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

pemerton

Legend
To be clear, I don't know where they find this power to "deauthorize" either, and I certainly don't see where they can "deauthorize" it for the purposes of some works but not others. But this does seem to be what they've latched onto, as distinct from "revocation" of the license.
It's crystal clear that they intend to "revoke" their standing offer, such that - in the future - they will no longer offer to licence any SRD on the terms of the OGL v 1.0/1.0a. As I posted pretty much the day of the first announcement, this is a legal power they clearly enjoy. (At least in respect of the 5e SRD. Given they used the OGL to publish some 3E SRD-derived content, they might be contractually bound to keep their 3E SRD offer on foot, at least to those licensees/licensors. I haven't seen anyone else mention this or try to work out the details.)
 

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pemerton

Legend
ETA: @Steel_Wind's post is #592 in that thread. I'm fairly certain I've interpreted it correctly.
For me, that's my post:

My view is that a draft licence is not a licence. WotC and its agents actually have to have intended to issue a licence, not just promulgate a draft. Like a marriage in a TV soap opera is not a marriage, even if all the magic words are said and even if the actor playing the celebrant happens to be a licensed celebrant in real life.
Can you quote?

EDIT: I've worked out you're talking about that thread, not this thread - apologies for the confusion! But I'm not sure which thread is that thread.
 

If WotC now revokes its standing offer to licence the text in the SRD that it has identified as OGL, does that affect the proper construction of the conferral of the permission conferred by section 4? Eg does "the OGC" mean "the OGC that is found in the SRD and that the contributor continues to offer to licensees under the terms of the OGL"?
I think this is the argument you're referring to, but I honestly don't think I'm tracking. How much work is "standing" doing in your first sentence? Is the idea that previous acceptances of the offer would be unaffected by revocation of the "standing offer"?

ETA: Reading your #2,101 in THIS thread, that does seem to be what you're saying. Thanks.
 


I've set out the argument - or at least one argument - just upthread. It turns on the need to interpret the ambiguous phrase "the Open Game Content" that occurs in section 4.

That was about sub-licensing. What I'm referring to now is direct licenses. I'm referring to the fact that WotC cannot choose to legacy authorize one part of the license with party A (the right to use Open Game Content in party A's Product X) while also not also authorizing the different part of the same license to Party A (the right of Party A to re-use the Open Game Content from Party A's own Product X that WotC have explicitly said they authorized that Party A could explicitly use).

Particularly if all of the OGC that is in the SRD IS all of the OGC that appears in Product X.

Product X, being of course, one of the digital versions of the entire SRD released by a 3PP.

joe b.
 

pemerton

Legend
I think this is the argument you're referring to, but I honestly don't think I'm tracking. How much work is "standing" doing in your first sentence? Is the idea that previous acceptances of the offer would be unaffected by revocation of the "standing offer"?
Rather than answer your questions directly - as I don't think I quite follow them - I'll try and restate my thinking on this. And at the risk of tedium, I reiterate that it is not intended to be definitive in any way, but is an idea I've come up with, based on some thoughts I posted on one of the threads (probably this one) a couple of days ago, and that seems consistent with WotC's latest announcement of its plans.

First, everyone agrees that WotC can retract/revoke/bring to an end its standing offer to the world to licence the OGC in its SRD on the terms of the OGL v 1.0a. (As per my post just upthread, I put to one side arguments about it being bound in respect of the 3E SRD by its own use of others' OGC in 3E-era publications. But I will say in passing I'm not surprised that WotC stopped doing that pretty quick-smart.)

Second, the puzzle everyone is interested in is - once WotC make it clear that they are doing that - what power do existing licensees enjoy to continue sub-licensing WotC's OGC? @S'mon, for instance, has consistently - and not just over the past few weeks but for at least a decade - argued that the sub-licensees retain a full power to sub-license, making the practical effect of WotC's retraction of its offer nil.

Up until I read @bmcdaniel's post I agreed with him. But that post prompted me to reduce my certainty. And now I have come up with the following argument for WotC that I think is not hopeless. It starts with the terms of section 4:

In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.​

The power to sub-license flows from the meaning of "Use", which includes (per the various nesting definitions in section 1):

use, reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;, copy, edit, format, modify, translate and otherwise create copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted of Open Game Content.​

(The syntax there is a little bit tortured, but I don't need to clean it up to express my ideas.)

The subject matter of that power is the Open Gaming Content that is referred to in section 4. What is that?

