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

Snarf Zagyg

Notorious Liquefactionist
I'd rather worry about the non-boilerplate stuff, like the morality clause that gives Wizards the power to terminate any license whenever they want, simply by calling it "hateful," and you can't take them to court or even to binding arbitration to dispute their decision. (I hope that isn't boilerplate.)

No, that isn't a boilerplate provision. Morality clauses are much more common in employment and personal services contracts than licenses, which usually just have a termination provision. If you don't like what the licensee is doing, you terminate the license.

But that's the rub, isn't it? This can't just have a termination provision, since it is (theoretically) not supposed to be terminable. So you just keep going round and round, I guess.
 

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Maxperson

Morkus from Orkus
With regard to this specific contract, the class-action clause seems to me like a nothingburger. The severability clause looks like... maybe a slider. Giving discretion to Wizards on how to remedy defects in the contract, when the other party gets no such discretion, is not great. But the speculation that Wizards could use that clause to just do a rug pull at any moment is bonkers.
Speculation that they will use it to pull at any moment is bonkers, but speculation that they will use it if a clause is found invalid is not bonkers. It's very likely that they will use it since they presumably want the clauses they wrote to remain in the contract.

Edit: I didn't read closely enough due to home distractions. Didn't see it was the morality clause you were talking about.
 

SoonRaccoon

Explorer
So instead of saying standard contractual language is corrosive, you actually need to be able to come to the table and explain why that is the case.
The problem is that clauses that limit consumer rights have become standard. The fact that it has become standard is the problem.

It's fine if you don't agree, but can you see where I'm coming from?
 

Snarf Zagyg

Notorious Liquefactionist
The problem is that clauses that limit consumer rights have become standard. The fact that it has become standard is the problem.

It's fine if you don't agree, but can you see where I'm coming from?

Again, this is not a consumer license. This is a license that allows you to use the intellectual property of a company within a safe harbor.

So from my perspective ... no, I don't see at all. You keep acting like this is some sort of, "Oh no. They sold combine harvesters designed to kill children and puppies, but no one can possibly sue them because of their clever contracts!!!!" But it's not.

This is about offering something to the world, and trying to make sure it doesn't come back to bite you in the posterior ("as-is").

That's why it's important to understand what we're discussing.
 

S'mon

Legend
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.

That something is 'standard boilerplate' in a standard form contract does not mean it is not 'nefarious or ill-intended'!
 


Jer

Legend
Supporter
These are rather alien to open licenses though.
One of the problems with all of this is Wizards misunderstanding what an open license is or pretending that the OGL 1.1 or 1.2 are actually open licenses and not just licenses.

It's hard to be on the same page with them when they're attempting to rescind an open, share-alike license and think a closed, two-party license is the equivalent. It's like we're speaking two different languages.
 

Snarf Zagyg

Notorious Liquefactionist
That something is 'standard boilerplate' in a standard form contract does not mean it is not 'nefarious or ill-intended'!

I disagree. Bespoke terms are what speak of specific ill intent.

You can (and people do) question boilerplate. But the inclusion of boilerplate is not evidence of specific ill intent, and to be honest, it quite tiring to see people repeatedly point to provisions that are in tens of millions of contracts as evidence of Hasbro's ill intent.

But, you know, you do you.
 

Snarf Zagyg

Notorious Liquefactionist
One of the problems with all of this is Wizards misunderstanding what an open license is or pretending that the OGL 1.1 or 1.2 are actually open licenses and not just licenses.

It's hard to be on the same page with them when they're attempting to rescind an open, share-alike license and think a closed, two-party license is the equivalent. It's like we're speaking two different languages.

Yep. It's almost like I wrote, repeatedly, that this is not an open license.

That said, I don't think that Wizards is misunderstanding what an open license is. I also don't think that are pretending. I think it goes to Section 9 of OGL 1.0(a)- they are calling this OGL 1.2 not because it's an open license, but because it's an updated version of the prior license.

That's the whole ballgame. That's why they are keeping the name. This is the new and authorized license. Otherwise, they would just call this GSL 2.0 or something.
 

SoonRaccoon

Explorer
it quite tiring to see people repeatedly point to provisions that are in tens of millions of contracts as evidence of Hasbro's ill intent.
How about the idea that these clauses (edit: these clauses being ones that limit access to the courts, for example) being in tens of millions of contracts as being a problem in and of itself?

It being in this contract (OGL 1.2) is just a single instance of that problem.
 




Jer

Legend
Supporter
That said, I don't think that Wizards is misunderstanding what an open license is. I also don't think that are pretending. I think it goes to Section 9 of OGL 1.0(a)- they are calling this OGL 1.2 not because it's an open license, but because it's an updated version of the prior license.

That's the whole ballgame. That's why they are keeping the name. This is the new and authorized license. Otherwise, they would just call this GSL 2.0 or something.
I almost included that in my post - that I think it's all about keeping the name so that Section 9 can be met with the new license. But then I thought "do I really know enough about this to state that that would actually work?" and decided I'd just go with "pretending it's an open license" to cover that to some degree.

It all makes sense, and having a lawyer confirm that it's a possible strategy is both bad and good. Good because I feel like I see why they're doing it, bad because as someone who has been a proponent of open licensing for all sorts of things over the years it makes me angry to see the verbiage misused for something so cynical.
 

