Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

pemerton

Legend
It is early in the morning for me & I'm still sleepy, but I think if I take material from say The Hypertext d20 SRD (v3.5, 5e & Pathfinder d20 System Reference Document) :: d20srd.org under the OGL I would be held to have a contractual relationship with WoTC, as well as with the d20SRD.org people, and with everyone else whose d20 game material I took. I think this is what Umbran means by calling the licence offer non-revocable.
My first thought is that WotC has a contractual relationship (licence) with A which permits A to issue sub-licences, and then you have a contractual relationship with A which also establishes the sub-licence. Because I don't think you've taken up WotC's offer, you've taken up A's.

But you think I'm wrong?
 

S'mon

Legend
My first thought is that WotC has a contractual relationship (licence) with A which permits A to issue sub-licences, and then you have a contractual relationship with A which also establishes the sub-licence. Because I don't think you've taken up WotC's offer, you've taken up A's.

But you think I'm wrong?
I think a court would say anyone down the line of licensing could sue anyone further down the line for breach of contract. In the UK in any case a third party beneficiary under a contract can sue under the Rights of Third Parties Act 1999 - but that only benefits third parties, it can't impose obligations on them of course.

The issue is that if there is a licence and sub-licence A-B-C-D, if there is no contract between A & D then D cannot acquire rights vs A, whereas the OGL and similar licences are clearly intended to confer rights on D vs A, as well as giving A rights vs D. I have no reason to think the OGL is not effective in doing this, and it does it by having consideration move from both parties - A (WotC) lets D do things they could not otherwise do, and D is prohibited from doing some things they could otherwise do.

I suppose a court could say there was not a contract, but a quasi-contractual relatonship, between A & D. But it looks like a contract to me.

It looks to me like a term of the OGL contract is that you must make the same OGL offer to everyone else down the line. So when I use the OGL I am accepting a unilateral offer from everyone whose material I use under the OGL. And that offer to C & D cannot be revoked by A once B has accepted it. Once B has accepted A's offer, A can't stop C contracting with A & B, and A & B can't stop D contracting with A B & C. So Umbran & Morrus are right about irrevocability in that sense.

(If we have any lawyers here who specialise in licensing or have read up on this sort of licence feel free to chip in. :) I am sure a lot of work has been done in this area especially by the Open Source movement.)
 
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pemerton

Legend
I think a court would say anyone down the line of licensing could sue anyone further down the line for breach of contract.

<snip>

The issue is that if there is a licence and sub-licence A-B-C-D, if there is no contract between A & D then D cannot acquire rights vs A, whereas the OGL and similar licences are clearly intended to confer rights on D vs A, as well as giving A rights vs D. I have no reason to think the OGL is not effective in doing this, and it does it by having consideration move from both parties - A (WotC) lets D do things they could not otherwise do, and D is prohibited from doing some things they could otherwise do.

I suppose a court could say there was not a contract, but a quasi-contractual relatonship, between A & D. But it looks like a contract to me.
In that case you think that WotC is not able to revoke it's offer vis-a-vis those who enter into subsequent contracts with D? That is, that it is bound to maintain the offer to all its prospective sub-licensees?
 

S'mon

Legend
In that case you think that WotC is not able to revoke it's offer vis-a-vis those who enter into subsequent contracts with D? That is, that it is bound to maintain the offer to all its prospective sub-licensees?
Yes, I edited to say that while you were replying. :)

It seems to me that this is what the OGL is clearly intended to do. A can withdraw its offer to future Bs (primary licensees), but under the terms of the A-B contract they can't stop current Bs contracting with future Cs (sub-licensees). Which then makes A a party to the B-C contract, making it an A-B-C contract.

Edit: The wonders of Offer & Acceptance! :D I do get the impression that modern US contract Law puts a bit less emphasis on the technicalities of Offer & Acceptance than classical English Contract Law, which may make this less of an issue for them.

Edit2: Now how can I make this into an exam question for my poor students...
 
