Does WOTC have the right?

[Samuel Leming]

I agree. It feels like walking blind in a mine field.

There's obviously something we're not allowed to post, but I can't, for the life of me, realize what it can be.

Yes, it is hard to follow, but I'll try.

If Orcus posted what I think he posted, it's probably something that's been said a thousand times in the last thirty years anyway, but since he's got a good relationship going with WotC he doesn't want his name attached to it. Especially since Mr. Mueller slashdotted him just yesterday. It's not so much not allowed as being pointedly rude to post it. Yeah, I guess being pointedly rude isn't allowed.

Second, it would probably be bad to openly argue about it.

I think these kind of things dropping out are what's turning this thread into swiss cheese.

Sam

 

[S'mon]

If you believe that Wizards has somehow retained the right to terminate the license (as I'm sure they believe), they still have to inform the licensees in an appropriate manner. I have a hard time believing that a message on a internet message board or a website announcement would be considered appropriate. They would likely have to gather up all of the d20 STL confirmation cards and send each licensee a formal termination letter.

It looks to me that WoTC are actually in a very bad situation in terms of contract law (I teach UK contract law). Here in the UK, enforceable contracts require bilateral consideration - something of value moving from both parties. And there is a general principle that any ambiguity in a contract term is to be construed against the party that wrote the term. With 3pps already signed up to a contract that does not include a termination clause, it may not be legally enforceable to re-issue the license with a termination clause and then terminate.

There are ways to interpret it differently - an implied term that WoTC could terminate on reasonable notice. The standard for implied terms is that they "go without saying" - that both parties would assume their existence. I don't think a termination clause meets that standard.

More likely, right to update may be taken to include right to add a termination clause, then enforce that clause at reasonable notice. A court may think eg 6 months from issue of the updated license was reasonable. Or they may not.

Overall, WoTC's lawyers really screwed up not including an at-will termination clause.

 

[S'mon]

In addition, because section 6 does not limit itself only to termination for breach, there's a good argument that WotC intended to retain termination powers without recourse to amendment.

Such intent is not legally relevant though, unless it's the mutual unspoken intent of both parties to the contract. The party who writes the contract is already in a strong position; they have every opportunity to incorporate their intent into the written terms of the contract. If they don't, that's their lookout.

 

[Goobermunch]

Such intent is not legally relevant though, unless it's the mutual unspoken intent of both parties to the contract. The party who writes the contract is already in a strong position; they have every opportunity to incorporate their intent into the written terms of the contract. If they don't, that's their lookout.

I don't know how courts in the UK construe contracts, but where I'm from, the general rule of thumb is that a court will construe a contract to acertain and effectuate the intent of the parties by giving full effect to each word of the contract and avoid constructions that are strained or lead to an absurd result. Moreover, the general rule that a contract is strictly enforced against the drafter in the event of ambiguity has fallen out of favor and is to be used only as a last resort by the court. Instead, where an ambiguity arises, a court should consult extrinsic evidence.

I'm not going to say what a court would do with the d20 STL. Courts are unpredictable things that do what they will under a veneer of reason and logic. I will say that WotC has, at the very least, a good faith argument that the power to terminate from Section 6 includes the power to terminate without breach. Moreover, it's my understanding that the general understanding of the parties (i.e., WotC and the 3pps), has always been that the d20 STL is revocable.

Combine the revocability of the license with the broad language of the termination clause and a court definitely has a place to hang its hat. That said, the 3pps also have an argument against application of the termination clause. Were I representing them, I'd argue that application of the termination power is conditioned on breach, and that therefore, WotC cannot terminate the license without evidence of breach. However, all that WotC needs to do to settle the issue is, on June 6, 2008, release version 7 of the d20 STL stating "All rights formerly granted by this license have been terminated."

--G

 

[S'mon]

1. Moreover, the general rule that a contract is strictly enforced against the drafter in the event of ambiguity has fallen out of favor...

2. However, all that WotC needs to do to settle the issue is, on June 6, 2008, release version 7 of the d20 STL stating "All rights formerly granted by this license have been terminated."

--G

1. How nice for the contract-writers. How very American.

2. As I said, I'm not sure such a term would be enforceable under UK contract law. Anyway as long as WoTC behave reasonably, presumably no one will dispute it, so things should be ok.

 

[madelf]

However, all that WotC needs to do to settle the issue is, on June 6, 2008, release version 7 of the d20 STL stating "All rights formerly granted by this license have been terminated."

