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

[pemerton]

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]

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.)

 

[pemerton]

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]

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! 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...

 

[pemerton]

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

Good to see my analytic powers haven't completely failed!

 

[Nylanfs]

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! 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]

*Deleted by user*

 

[S'mon]

Well that could have been more helpful.

 

[lowkey13]

*Deleted by user*

 

[MoonSong]

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.