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Nylanfs

Explorer
Yes, I edited to say that while you were replying. :)

It seems to me that this is what the OGL is clearly intended to do. A can withdraw its offer to future Bs (primary licensees), but under the terms of the A-B contract they can't stop current Bs contracting with future Cs (sub-licensees). Which then makes A a party to the B-C contract, making it an A-B-C contract.

Edit: The wonders of Offer & Acceptance! :D I do get the impression that modern US contract Law puts a bit less emphasis on the technicalities of Offer & Acceptance than classical English Contract Law, which may make this less of an issue for them.

Edit2: Now how can I make this into an exam question for my poor students...
I'd love to see that question and some of the student's responses. :)
 

lowkey13

I'm sorry, Dave. I'm afraid I can't do that.
Yes, I edited to say that while you were replying. :)

It seems to me that this is what the OGL is clearly intended to do. A can withdraw its offer to future Bs (primary licensees), but under the terms of the A-B contract they can't stop current Bs contracting with future Cs (sub-licensees). Which then makes A a party to the B-C contract, making it an A-B-C contract.

Edit: The wonders of Offer & Acceptance! :D I do get the impression that modern US contract Law puts a bit less emphasis on the technicalities of Offer & Acceptance than classical English Contract Law, which may make this less of an issue for them.

Edit2: Now how can I make this into an exam question for my poor students...
In no particular order, and very quickly-

1. I don't think that the dialogue regarding consideration (and/or offer and acceptance) between you and Pemerton is very productive; at some point, I am afraid one of you is going to start talking about peppercorns and I will do a complete facepalm. You are correct vis-a-vis your impressions regarding modern US contract law.

2. The issue of revocable and irrevocable licenses has been thoroughly done to death in the area of IP, specifically with regard to software licenses and other tech. If you're really curious, there's a lot of good case law out of the 9th Circuit (and the N.D. Cal.). If you don't have free westlaw or the like, feel free to use google scholar; if you want to do a deep dive, look into different courts and opinions re: breach of an irrevocable license.

3. The A-B-C thing really isn't as difficult as you are making it out to be. Give it a day, and look at it again.
 

lowkey13

I'm sorry, Dave. I'm afraid I can't do that.
Well that could have been more helpful.
It's not my place to be anonymously giving legal advice on the internet.

However, you are welcome to ... ahem ... look at cases in the 9th Circuit or N.D. Cal., concentrating on software licenses; you may find it helpful to look at the analysis in different jurisdiction regarding the possibility of breaching an irrevocable license.

Clear?
 

MoonSong

Rules-lawyering drama queen... Be nice plz n_n
It's not my place to be anonymously giving legal advice on the internet.

However, you are welcome to ... ahem ... look at cases in the 9th Circuit or N.D. Cal., concentrating on software licenses; you may find it helpful to look at the analysis in different jurisdiction regarding the possibility of breaching an irrevocable license.

Clear?
The question IMO isn't if WotC could remove the SRD from the OGL or even the whole OGL altogether. With enough money to buy enough competent lawyers they certainly could, eventually. The question is whether they should, that move would bring out a lot of bad PR and invite a few lawsuits from other players in the RPG business. On the other hand it could backfire by creating clear precedent that people at large has a lot of leeway with copying, referencing, and indicating compatibility. The only way thy could really lose is by actually getting into court.
 

lowkey13

I'm sorry, Dave. I'm afraid I can't do that.
The question IMO isn't if WotC could remove the SRD from the OGL or even the whole OGL altogether. With enough money to buy enough competent lawyers they certainly could, eventually. The question is whether they should, that move would bring out a lot of bad PR and invite a few lawsuits from other players in the RPG business. On the other hand it could backfire by creating clear precedent that people at large has a lot of leeway with copying, referencing, and indicating compatibility. The only way thy could really lose is by actually getting into court.
Apologize if unclear; I was just saying that while First Year Contracts is useful for spitballing starting ideas ("What if you asked someone to come over and help you out? And they backed out after agreeing to help you? Could you sue them for breach of an oral contract? What if you spent money thinking they were helping you?" etc.) it only gets you so far; looked at another way, you can go all Hadley v. Baxendale, but if you're discussing a contract for goods in NY, you should probably be looking at the UCC.

