Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

pemerton

Legend
So perpetual and irrevocable have meanings in law. Deauthorize does not.
This isn't really accurate. Interpreting a written contract, in the common law, is about establishing the intention of the parties as conveyed by the words that they used to record and express their agreement. The use of particular words might help in some contexts, but (as a general proposition) no particular consequences flow automatically from particular choices of words.

This is also relevant to ORC, in my view:
None of the companies involved in its creation are likely to become as large as Hasbro (not least because their are several of them), and even if they do they will not control the text of the licence itself in the way that WotC do. It will have learned the lessons from the OGL, including the recent debacle, and attempted to head prevent history repeating itself.
I don't think the drafting of the OGL is the real issue here. The claims that WotC are making are of course expressed in terms of the drafting, but were it drafted differently WotC would just frame its claims differently.

The key thing is that WotC is throwing its commercial weight around (including its capacity to fund its own litigation) and using what I think are dubious-to-spurious legal claims as a type of fig leaf. The drafting of ORC won't prevent that sort of thing happening in the future. It's the size, and even more so the relative sizes, of participants in the licensing scheme that seems more relevant to this issue (as per the first bit of @glass's quoted post).
 

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Maxperson

Morkus from Orkus
This isn't really accurate. Interpreting a written contract, in the common law, is about establishing the intention of the parties as conveyed by the words that they used to record and express their agreement. The use of particular words might help in some contexts, but (as a general proposition) no particular consequences flow automatically from particular choices of words.
Saying a contract is perpetual, though, doesn't automatically mean irrevocable. You need to look at more to figure it out. A contract that is saying that it is irrevocable is pretty clear about what it means.
 

Well, yes, lawyers here are technically split on that, but only in the sense that one lawyer posting in this thread said they could, and every other lawyer posting in the thread said that lawyer was wrong.
I have seen less lawyers (and law people because there were 2 paralegals and someone that said they were lawyer adjacent what ever that means) side with it CAN be revoked but it's more then 1 here and elsewhere. the majority say it shouldn't or couldn't be revoked.

However several of the peeps saying it shouldn't are giving it 3/4 odds or 9/10 odds and 1 person literally say 1 IN 20.

So I think from what I see IF it went to court and IF it went all the way through trial, the 3pp will have the advantage, but it wasn't a forgone conclusion.
 

mamba

Hero
I think this is the key question that would need to be resolved by a specific court in a specific case.
IANAL, but I take this to mean, you cannot freely enter, as in you also have obligations under the license, not just rights. If my understanding is true, then I am not sure why that even is a question.

You have to include the license, you have to specify the OGC, you specify your PI. To me that should be enough to make it clear
 



Jerik

Explorer
So I think from what I see IF it went to court and IF it went all the way through trial, the 3pp will have the advantage, but it wasn't a forgone conclusion.
Oh, absolutely it's not a foregone conclusion; I didn't mean to imply it was. I just thought saying lawyers here were split on the matter was a little misleading when only one lawyer here had said it was revocable. (Though yes, even the lawyers who argued that it was irrevocable admitted that court cases were unpredictable and there were no guarantees.)

I think Maxperson is partially right in that yes, a license that said it was irrevocable would probably be harder to get out of; I just think they're being a little too dogmatic in insisting WotC could never have tried this if that word were there. From what pemerton and others have been saying, WotC could still have come up with clever wording to try to weasel their way out of the license even if it said it was irrevocable; no matter what wording was in the contract, they could still construct an argument to get out of it. (Whether that argument would hold up in court is another matter altogether, but irrelevant if it never goes to court.)
 

Matt Thomason

Adventurer
IANAL, but I take this to mean, you cannot freely enter, as in you also have obligations under the license, not just rights. If my understanding is true, then I am not sure why that even is a question.

You have to include the license, you have to specify the OGC, you specify your PI. To me that should be enough to make it clear

Possibly of additional legal weight here is that you waive your usual fair use rights to WotC IP as a part of the OGL, I'd probably make an argument you potentially restrict your own sales reach as a part of that agreement and therefore the agreement had a material cost to the licensee beyond opening some of their own content.
 

CapnZapp

Legend
Please stop arguing with publishers about what publishers are going to do. At the very least, if you believe your opinion is valuable, advise them on what they should do. Your repetition of "the trust is gone" and insistence that you know what publishers are going to do is incredibly tiresome. :whistle:
You know Greg, I'm not having a private conversation between paid professionals here. We're just gamers discussing on an online forum, and I'd appreciate it if you would at least pretend you think we're all equal here. So no, I'm not "arguing with publishers". I'm partaking in an open group discussion between anonymous internet users. And that particular discussion has very clearly ended anyway, so... yeah.
 

pemerton

Legend
I think this is the key question that would need to be resolved by a specific court in a specific case.
No doubt past statements by former WotC employees would play a role in resolving the question!
It's not really possible to predict the course that future litigation might take.

