Boilerplate Language: Worrying about the OGL (Part 4)

[S'mon]

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.

By 'specific' ill intent I expect you mean specifically targeted vs 1 person, rather than general greed & self-aggrandisement.

 

[dave2008]

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.

I agree the OGL 1.2 draft is not an open license, but could it be? If the changes you listed are made and provisions for sharing are added, could it become an open license? In other words, what makes something an open license?

 

[Clint_L]

So I am not the King of Everyone (.... yet ....)...

You have my sword!

(which would be pretty useless because I would likely just injure myself or someone close to me, but still. My sword!)

 

[p_johnston]

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.

So while I can't speak for everyone I can say I don't think the boilerplate clauses are where most people are getting the feeling of Hasbro's ill intent. Its more a matter of the breaking of their word, the attempt to take royalties, and them acting generally untrustworthy. If most of the boilerplate stuff had come up without the context of Hasbro already having broken peoples trust it wouldn't be an issue.
EDIT: In essence when making a contract with an entity that you don't trust it seems only logical to look at everything in the worst possible light or imagine the worst possible circumstance. Even if it is boilerplate that doesn't mean WOTC isn't going to use it to screw anyone who agrees to the new license.

 

[p_johnston]

I will say that the OGL 1.2 not being an open license is part of the issue.
1) with the OGL 1.0a WOTC promised to keep an eternal open license. If they had updated to the 1.2 or 1.1 with another open license with the explanation of "hey the 1.0a has some structural weaknesses and legal loopholes that we need to close for our own protection. This new license is also open and eternal but just updated to be cleaned up with modern legal language." There would likely have been blowback but not nearly the venom that WOTC is currently experiencing.
2) WOTC is very much not being clear that it is not an open license. In addition to calling it the Open Gaming License they are acting like its just a new iteration of the OGL 1.0a with a few minor changes not like it's a departure to an entirely new type of license. In short even though the license they are now putting forward isn't an open license WOTC is at best being unclear about that fact and at worst is hoping to use the confusion to deceive people into believing the new OGL is something it's not.

 

[Dausuul]

I agree the OGL 1.2 draft is not an open license, but could it be? If the changes you listed are made and provisions for sharing are added, could it become an open license? In other words, what makes something an open license?

The exact definition depends on who you ask, but the basic principles are that you don't have to pay to use the licensed material; there are minimal restrictions on how you can use the licensed material; and the license cannot be withdrawn or altered as long as you abide by the terms. "Minimal restrictions" is stuff like including an attribution notice, and allowing others to license the material on the same terms from you.

(Also, I would argue there is an implied principle that the license can't require you to give up a bunch of unrelated rights.)

The 1.2 draft meets the first principle (unlike the 1.1 draft), but not the others. The restriction to printed media and static files violates the second. The morality clause violates both the second and third. There are a boatload of "you can't take us to court for pretty much anything, and if you somehow do take us to court, you can't do anything that might help you win your case" clauses that violate the implied fourth.

Note that the original OGL is not a fully open license either by this definition; it follows the first three principles, but violates the implied fourth with restrictions on use of WotC trademarks. However, that is just one modest restriction, far less egregious than all the stuff in 1.2.

 

[dave2008]

The exact definition depends on who you ask, but the basic principles are that you don't have to pay to use the licensed material; there are minimal restrictions on how you can use the licensed material; and the license cannot be withdrawn or altered as long as you abide by the terms. "Minimal restrictions" is stuff like including an attribution notice, and allowing others to license the material on the same terms from you.

(Also, I would argue there is an implied principle that the license can't require you to give up a bunch of unrelated rights.)

The 1.2 draft meets the first principle (unlike the 1.1 draft), but not the others. The restriction to printed media and static files violates the second. The morality clause violates both the second and third. There are a boatload of "you can't take us to court for pretty much anything, and if you somehow do take us to court, you can't do anything that might help you win your case" clauses that violate the implied fourth.

Note that the original OGL is not a fully open license either by this definition; it follows the first three principles, but violates the implied fourth with restrictions on use of WotC trademarks. However, that is just one modest restriction, far less egregious than all the stuff in 1.2.

So the answer is yes, OGL 1.2 could be an open license (at least as much as 1.0 was). That is what I thought. Fairly simply too.

However, I disagree with your point about restrictions on media. IMO, it could still be an open license if it only covered print media. It is just a narrow open license. The point would be it is not as inclusive as 1.0.

 

[Snarf Zagyg]

So the answer is yes, OGL 1.2 could be an open license (at least as much as 1.0 was). That is what I thought. Fairly simply too.

However, I disagree with your point about restrictions on media. IMO, it could still be an open license if it only covered print media. It is just a narrow open license. The point would be it is not as inclusive as 1.0.