In a similar light, it's not like these IP licenses are a new thing, and there's a decent amount of caselaw on it.
 

Morrus

Well, that was fun
Staff member
The question IMO isn't if WotC could remove the SRD from the OGL or even the whole OGL altogether. With enough money to buy enough competent lawyers they certainly could, eventually.
I’m sure Paizo’s lawyers would have something to say.

And much as the meme goes that courts side with whoever has the most money, generally they side with whoever is right (assuming nobody has no incompetent representation). The world isn’t actually that much of an evil plutocracy (yet).
 

GreyLord

Adventurer
Of interest, though I no longer work and am in retirement...

In business I worked a lot with contracts and contract law...

I did NOT work with Licenses. (License can be seen under contracts but not all contracts are a license).

There's a lot of mixing and matching of the word contract and License in this thread.

From what I understand, a LICENSE can actually be withdrawn.

It is a little more complex with a contract, but a contract normally requires a little more than what most are utilizing the OGL as. It is a two way street which requires assent from BOTH parties, with legitimate offer AND acceptance (normally in writing with signatures), Capacity and legality. This includes that the offerer is notified of the acceptance.

Which could make an interesting legal case if WotC decided to close down the OGL...because how many have actually written in with an acceptance of any kind to WotC that their "contract" of the OGL is accepted?

That's just the first of four main items of the necessities of a contract. The OGL doesn't really fulfill those requirements per se, at least in how most utilize it. It COULD be seen as that, but it would boil down to a court fight if WotC or Hasbro wanted it to, and almost NO ONE has the resources to fight that fight for an extended period.

What WotC or Hasbro COULD do is close out the OGL overall in regards to their part and portion, and go after a more specific understanding and reading of the OGL (thus, anything perceived as a violation, they go after. Overall, they have been VERY LAX in this pursuit. You may create a Carrion Crawler, but you don't call it that, though anyone in their right mind understands exactly what it is. The same could be done with a Beholder or many other monsters they have in game).

That would create a lot of Ill Will I think (there are those that probably still remember that bad ole T$R days...that isn't a reputation I think WotC really wants)...but if they feel their interests are threatened unless they do so...I imagine it COULD bring them to doing such.

If someone actually HAD the resources to fight back on an enlongated fight, it could prove interesting to see who might win in regards to whether it is a contract, license, or otherwise in being able to be withdrawn...but I think there are very FEW players out there with those types of resources who could even last that long in that type of court battle.

Thus, for the most part, this is moot I think. If Hasbro decides to do something (in relation to Frylocke...who knows...they were being most kind thus far, and they really DON'T want the T$R reputation...so we'll see) they could, but luckily thus far, they've been wanting more to have good will (and the business it brings) rather than be seen as the big hostile bad guys.
 

lowkey13

I'm sorry, Dave. I'm afraid I can't do that.
From what I understand, a LICENSE can actually be withdrawn.
Licenses can either be revocable or irrevocable.

Irrevocable licenses can either be irrevocable or, um, revocable. It's complicated.

So basically- revocable, kinda revocable, and irrevocable. But you know that. ;)
 

S'mon

Legend
It's not my place to be anonymously giving legal advice on the internet.

However, you are welcome to ... ahem ... look at cases in the 9th Circuit or N.D. Cal., concentrating on software licenses; you may find it helpful to look at the analysis in different jurisdiction regarding the possibility of breaching an irrevocable license.

Clear?
I'd like something a lot more basic, thanks. Like the point you're trying to make.
 

MoonSong

Rules-lawyering drama queen... Be nice plz n_n
I’m sure Paizo’s lawyers would have something to say.