Snarf Zagyg

Notorious Liquefactionist
I almost included that in my post - that I think it's all about keeping the name so that Section 9 can be met with the new license. But then I thought "do I really know enough about this to state that that would actually work?" and decided I'd just go with "pretending it's an open license" to cover that to some degree.

It all makes sense, and having a lawyer confirm that it's a possible strategy is both bad and good. Good because I feel like I see why they're doing it, bad because as someone who has been a proponent of open licensing for all sorts of things over the years it makes me angry to see the verbiage misused for something so cynical.

Well, I obviously can't definitively tell you that it's their strategy, but it's the only thing that makes sense.

Because it's not an open license. So the only reason I can see to keep re-using the name is to try and keep it within the framework (an updated version) of the prior license.
 

Dausuul

Legend
How about the idea that these clauses (edit: these clauses being ones that limit access to the courts, for example) being in tens of millions of contracts as being a problem in and of itself?
That is a problem. But it is not one that will be solved or meaningfully addressed by anyone on this forum, and most of us aren't here for general political debate.

It being in this contract (OGL 1.2) is just a single instance of that problem.
That clause has no meaningful impact on this contract. So while it may illustrate the extent of the problem, it is not an instance of it, and it's not in any way relevant to the topic under discussion, which is the thing Wizards calls OGL 1.2 (a name I prefer not to endorse).
 

Jer

Legend
Supporter
Well, I obviously can't definitively tell you that it's their strategy, but it's the only thing that makes sense.
Sure, I didn't mean that. I meant more that you think it's actually a strategy that they could be using rather than a "no, silly person, that's not how the law works" which is what often happens when lawyers engage with randos ideas on the internet. :)

Because it's not an open license. So the only reason I can see to keep re-using the name is to try and keep it within the framework (an updated version) of the prior license.
I mean, there's always the chance that they just don't know what they're doing. Incompetence and ignorance are always potential reasons for just about anything :)

But I suspect the lawyers that Hasbro hires to draft licenses for them would know what they're doing, so I also assume they have a purpose for it rather than it being sloppiness or accidental.
 

Maxperson

Morkus from Orkus
Actually, no, not yet. I added an edit that you may have missed, and I'd like to know your specific response.
The class limitation is a nothing burger. Class actions usually give the class very, very little and the attorneys a whole heck of a lot. I mean, yay, I won a free month at some gym because of something or other, but I'm going to guess that the attorneys got a lot more than that. Another time I could have gotten a buck and change if I had gone through the trouble to pay for an envelope and a stamp and mailed my claim back in time! Woohoo!!

The "You can't use substantial similarity or access to prove we took stuff from you, but we can use it on all you guys" is actually bad in my opinion. As are the morality clause and the severance clause.
 

Yep. It's almost like I wrote, repeatedly, that this is not an open license.

That said, I don't think that Wizards is misunderstanding what an open license is. I also don't think that are pretending. I think it goes to Section 9 of OGL 1.0(a)- they are calling this OGL 1.2 not because it's an open license, but because it's an updated version of the prior license.

That's the whole ballgame. That's why they are keeping the name. This is the new and authorized license. Otherwise, they would just call this GSL 2.0 or something.
So, are you making a case that it's a mistake to focus on the individual provisions that are inappropriate to an open license instead of the primary issue that this isn't an open license?

I think mainly everyone is struggling with what's actionable about this. If what we want, an open environment as like what's existed under the 1.0(a) world as possible, does it even make sense to take umbrage at individual terms that violate our expectations, or is the basic structure of the license the problem?
 

Snarf Zagyg

Notorious Liquefactionist
So, are you making a case that it's a mistake to focus on the individual provisions that are inappropriate to an open license instead of the primary issue that this isn't an open license?

I think mainly everyone is struggling with what's actionable about this. If what we want, an open environment as like what's existed under the 1.0(a) world as possible, does it even make sense to take umbrage at individual terms that violate our expectations, or is the basic structure of the license the problem?

So I am not the King of Everyone (.... yet ....), but I view this pretty simply.

Either you want Hasbro to provide an Open license, or that's not as big of a concern as just having something everyone agrees on.

Because if you want it to be an open license, this it's just a category error to focus on individual provisions of the OGL 1.2. It's not an open license.

But if you resigned to the fact that Hasbro is not going to provide an open license, then what you're trying to do is get the best possible deal you can. Which means something along the lines of the following:

A. As much as possible in terms of "mechanics" and even some expression released under the CC.
B. Giving feedback to revise the terms of the OGL 1.2 to ensure that it will be palatable. This would include, for example, reforming the severance clause to specify what terms are fundamental to the contract and, in addition, making it mandatory (not discretionary) as to what happens if those specific terms are found to be invalid et al. And having some mechanism in the morality clause to ensure that either there is some independent check, or that it has standards that can be adjudicated. That sort of stuff.


But yeah, if you are demanding an open license, complaining about the provisions of OGL 1.2 is similar to someone who is allergic to dogs complaining that there is a particular dog that licks them when they choose to hang out, every day, for 12 hours at the dog park.

It's not an open license.
 

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