 1.2 it seems, for the most part, more concise and clear than the OGL 1.0(a). I actually applaud WotC for trying to improve the legal language of the document, there are just a few clauses that need to be corrected or removed to make it a truly superior document IMO.
 
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dave2008

Legend
Well, I made a promise to @LordEntrails ... so, you're welcome, I guess?

I've previously posted some explainers on some fancy lawyerin' topics, and the two that are relevant to this brief(er) post are as follows:
Why do lawyers write like that?
Why does litigation cost so much?

One of the topics I keep seeing repeated, over and over, is the issue of standard contractual language. It can be frustrating looking at some of those conversations because people are looking at what are, for an attorney, a standard contractual provision, and assuming that it is somehow nefarious or ill-intended. This should hopefully illuminate some of the issues with this type of language- first, by looking at the issues generally, and then by examining one specific provision (the class action waiver) from the OGL. Unlike prior law-splainers, I'll try to keep the jokes to a minimum and keep this relatively short. Uh .... short for me.

A. Boilerplate and Belt & Suspenders.
Two phrases you might hear often when looking at the terrible morass of verbiage that is the usual contract are "Boilerplate," and "Belt & Suspenders." These are similar concepts, but not the same.

Boilerplate is the standardized language that you will see in contract after contract; it's the stock provisions that you will see in most (or all) contracts of a certain type. Even if they might not apply, you will see a lot of boilerplate.

Belt & suspenders refers, generally, to using multiple approaches to minimize risk (you're not just wearing a belt, but wearing suspenders as well!). For contracts, this refers to putting in multiple provisions that might overlap or even be completely redundant in order to minimize risk.

To give you an idea of how this would operate in practice, you will often see contracts that have "boilerplate" provisions. Most contracts of most types have a choice of law provision, a severance clause, a merger clause, and so on. Different law firms and companies might vary the language a little, but you will almost always see this in most types of contacts (is the contractual provision labeled controlling law, choice of law, or governing law etc.).

It's the same when a contract attempts to make sure there is protection- the belt & suspenders approach. A contract might have one large section that disclaims warranties, another section that limits liability, and then additional sections that specify the limitations of the representations of the contact and the ability to bring suit- and this would be in addition to sections that might prescribe how lawsuits might be brought.

B. The Class Action Waiver
In the OGL 1.2 Draft, paragraph 9(e), we see the following text:
Governing Law/Jurisdiction/Class Action Waiver. This license and all matters relating to its interpretation and enforcement will be governed by the laws of the State of Washington, and any disputes arising out of or relating to this license will be resolved solely and exclusively through individual litigation in the state or federal courts located in the county in which Wizards (or any successor) has its headquarters, and the parties expressly consent to the jurisdiction of such courts. Each party hereto irrevocably waives the right to participate in any class, collective, or other joint action with respect to such a dispute.

In this paragraph, we both boilerplate terms that most attorneys have probably seen thousands of times (if you look at most of the contracts you've entered into, you might have seen something similar) as well as an example of belt & suspenders. I am going to concentrate on the underlined portions- the parts that speak to the class action waiver.

First, this is standard boilerplate language. This was probably copied from other contracts.
Next, this is using belt & suspenders; notice that any dispute must be resolved solely and exclusively through individual litigation (belt). In addition, there is a specified waiver of class, collective, or joint action (suspenders).
Finally, the specific wording of the last sentence is an example of accretion (as I previously wrote about in the explainer about why attorneys write like that). There was a time when the issue was class actions, so the waiver was written just for class actions. Later, someone brought a lawsuit under a statute called the FLSA, which predates the class action and is technically a collective action, and a court found that the class action waiver didn't apply for collective actions ... so waivers added the collective action language. Finally, while class and collective (and representative, but... that's neither here nor there) were the main focus of these waivers, eventually people just aggregated lots of claims or lawsuits through joinder, which is there was eventually the joint action addition.