But if I was setting this is as an exam problem, here's roughly how I would see some of the key issues breaking down:

Identify offer and acceptance: an offer to the all the world (a la Carlill v Carbolic Smoke Ball Co), with acceptance established by the appropriate mental state accompanying use of the SRD content. The original licensor can retract that freely-made offer at any time.

Identify consideration flowing in both directions: the licensor promises grants a licence to use their OGC (as defined by the terms of their offer ie the licence text); the definitions of use etc mean that this includes a power to sub-licence, which seems to be reinforced by the reference to sub-licences in section 13. The licensee, in return, promises to offer to the world to licence their OGC on the same terms (and unlike WotC as original licensor, they are bound not to retract their offer), and also promises to refrain from exercising certain privileges of use they might enjoy in respect of some of the licensor's trademarks and/or copyrights (to spell this out fully would mean going into the definition of product identity, and into doctrines around fair use and use of a trademark without passing off, etc).

This discussion would carry more marks than the discussion of offer and acceptance, but ultimately doesn't seem that difficult.

Identify other interesting legal features of the contractual regime created: one of these is the power that WotC enjoys, under section 9, to promulgate variant licences, and the concomitant power of licensees to choose which licence to use when they use others' OGC. There are at least two aspects of this a good answer might tease out in more detail: (i) to what extent must a variant licence replicate the terms of the OGL itself in order to count as a "version" for section 9 purposes (a good answer would approach this in terms of (i)what contractual permissions has a downstream licensor granted to (a) WotC to establish new terms for downstream licences and (b) downstream licensees in respect of their use of the licensor's OGC); (ii) what if any legal consequences flow from the different wording used in section 9 compared to section 4 to describe the licensee's entitlements (ie is this of legal significance, or just a drafting infelicity)? I think this is harder than either of the above points - the text of the contract doesn't take it all that far in my view, and more thought has to be given to establishing a plausible account of the contractual regime the parties are creating. Concepts of "reasonableness" might have some work to do in this analysis.

Another of these interesting features is the way that section 13 operates to preserve sub-licences even in the event of termination for breach. I think this is easier than the section 9 analysis, but there is scope both for technical work (ie even terminated licensees remain parties to the contract to the extent that their promise to downstream licensees conferring permissions and powers on those licensees remains on foot) and practical analysis (ie the role of this in supporting the network of interlocking contracts that creates the OGC "ecology").

A third interesting question, and the one raised by the OP, is what powers - grounded in their intellectual property rights - do contractual parties retain to revoke or vary the terms of the licences they have granted? Do these follow the contract, or do they obtain independently of the contract but potentially give rise to breaches of the contract if exercised? Answering this requires knowledge both of IP law in general, including the power that parties enjoy under that law to vary the incidences of their own ownership of intellectual property; and also articulating an interpretation of the contract insofar as it bears on these matters. This second part of answering the question would draw on the use of the word "perpetual", the presence of section 13, the absence of an express power of revocation, etc. The past conduct of WotC, both what it said to (actual and prospective) licensees and how it acted or didn't act in relation to them, would be relevant at this point also.

Consider consequences of, and remedies for, breach: if WotC purports to revoke the licence, and on the better view of things does enjoy such a power, but in doing so is in breach of the contract, do licensees get damages for breach? or can they insist that they still enjoy the licensed permissions and powers? Does it make a difference to this if the licensee is plaintiff - and hence seeking a remedy - or defendant to a copyright suit - and hence seeking to simply stand on its contractual rights? Etc.​
 

pemerton

Legend
Saying a contract is perpetual, though, doesn't automatically mean irrevocable. You need to look at more to figure it out. A contract that is saying that it is irrevocable is pretty clear about what it means.
You are assuming that the meaning of the words "perpetual" and "irrevocable" are given outside the context of their use in the contract. Which is what I am saying is a methodological error.

I mean, here's one natural-language meaning of "perpetual": will last forever. And here's one natural-language meaning of "irrevocable", in the context of an agreement or arrangement: unable to be brought to an end by an act of will.

On those meanings, then, because will last forever entails is not able to be brought to an end, and a special case of is not able to be brought to an end is is not able to be brought to an end by an act of will, something's being perpetual would entail it being irrevocable.