And much as the meme goes that courts side with whoever has the most money, generally they side with whoever is right (assuming nobody has no incompetent representation). The world isn’t actually that much of an evil plutocracy (yet).
The ability to keep appealing over and over favors the richer part. Plenty of open and shut lawsuits end up tied on appeals for years just because the party in the wrong has the money to keep stalling indefinitely.
 

ParanoydStyle

Peace Among Worlds
If Wizards really wanted to be litigious about this kind of thing, I feel like they would have sued Paizo lonnnng and hard when Pathfinder became a thing which is a thing that didn't happen (that I know of). No matter how the 3.X OGL was written, Pathfinder ripped off every single aspect of D&D (premise, genre, implied setting, races, classes, spells, trade dress and style as well as mechanics to become its chief competitor.

Oh and frylock is absolutely right about insufficient wealth precluding legal options. Right now there is someone I should absolutely be suing for defamation of character, slander, and libel, but I'm a poor person, so no lawyering up for me. I guess I'll just have to go with the budget option: heading to his house and breaking his legs with a baseball bat (joke).

In another of his posts, WOTC gives details.
"It looks like you’ve basically copied the text from our books, added check boxes and spell descriptions, and then placed your own copyright notice on the bottom. "
The way I read that, it almost seems like WotC wouldn't mind Frylock's One Stop Stat Blocks if he wasn't trying to copyright them himself. As these seem to be something that's being released to the community gratis (and of course kudos to Frylock for doing that, but also if I'm wrong anyone let me know), I don't really understand the need for Frylock to have them copyrighted in his name. Unless this is one of those situations where it's purely about "the principle of the thing".

Yes, if you thought your legal strategy had any chance of success in court. However, you would disclose it if you wanted your case tried in the court of public opinion, in the hope of a large out-of-court financial settlement, where you might suppose it had a much better chance, since that court pre-supposes that all large corporations are Evil and must therefore be In The Wrong.

You might even deliberately create something you knew to be an intellectual property violation (but just contentious enough to generate an argument) in the hope of receiving an out-of-court settlement.
I took an entirely different view of his outlining his legal strategy, practically the inverse, that he is trying to scare WotC into backing off based on his honest opinion of the strength of his case (however right or wrong he may be about that, no idea, IANAL).

BEGIN TANGENT:

Virtually all large corporations ARE (Lawful) Evil and almost all of the time, In The Wrong (at least that's my viewpoint as a socio-anarchist so take it for what it's worth). WotC however is a big faceless evil corporation that produces things I like. I find their business model for Magic: The Gathering to be horribly exploitative and severely unethical. I have less problems with their business model for D&D, with the exception of DM's Guild

I would still love to work for WotC one day. Publicly calling a corporation you want to work for "evil" is probably a good way NOT to get a job with them, so I guess I'd like to clarify, if it helps at all, that I don't believe anyone working at the company is evil. I think it's a company that's large enough that it is, virtually by default, evil, but one that's run by clever gamers so for that alone I'll cut it a lot of slack. If I ever work for WotC (highly unlikely even before this post), it will be on the D&D side, not the MTG side. As a rule, MTG is where WotC is most certainly in the wrong. Their predatory marketing tactics

"Cardboard Crack" is an extremely accurate description of Magic cards and scarcely an exaggeration. Over the course of my life I've wasted 15,000 dollars on the primary and secondary markets, and I have virtually nothing to show for it in terms of value in my binder (though to be fair, I do have a dozen EDH decks, and most of my best and hopefully most valuable cards are spread among those decks). I made these purchases because I was sick of losing all the time so I thought if I get better cards, I'll stand a better chance of winning. Adding insult to financial injury, I would still always lose, causing this vicious cycle to repeat. It was worst for me circa 2009-2010 and 2013-2014. I think that I have the vicious cycle relatively on lock.

That said, I spent at least two months rent on MTG this month alone, money I desperately want to have back.

Now technically all of this is my fault; I am a thinking human being with free will. WotC did not hold me at gunpoint and take my money. I did this to myself, the same way a literal crack addicted hurts themselves every time they pick up that crackpipe to smoke that crack. /TANGENT
 

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