Can they really though? Or rather, yeah, they could do it (and it would prevent new d20 product obviously), but would it actually mean much relating to previously existing product? Even assuming the license can be terminated (which I imagine it can - at least as far as producing new work under it) can it really be, in effect, terminated retroactively?

I honestly have trouble believing that WotC could force someone to agree to a revised STL. Certainly they could make them abide by it if they wished to keep producing d20 product (which is pointless because WotC doesn't want people to produce new d20 product anyway), but I'm not sure they could make them abide by the new STL if the publisher chooses not to use it - meaning the publisher ceases to produce any further d20 product after the date the revision (or termination) goes into effect. In that case, the publisher simply isn't a party to the revised license, and has ceased going forward with the old license. I don't see how that could be construed to effect existing products that they produced while they were operating under the old version, unless WotC could show that they were in breach of the old version.

I'm no lawyer, so I'm just speculating... but this sounds like the same sort of situation credit card companies have with the terms they can change "at will", the card-holder has no obligation to accept the new terms, or to pay off the balance if they don't (except as outlined under the old terms they did agree to, of course), unless they keep using the card after they've been notified of the changes. So... if someone doesn't keep using the STL to produce new product, their old product should not be effected. Or so it seems to me - I know if I were a publisher with a large backstock of d20 stuff, I'd at least be looking into it.

I think the word from WotC (after consultation with the lawyers) is going to be that pre-existing d20 product will still be allowed to be sold. I'm sure it will be spun as "we're doing this out the kindness of our hearts" of course, because that's just good PR, but I suspect they won't have much choice (unless they put a clause in the GSL about pulping d20 product, but that would only effect those who go forward with that).

[/idle speculation]

 

[Orcus]

You might want to see Scott's comments on the new "ICV2 talks to Scott Rouse" thread. Link in caption above on the board. The comments are very, very reassuring. Still questions to be answered, but I am very happy with what I am reading.

I'm telling you guys, trust Scott and Linae.

Clark

 

[BryonD]

You might want to see Scott's comments on the new "ICV2 talks to Scott Rouse" thread. Link in caption above on the board. The comments are very, very reassuring. Still questions to be answered, but I am very happy with what I am reading.

I'm telling you guys, trust Scott and Linae.

Clark

What are you seeing there that is new? Did I read right over anything about the poison pill?

 

[Goobermunch]

Can they really though? Or rather, yeah, they could do it (and it would prevent new d20 product obviously), but would it actually mean much relating to previously existing product? Even assuming the license can be terminated (which I imagine it can - at least as far as producing new work under it) can it really be, in effect, terminated retroactively?

I honestly have trouble believing that WotC could force someone to agree to a revised STL. Certainly they could make them abide by it if they wished to keep producing d20 product (which is pointless because WotC doesn't want people to produce new d20 product anyway), but I'm not sure they could make them abide by the new STL if the publisher chooses not to use it - meaning the publisher ceases to produce any further d20 product after the date the revision (or termination) goes into effect. In that case, the publisher simply isn't a party to the revised license, and has ceased going forward with the old license. I don't see how that could be construed to effect existing products that they produced while they were operating under the old version, unless WotC could show that they were in breach of the old version.

I'm no lawyer, so I'm just speculating... but this sounds like the same sort of situation credit card companies have with the terms they can change "at will", the card-holder has no obligation to accept the new terms, or to pay off the balance if they don't (except as outlined under the old terms they did agree to, of course), unless they keep using the card after they've been notified of the changes. So... if someone doesn't keep using the STL to produce new product, their old product should not be effected. Or so it seems to me - I know if I were a publisher with a large backstock of d20 stuff, I'd at least be looking into it.

I'm not sure. Here's what I think is the relevant text from the current d20 STL:

9. Changes to Terms of the License
Wizards of the Coast may issue updates and/or revisions to this License without prior notice. You will conform in all respects to the updated or revised terms of this License. Subsequent versions of this License will bear a different version number.

That's pretty clear language saying that you'll conform to updated terms.

--G

 

[Orcus]

What are you seeing there that is new? Did I read right over anything about the poison pill?

No, you didnt. But the terms they speak of for d20 content is more favorable than it could have been. Plus, they have now publically stated that you could simply remove the logo and use the OGL to reprint the prior work. They arent trying to stop that. That answers part of the backstock question. Of course, how this interacts with the GSL remains to be seen. But I am taking some comfort from the reasonable and friendly terms that have been announced.