The thing is- this is just boilerplate, copied from contract to contract. For example, I don't think it would be possible to bring a collective action (which is for, inter alia, wage claims) involving the OGL- but that language is always included.


C. Fine. But does this matter?
Very briefly ... no, not really. The United States used to have all sorts of rules against champerty, maintenance, and barratry.* But we don't anymore.* Which means that, for example, it is relatively easy to help fund litigation that you're not a part of. In addition, for various reasons, it's actually really hard to bring a class action, and getting harder every year for most things- class actions are kind of like RICO on the internet; if you think something is a class action, you're probably wrong. These provisions, which are often used by employers against employees, have limited value when discussing contractual arrangements such as this one.

Noe of this is a value judgment about the use of certain boilerplate terms in contracts, but more an explanation as to why some people who have seen many contracts are less excited by these provisions.


*Fancy words about the old prohibition against helping to pay for someone's lawsuit, or helping fund a lawsuit because you have an interest in the outcome.
**Generally. Again, 50 states.
That was rather short for you Snark - thank you!
 

SoonRaccoon

Explorer
Snarf explains this in the OP
Not really. The gist seems to be, don't worry about it, it's boilerplate. It's boilerplate, because it's common and in every contract.

Just because it's common and everywhere doesn't mean it's not something we shouldn't push back against. I rankle at any contract that requires me to waive my rights. The current trend is for businesses to require users to agree to binding arbitration clauses, which means we lose the ability to bring law suits. I see this clause as a much less onerous waiver of rights, but a waiver of rights nonetheless. I don't see why I should be OK with it just because it is common practice. I don't think it should be in any contracts, let alone it be so common as to be considered "boilerplate".

Language like "This is provided as is, without warranty, etc." seems like something that I would call boilerplate that clarifies what's being provided.
 

dave2008

Legend
Not really. The gist seems to be, don't worry about it, it's boilerplate. It's boilerplate, because it's common and in every contract.

Just because it's common and everywhere doesn't mean it's not something we shouldn't push back against. I rankle at any contract that requires me to waive my rights. The current trend is for businesses to require users to agree to binding arbitration clauses, which means we lose the ability to bring law suits. I see this clause as a much less onerous waiver of rights, but a waiver of rights nonetheless. I don't see why I should be OK with it just because it is common practice. I don't think it should be in any contracts, let alone it be so common as to be considered "boilerplate".

Language like "This is provided as is, without warranty, etc." seems like something that I would call boilerplate that clarifies what's being provided.
The whole clause is a belt and suspender clause because the ability to even bring up a class action suit is, according Snarf, very, very remote if not impossible. So it that bothers you, fine, but is hardly a big issue to me. I would much rather they correct sections 5, 6, & 9 (IIRC). I am not worried about waiving my rights to a class action lawsuit for using D&D RPG rules. etc.
 

MarkB

Legend
The Severance clause in 1.2 may be some standard wording, but it's a lot more potentially problematic than the Reformation clause it replaces from the previous OGL. Essentially, it provides the option for WotC to completely nullify the OGL for all parties if anyone makes even the slightest attempt to dispute the legality of even the smallest part of the licence.

By comparison, the Reformation clause allows for the license to be modified only to the minimum extent necessary to restore it to validity in the event of any part of it being deemed invalid.
 

dave2008

Legend
The Severance clause in 1.2 may be some standard wording, but it's a lot more potentially problematic than the Reformation clause it replaces from the previous OGL. Essentially, it provides the option for WotC to completely nullify the OGL for all parties if anyone makes even the slightest attempt to dispute the legality of even the smallest part of the licence.

By comparison, the Reformation clause allows for the license to be modified only to the minimum extent necessary to restore it to validity in the event of any part of it being deemed invalid.
I do agree, and wish I had commented on that in the survey. The existing clause doesn't really worry me as is and wouldn't prevent me from using the OGL 1.2 (other things might), but I prefer the 1.0(a) version. 1.2 version seems like boiler plate that could use a custom edit.
 