I think that @Dausuul gave a thoughtful response. I don't agree with all of it, but it also goes to the issue of there not being a common and accepted definition of "open license." I think that this provides a useful framework-

What are Open Licenses?

www.yearofopen.org

Note the most basic definition is in the first sentence-
Open Licenses are a set of conditions applied to an original work that grant permission for anyone to make use of that work as long as they follow the conditions of the license.

As I am fond of saying, the Robot Devil is in the Robot Details, and the Robot Details for this most basic definition is ... what are the conditions? That said, I would delve into further details.

For example, and this is important for this discussion, standard boilerplate is a part of most modern open licenses. Go ahead and look at the GNU Public License (GPL) 3.0, which many people consider a sterling example of an open license. Here it is.*

But examining the GPL... look at paras. 15-17. What are those? Oh yeah, they are disclaimers of warranty and limitations of liability! And notice that people can add material to the work under GPL and have additional permissions (para. 7).

And this is a widely adored, copyleft license that is limited in scope (it is intended for software).

Moving back to your question ... the primary issue is that OGL 1.2 is only ever going to be "open-ish," in my mind, when the following two provisions remain-

1. Any provision that the license can be terminated as to a licensee or a work without the ability to cure.
2. Any provision that the license can be voided, updated, or revoked. In other words, a severance provision should be either a traditional severance provision, a reformation provision, or both. Here is an example from the CC- To the extent possible, if any provision of this Public License is deemed unenforceable, it shall be automatically reformed to the minimum extent necessary to make it enforceable. If the provision cannot be reformed, it shall be severed from this Public License without affecting the enforceability of the remaining terms and conditions. (Per my earlier discussion, this is essentially "redlining" a provision first, and then severing it from the contract second).

That said, I think the primary fault line will continue to be the moral clause; this is because WoTC desires to maintain some degree of control (at last inasmuch as they want control over how their brand is perceived) ... which is a rational desire. But retaining control is kind of against the very purpose of an open license that is disseminated in order to allow other to build upon the work you are releasing. In other words, it's almost as if they want to portray this as being similar to CC BY-SA, but retain (some) editorial control over all derivatives and all works based on derivatives, and so on.


*If you want a contrast, you can look at the varying levels of Creative Common Licenses (here). FWIW, CC licenses also contain some of the boilerplate, such as limitations of liability, that people are complaining about. Almost like there's a reason for it, and they have been added organically over time.

 

[dave2008]

I think that @Dausuul gave a thoughtful response. I don't agree with all of it, but it also goes to the issue of there not being a common and accepted definition of "open license." I think that this provides a useful framework-

What are Open Licenses?

www.yearofopen.org

Note the most basic definition is in the first sentence-
Open Licenses are a set of conditions applied to an original work that grant permission for anyone to make use of that work as long as they follow the conditions of the license.

As I am fond of saying, the Robot Devil is in the Robot Details, and the Robot Details for this most basic definition is ... what are the conditions? That said, I would delve into further details.

For example, and this is important for this discussion, standard boilerplate is a part of most modern open licenses. Go ahead and look at the GNU Public License (GPL) 3.0, which many people consider a sterling example of an open license. Here it is.*

But examining the GPL... look at paras. 15-17. What are those? Oh yeah, they are disclaimers of warranty and limitations of liability! And notice that people can add material to the work under GPL and have additional permissions (para. 7).

And this is a widely adored, copyleft license that is limited in scope (it is intended for software).

Moving back to your question ... the primary issue is that OGL 1.2 is only ever going to be "open-ish," in my mind, when the following two provisions remain-

1. Any provision that the license can be terminated as to a licensee or a work without the ability to cure.
2. Any provision that the license can be voided, updated, or revoked. In other words, a severance provision should be either a traditional severance provision, a reformation provision, or both. Here is an example from the CC- To the extent possible, if any provision of this Public License is deemed unenforceable, it shall be automatically reformed to the minimum extent necessary to make it enforceable. If the provision cannot be reformed, it shall be severed from this Public License without affecting the enforceability of the remaining terms and conditions. (Per my earlier discussion, this is essentially "redlining" a provision first, and then severing it from the contract second).

That said, I think the primary fault line will continue to be the moral clause; this is because WoTC desires to maintain some degree of control (at last inasmuch as they want control over how their brand is perceived) ... which is a rational desire. But retaining control is kind of against the very purpose of an open license that is disseminated in order to allow other to build upon the work you are releasing. In other words, it's almost as if they want to portray this as being similar to CC BY-SA, but retain (some) editorial control over all derivatives and all works based on derivatives, and so on.


*If you want a contrast, you can look at the varying levels of Creative Common Licenses (here). FWIW, CC licenses also contain some of the boilerplate, such as limitations of liability, that people are complaining about. Almost like there's a reason for it, and they have been added organically over time.

Thanks Snarf! So again the answer is yes, but...will WotC make the necessary changes. I have my doubts, but remain hopeful!

PS - your legal speech is sexy too (not just @pemerton's)