Of course, the natural language meanings I've canvassed aren't the only way those words can be used. But arguments about the variety of natural language meanings, and the logical relations between them, won't settle the interpretation of any particular contract. That's a matter of construction of the terms of that contract in their context.
 

gban007

Explorer
You know Greg, I'm not having a private conversation between paid professionals here. We're just gamers discussing on an online forum, and I'd appreciate it if you would at least pretend you think we're all equal here. So no, I'm not "arguing with publishers". I'm partaking in an open group discussion between anonymous internet users. And that particular discussion has very clearly ended anyway, so... yeah.

Seems a bit ironic posting this in a thread where lawyers are giving their views, and people are generally accepting that the lawyers likely have a better opinion of the legal situation - whereas what you're saying above suggests their opinion shouldn't have any more weight than any other person posting, so their knowledge and expertise counts for nothing. I guess we can also discount what this anonymous RyanD poster has to say about what WOTC's original intentions of the licence were, and come up with our own speculations that would have as much weight.

I fundamentally disagree with your take that people who have identified themselves as publishers, and indeed some of them have their names quite clear and distinctly identifiable and happily name what they are associated with (and so not really anonymous unless you think they are lying)- suddenly have no clout when it comes to talking about what publishers may or may not be doing.
 

You know Greg, I'm not having a private conversation between paid professionals here. We're just gamers discussing on an online forum, and I'd appreciate it if you would at least pretend you think we're all equal here. So no, I'm not "arguing with publishers". I'm partaking in an open group discussion between anonymous internet users. And that particular discussion has very clearly ended anyway, so... yeah.
I somehow feel less anonymous than you, Captain. In any case, because it might actually help, take a deep breath and go back and look at your responses to @jgbrowning. Here, I'll copy-paste for you:

Eh, you might want to look around you. You're the only one still in the play garden - everybody else has left.

Nobody is willing to risk the future of their plans on what a court is saying - especially since WotC has so clearly shown itself to be hostile to the idea to continued peaceful coexistence; even if the courts decide clearly against WotC, that victory would still be pyrrhic.

It's dead, Jim.

That's a publisher you're dictating to. Does that really seem like "open discussion" to you?
 

You'd be surprised. In case I don't always make it clear, I've been in the hobby since 1975. I can promise you there were not as many third party games as there are in the modern period, simply because the PDF market and modern digital preparation tools has dropped the entry bar so low. Even the extremely cheap production quality of some 80's games had more overhead than that.

Seriously man, sometime get on DTRPG and select "core books" and don't screen for anything else. There are over 15000 hits. And that doesn't even count the people who don't go through DTRPG. That's ignoring "non-core books".

As I said, you might have more ongoing lines of games in the 80's and 90's now (I'm not sold on it, but its possible), but individual games and products? Not even.
Oh, I was exaggerating a bit, but there was a LOT of stuff out there, even in the days of like GENCON X, which was probably about the the time things got real crazy. But that's my point, it isn't OGL doing this, its the fact that you can publish an RPG for ZERO DOLLARS and potentially even get paid for it if you are good enough at a little PR to Kickstart it.
 

Yes - better than Leagle Eagle. I got the impression LE isn't an IP lawyer, at any rate he didn't engage with the important Idea vs Expression dichotomy.
Right, but ANY argument on this ground is dangerous. What is STR, CON, DEX, INT, WIS, CHA? Is it an idea, ability scores as a way of rating characters ability to do things, or is that specifically the expression of a more general idea (ability scores in the abstract). This is a lot like the Monopoly board; game boards in abstract, and even the details of a 'path' made up of spaces, may be purely an idea, but if you label those spaces 'Mediterranean Avenue', 'Community Chest', 'Baltic Avenue', 'Income Tax', 'Reading Railroad', etc. then you are very seriously likely to be getting a C&D letter from guess who!

This is the problem with ANY 'D&D-like'. Exactly where is the boundary? Can I have hit points, levels, character classes? Where exactly is the line between abstract concepts, standard terminology, and protected expression? The only path to finding out is long and expensive, and you won't outspend WotC...
 

mamba

Hero
This is the problem with ANY 'D&D-like'. Exactly where is the boundary? Can I have hit points, levels, character classes?
yes to all of these, have you seen any CRPG in the last 40 years? They all use this, much too late for WotC to claim anything.

Probably even to the same 6 ability scores. Tunnels & Trolls had 5 of them in 1975 and nothing happened, so any chance of WotC doing something now is gone. If you want to be real safe do not make it the exact same 6, just like T&T did not
 

yes to all of these, have you seen any CRPG in the last 40 years? They alll use this, much too late for WotC to claim anything.