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Dausuul

Legend
Essentially, it provides the option for WotC to completely nullify the OGL for all parties if anyone makes even the slightest attempt to dispute the legality of even the smallest part of the licence.
What?

The severability clause allows WotC to nullify the OGL if part of it is "held" to be unenforceable or invalid. Unless I am much mistaken, that requires going to court and having the court make a ruling that X is unenforceable/invalid. Otherwise it has not been "held", merely asserted by some schmo.
 

Amrûnril

Adventurer
This sort of clause may be common, but being common doesn't preclude being unjust or objectionable.

The underlying goal of such language is for corporations to limit possible constraints on their future business decisions. Which seems an understandable goal, until you realize that the constraint being eliminated is the need to respect the rights of the other parties affected by these business decisions and to treat them as equals in negotiation or litigation (this is the same instinct that leads corporations to oppose unionization and regulation).

Existing imbalances in bargaining power makes it difficult to avoid contracts with such terms entirely, but that doesn't mean we shouldn't push back against them when we have the opportunity to do so.
 


MarkB

Legend
What?

The severability clause allows WotC to nullify the OGL if part of it is "held" to be unenforceable or invalid. Unless I am much mistaken, that requires going to court and having the court make a ruling that X is unenforceable/invalid. Otherwise it has not been "held", merely asserted by some schmo.
Here's one way I could imagine it playing out - IANAL, so anyone with better information feel free to correct me.

Step 1: Some schmo brings a case claiming that WotC is acting unlawfully due to some small part of the OGL being either invalid or unenforceable.
Step 2: WotC concedes the case.
Step 3: Since both parties agree that it is invalid/unenforceable, it is now officially held to be so. WotC announce that the version of the license they issued has a problem and that they've nullified it to protect themselves against any possible further litigation. They promise that their lawyers are working on trying to fix it, and expect to have a new draft ready within a few weeks. Six months at the most. Got to cross those Ts and dot those Is properly this time. Meanwhile, all 3PPs please put your publications on hold as they are now in breach of WotC copyright.
 

Dausuul

Legend
Here's one way I could imagine it playing out - IANAL, so anyone with better information feel free to correct me.

Step 1: Some schmo brings a case claiming that WotC is acting unlawfully due to some small part of the OGL being either invalid or unenforceable.
Step 2: WotC concedes the case.
Step 3: Since both parties agree that it is invalid/unenforceable, it is now officially held to be so.
I'm almost positive that isn't how it works. A settlement is not a judicial holding. But I'll defer to the actual lawyers on that.
 


I'm almost positive that isn't how it works. A settlement is not a judicial holding. But I'll defer to the actual lawyers on that.
You're missing the point. Ok, so if it has to go court. Say section 6f is found to be illegal for whatever reason. Now because of severability WotC has the power to now throw out the entire OGL 1.2. Anything in development now can't be released, and anything released under 1.2 is now in questionable legal standing. Sure, your "Book of Cool Stuff" was released under 1.2 a year ago, but 1.2 is no longer legal so you can't sell it anymore. Or can you? Guess you will have to risk going to court.
 

Clint_L

Hero
I took the OP to be explaining some of the legalese that people are thinking is evidence of a malevolent plot is simply language that gets used in most contracts and probably just got included as standard contract stuff. I didn't think they were asserting that therefore it couldn't be challenged or debated.
 

Snarf Zagyg

Notorious Liquefactionist
I took the OP to be explaining some of the legalese that people are thinking is evidence of a malevolent plot is simply language that gets used in most contracts and probably just got included as standard contract stuff. I didn't think they were asserting that therefore it couldn't be challenged or debated.

That's pretty much it. I thought this was pretty explicit- and it's also why I referred back to the prior post on legal-ese (why attorneys write the way that they do), but it's why it can be difficult to read some of the more conspiracy-minded conversations.

