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Boilerplate Language: Worrying about the OGL (Part 4)

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.
 

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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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