Boilerplate Language: Worrying about the OGL (Part 4)

[Clint_L]

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?

I imagine quite a few laws could apply to the situation you describe; it sounds like a really bad idea for them to do something like that. Interested to see a lawyer's response. Also, they would just be revoking the license from their own patsy, so what good would that do?

 

[Ashtagon]

I imagine quite a few laws could apply to the situation you describe; it sounds like a really bad idea for them to do something like that. Interested to see a lawyer's response. Also, they would just be revoking the license from their own patsy, so what good would that do?

The way the 1.2 draft is written, it could be taken as saying that if the issue is sufficient to revoke from one 3PP (or patsy), it could be taken as sufficient to revoke from all. The wording doesn't explicitly deny that potential.

 

[Snarf Zagyg]

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?

And @LordEntrails

On the issue of severability provisions ...

So the issue with contracts is this- what happens when someone goes to court and the contract is declared invalid because of, inter alia, a drafting error or a failure of one of the terms/provisions/clauses etc. Well, it gets complicated. Depending on the jurisdiction and the issue and the prior caselaw, the contract might be declared invalid completely (that's the usual outcome), it part (an offending portion is excised leaving the remainder), or in part again (a court might "redline" the contract to excise the offending portions, in effect reforming the contract).

These provisions are usually drafted because the parties want the contract to continue even if there is an issue with the contract - in other words, that the contract continue to be enforceable. But not always- sometimes they are drafted to ensure that the contract will fail if any provision (or certain key provisions) are not enforceable.

Here, we can see the distinction between the open license of OGL 1.0(a) (using a reformation provision as its severability provision) and 1.2. Since 1.2 is not open, it imagines that there are two scenarios- first, that someone successfully challenges 1.2 on an issue and it is deemed to be minor; one that WoTC doesn't mind keeping the license around for. OTOH, imagine if someone challenges the 6(f) provision (however it might end up) - if that is a major brand issue for WoTC, they may just wish to allow the whole license to fall.

@Clint_L

Collusive lawsuits ... not good. Again, this is why these conversations can seem bizarre to attorneys. "What if WoTC hired somebody to file a lawsuit so that they could declare the OGL illegal and then declare martial law???11!!!" It's not how things happen. On the other hand, the existence of that type of severance provision is, again, the tell that this is not an "open" license.

 

[LordEntrails]

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?

That's pretty much what I was trying to get at As for time period? I assume there is some statue of limitations. TV shows tell me that is usually 7 years G

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?

Sounds like criminal collusion of some sort.

Since 1.2 is not open, it imagines that there are two scenarios- first, that someone successfully challenges 1.2 on an issue and it is deemed to be minor; one that WoTC doesn't mind keeping the license around for. OTOH, imagine if someone challenges the 6(f) provision (however it might end up) - if that is a major brand issue for WoTC, they may just wish to allow the whole license to fall.

Thanks
So the concern I've expressed, that WotC could use this clause to revoke the entire license is valid. I can see why they would want such a clause, but I see how the community, and anyone using the OGL 1.2 would not want this. I also understand that how if some parts are invalid it could make the rest difficult or un-usable.

 

[Ashtagon]

You know, I'm not even sure it would require a patsy or collusion for WotC to create a lawsuit for the express purpose oof tearing down this licence at a time of their choosing. Part of this licence says that by using any material in this licence, you agree to it; in other words, you don't have to sign it, read it, or even be aware it exists, in order to 'agree' to its terms.

So WotC could sue SJG or GW (or more likely, a one-man-band publisher, as they won't have the means to argue back) for using hippogriffs (very spurious example, but something else might exist). They'll rightly say they never agreed to any such licence, and WotC can then say, oh, that line isn't enforceable? I guess we'll just have to revoke this sucker for everyone then.

The court case, to an outside observer, would be about as credible as when GW sued the Heinlein estate for its use of space marines. But that happened.

 

[Maxperson]

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.

It's not impossible to bring a class action. It's just really hard. There's an extra step in class actions called Class Certification, which is pretty tough to succeed at. I'm going by memory here, so the percentage is probably off, but at the employment law firm I worked at for 5 years I think we only succeeded in getting certified about 40-50% of the time.

 

[Maxperson]

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.

Yes, but I've seen attorneys speak on this and say that there are vague or contradictory terms in 1.2. You don't put in a provision that allows you to blow everything up if a clause is found to be invalid unless you intend to exercise it. Presumably WotC isn't including clauses that it doesn't want to be in the contract or that clause wouldn't be in there to begin with, so they want to at a minimum be able to blow everything up and re-write it with all of those clauses and then fix the one found to be invalid.

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?

That's a really good question.

 

[Snarf Zagyg]

It's not impossible to bring a class action. It's just really hard. There's an extra step in class actions called Class Certification, which is pretty tough to succeed at. I'm going by memory here, so the percentage is probably off, but at the employment law firm I worked at for 5 years I think we only succeeded in getting certified about 40-50% of the time.

... and that's at a firm doing (assumedly) Plaintiff's work in the employment area ... which is where many class actions originate (and also where all collective actions come from).

 

[Dausuul]

Here, we can see the distinction between the open license of OGL 1.0(a) (using a reformation provision as its severability provision) and 1.2. Since 1.2 is not open, it imagines that there are two scenarios- first, that someone successfully challenges 1.2 on an issue and it is deemed to be minor; one that WoTC doesn't mind keeping the license around for. OTOH, imagine if someone challenges the 6(f) provision (however it might end up) - if that is a major brand issue for WoTC, they may just wish to allow the whole license to fall.

Thanks for the explanation! Suppose this were to happen and Wizards decided to let the whole license fall. What would that actually look like? Does Wizards have some time frame where they have to make that call after the ruling is handed down? Or can they wait for years and then say, "We've been thinking and thinking about it and finally decided to scrap the whole license?"

 

[Snarf Zagyg]

You know, I'm not even sure it would require a patsy or collusion for WotC to create a lawsuit for the express purpose oof tearing down this licence at a time of their choosing. Part of this licence says that by using any material in this licence, you agree to it; in other words, you don't have to sign it, read it, or even be aware it exists, in order to 'agree' to its terms.

So WotC could sue SJG or GW (or more likely, a one-man-band publisher, as they won't have the means to argue back) for using hippogriffs (very spurious example, but something else might exist). They'll rightly say they never agreed to any such licence, and WotC can then say, oh, that line isn't enforceable? I guess we'll just have to revoke this sucker for everyone then.

That's not an accurate hypothetical, because that's not how the law works. In any universe.

If people were actually trying to comment in good faith, and accepted the fact that this is not, in fact, an open license, and wanted to provide accurate feedback as to what proper changes to the boilerplate would be ... instead of engaging in repeated inaccurate hypotheticals, they would do one of the following:

1. Ask that a standard severance provision be put in (one that states something along the lines of, In case any one or more of the provisions of this License shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this License will not be affected.

2. Ask that Hasbro specify those provision that must remain standing for the license to continue (one that state something along the lines of, In case any one or more of the provisions of this License shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this License will not be affected. Notwithstanding the foregoing, or any other provision of term of this License, the provisions in paragraphs X and Y are are considered necessary to the License as a whole, and if paragraphs X or Y are held to be invalid, illegal, or unenforceable in an respect, the entire License shall be declared void in its entirety.).

3. Ask that the severance provision be removed, because they don't understand what it means ... and take their chances. Go on. Do it.