Part of this is you have to start with a basic understanding that the OGL 1.2 is not an "open" license, and, moreover, that OGL 1.0(a) is not ... well-written. These are two concepts that I think that a lot of people struggle with, and are confusing them as to why the two licenses are different.

Going in reverse order- OGL 1.0(a) is not (from a legal standpoint) well-written. Now, I know what many people will say- "Of course it is well-written!!111!!111! People have relied it on it for decades!!!111 NO SUITZ BRAH! Why do you hate the community????"

I mean ... yes. In a certain manner, it is well-written given that it has served its purpose well and that there has been no litigation. But ... the test of a contract is never what happens when things go well. It's what happens when, um, two sides stop being polite and start getting real. To use an example that people might understand a little better- ignoring statutory provisions, if your second cousin, who you get along with great, moves into your spare bedroom and agrees to pay you $500 a month, that probably will work. On the other hand, most landlords and tenants probably have had experiences that make them realize that contracts (in this case, leases) are necessary when things aren't working as well.

On the OGL 1.0(a), if you look at it, you can see that it has typos, was poorly adapted from a software open license for a use that it was not intended for (to allow the dissemination of some, but not all, protected content), and is replete with terms that are ambiguous and provisions that are unclear when read in conjunction with each other. And yet it was also wildly successful because it generally set out the rights and obligations in a manner that people understood (or thought they understood). But that poor writing? I would assume that when (or if?) ORC is released, it will be different. At least, I really hope so. Anyway, the reason no one really paid that much attention to some of the more questionable parts of the OGL 1.0(a) before is because people assumed they knew how it work- it never was tested ... much in the same way that you might generally understand how your lease works (first, last, security deposit, rent is due on this day) but never really paid too much attention to the details.

The new OGL is not that- it is certainly not an open license in the same way. It is a license that has restrictions and conditions- it is is only open in the sense that it is being offered to everyone. And because of that, it will have different provisions. And some of those will be the same boilerplate provisions that licenses tend to have.

One of those is the class action waiver; it's kind of funny, in a way, because as I wrote above, this waiver contains language that could not possibly apply but is simply boilerplate for these waivers - while I welcome being corrected, I cannot imagine how this would apply to a collective action. Moreover, it is extremely unlikely to apply to any class action. But any attorney would recommend putting it in there- after all, this isn't an open license, and putting this out to the world while not having a limitation on class actions would be crazy, even if the chance of it having is almost 0.

None of this is really about the utility or morality of this, or other boilerplate terms. But (as you correctly surmised) it is about understanding why these terms are there.
 

Dausuul

Legend
You're missing the point. Ok, so if it has to go court. Say section 6f is found to be illegal for whatever reason. Now because of severability WotC has the power to now throw out the entire OGL 1.2. Anything in development now can't be released, and anything released under 1.2 is now in questionable legal standing. Sure, your "Book of Cool Stuff" was released under 1.2 a year ago, but 1.2 is no longer legal so you can't sell it anymore. Or can you? Guess you will have to risk going to court.
But unless I am mistaken, Wizards cannot manufacture this outcome -- it requires a judge to look at the contract and say, "This part right here is bogus." No combination of "the plaintiff does this and the defendant does that" can conjure up that holding without the judge's active agreement.

As for the consequences if this happens... that's another question for the lawyers, I guess. Say a judge does rule that some part of the contract is invalid or unenforceable. If Wizards wishes to exercise the "burn it all to the ground" option, can they just keep that hanging fire indefinitely? Or is there some time frame in which they must use it or lose it?
 

Ashtagon

Adventurer
If/when it chooses, what would prevent WotC from "sponsoring" a 3PP (or newbie developer; obviously, with the connection to WotC being sufficiently masked) to act as a helpful tool in developing a deliberately violating product for the specific purpose of enabling WotC to create a lawsuit that will enable it to declare the revocation clauses to be in effect?
 

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