Probably even to the same 6 ability scores. Tunnels & Trolls had 5 of them in 1975 and nothing happened, so any chance of WotC doing something now is gone. If you want to be real safe do not make it the exact same 6, just like T&T did not
Well, I'm not going to claim any deep knowledge of what would constitute forfeit of a right to action in copyright, but the mere fact that YOU got away with something doesn't automatically mean I will! And even if ONE guy didn't cross the line, doesn't mean the NEXT guy didn't. Nor does any of this matter when someone with 1000x more resources to litigate than you is asking the question...

And this is the real issue here, who is going to ACTUALLY dare to license their D&D-like under ORC? Or CC for that matter. Once you are no longer operating under the auspices of the OGL, with its allowance for you to use various WotC-published SRDs worth of terms and game implementation, you are most certainly a lot more likely target for action. This seems, IMHO, even more likely if the 'sort of thing' you are making, a TTRPG, is of the same sort as the original work, another TTRPG.

Remember, TSR stopped GARY GYGAX from publishing an RPG!
 

This is the problem with ANY 'D&D-like'. Exactly where is the boundary? Can I have hit points, levels, character classes? Where exactly is the line between abstract concepts, standard terminology, and protected expression? The only path to finding out is long and expensive, and you won't outspend WotC...
So people really, for absolute god's sake, STOP PRETENDING IT'S JUST ABOUT WHO SPENDS MORE.

Just stop it!

No, stop it!

You should be chased out with broom for this behaviour at this point!

You have to spend a certain amount, but this is IP law, not litigating the exact damage massive chemical dumping caused over decades.

Companies with no money have caused HUGE PROBLEMS for gigantic entities like Games Workshop before. See GW v CHS. GW lost most of IP claims there. They got $25k out of CHS, and an agreement to stop making certain things, and that's it. At the cost losing tons of IP claims and indirectly causing GW to abandon WHFB in favour of Age of Sigmar.

yes to all of these, have you seen any CRPG in the last 40 years? They all use this, much too late for WotC to claim anything.

Probably even to the same 6 ability scores. Tunnels & Trolls had 5 of them in 1975 and nothing happened, so any chance of WotC doing something now is gone. If you want to be real safe do not make it the exact same 6, just like T&T did not
This is true. The end result, if WotC tries to claim this stuff, will just be a court going "NOPE" to WotC repeatedly.

And money isn't going to change that. You don't get to appeal or spend more money just because you feel like it. The legal system does have rules.
 

Hussar

Legend
Well, I'm not going to claim any deep knowledge of what would constitute forfeit of a right to action in copyright, but the mere fact that YOU got away with something doesn't automatically mean I will! And even if ONE guy didn't cross the line, doesn't mean the NEXT guy didn't. Nor does any of this matter when someone with 1000x more resources to litigate than you is asking the question...

And this is the real issue here, who is going to ACTUALLY dare to license their D&D-like under ORC? Or CC for that matter. Once you are no longer operating under the auspices of the OGL, with its allowance for you to use various WotC-published SRDs worth of terms and game implementation, you are most certainly a lot more likely target for action. This seems, IMHO, even more likely if the 'sort of thing' you are making, a TTRPG, is of the same sort as the original work, another TTRPG.

Remember, TSR stopped GARY GYGAX from publishing an RPG!
Well, considering on the front page of this site, right now, they are talking about WOIN using a new license and not the OGL, I'd say that it's quite possible we will see more and more RPG's doing so. Granted, WOIN isn't a d20 game, it's a d6 dice pool, there isn't much chance that we won't see d20 like games coming out in the near future.
 

mamba

Hero
Well, I'm not going to claim any deep knowledge of what would constitute forfeit of a right to action in copyright, but the mere fact that YOU got away with something doesn't automatically mean I will! And even if ONE guy didn't cross the line, doesn't mean the NEXT guy didn't. Nor does any of this matter when someone with 1000x more resources to litigate than you is asking the question...
I am not saying it is easy to create a clone, I am saying there is an easily identifiable safe zone. Beyond that zone it gets murkier, so tread carefully.

WotC cannot sue everyone out of existence either though, and they know it too, they will pick their battles

And this is the real issue here, who is going to ACTUALLY dare to license their D&D-like under ORC? Or CC for that matter. Once you are no longer operating under the auspices of the OGL, with its allowance for you to use various WotC-published SRDs worth of terms and game implementation, you are most certainly a lot more likely target for action. This seems, IMHO, even more likely if the 'sort of thing' you are making, a TTRPG, is of the same sort as the original work, another TTRPG.
well, Paizo thinks they can do so with PF2, Kobold Press thinks they can navigate it. WotC will watch both closely, so the murky waters might get clearer ;)

Remember, TSR stopped GARY GYGAX from publishing an RPG!
yep, because he could not fight them. Had he had a different name they would not have bothered though, I do not think we have someone with that name recognition now
 

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