One interpretation is the following: that the phrase "the Open Gaming Content" in section 4 has the same meaning as it does in section 3, which reads:

By Using the Open Game Content You indicate Your acceptance of the terms of this License.​

In that case, the permissions and powers conferred by section 4 are confined to OGC that is actually used by the licensee. This would mean that to get access to all of the SRD, following a retraction of offer by WotC, would require using a site like the hypertext SRD. Now WotC may take the view that, given that they contribute no OGC of their own (as far as I know) they have not given consideration and hence do no enjoy an irrevocable licence. (I don't know whether the promises made in respect of product identity would be sufficient consideration in themselves - I think they probably are, but I don't know US contract law very well.)

But moving on.

Another interpretation of the key phrase in section 4 is that it refers to "the Open Gaming Content in the licensed work" - which is to say, all the OGC in the SRD. In this case, any existing licensee would have access to all the SRD OGC even once the offer is retracted by WotC.

But another interpretation of that phrase is that it refers to "the Open Gaming Content in the licensed work, so long as we continue to offer to license that work on the terms of this licence". That is not the most natural interpretation, but it is one that might be argued for by pointing to contextual considerations (such as the gratuitous nature of WotC's offer). For licensees who have contractual obligations to make those standing offers (ie all the licensees who have made that promise as their consideration in taking up the licence) that interpretation is not practically different from the one in the previous paragraph. But for WotC it obviously is, as WotC has no contractual obligation to keep its offer on foot.

On this candidate interpretation, once the offer is retracted the permission to use, including by way of sub-licensing, comes to an end. Existing published works would not be copyright violations, as that use occurred when the permission was still on foot. But new published works (whether by existing licensees or putative new sub-licensees) would not be licensed ones.
 

pemerton

Legend
That was about sub-licensing. What I'm referring to now is direct licenses. I'm referring to the fact that WotC cannot choose to legacy authorize one part of the license with party A (the right to use Open Game Content in party A's Product X) while also not also authorizing the different part of the same license to Party A (the right of Party A to re-use the Open Game Content from Party A's own Product X that WotC have explicitly said they authorized that Party A could explicitly use).

Particularly if all of the OGC that is in the SRD IS all of the OGC that appears in Product X.

Product X, being of course, one of the digital versions of the entire SRD released by a 3PP.
See my post just upthread of this one.
 


pemerton

Legend
The consideration issue is key, looks like.
Yes, that matters to the hypertext SRDers. But I think that's probably a sideshow.

The key issue, once WotC accept that the licence remains on foot, is what is the scope of the permissions and powers conferred by section 4. And to me that seems to turn on the interpretation of the phrase the Open Gaming Content. (The term "use" is also important in that section, but its defined meaning seems so broad that I can't see how any of this is going to turn on its interpretation - except to the extent that its broad meaning helps provide context for making sense of the phrase "the OGC".)
 

Jerik

Explorer
Okay, this is a tangent, but something I just noticed:
use, reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;, copy, edit, format, modify, translate and otherwise create copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted of Open Game Content.

"Potation"? Doesn't that just mean "drinking"? I thought maybe it had a second meaning I was unaware of, but I checked several dictionaries, including the online Merriam-Webster dictionary, the Oxford English Dictionary, and Wiktionary, and none of them listed another meaning that wasn't related to drinking. How do you... drink Open Game Content? Does "potation" have some other special meaning in legalese that none of these dictionaries mention? Or if not, what on Earth is that word doing there?
 

pemerton

Legend
The new one: WotC Talks OGL...Again!
OK, I read that post. It seems consistent with my posts just above. @Steel_Wind is not using "de-authorization" as a term of art, as best I read his post. And he doesn't actually set out an argument as to how WotC might achieve what it wants to achieve - he just states the result.

The interpretive argument I've set out is the best one I know of that actually produces, in a legally reasoned manner, the result that WotC appears to be aspiring to.

(Of course I haven't considered the extent to which matters that sit outside the licence - like the FAQ and other conduct by WotC and its officers - might bear upon the interpretive questions. That's part of why I do not suggest that my argument is sound, or even likely - just that it seems to me not hopeless.)
 

ETA: In answer to the "potation" question. I should have quoted.
brian_lewis.jpg
 

pemerton

Legend
Okay, this is a tangent, but something I just noticed:


"Potation"? Doesn't that just mean "drinking"? I thought maybe it had a second meaning I was unaware of, but I checked several dictionaries, including the online Merriam-Webster dictionary, the Oxford English Dictionary, and Wiktionary, and none of them listed another meaning that wasn't related to drinking. How do you... drink Open Game Content? Does "potation" have some other special meaning in legalese that none of these dictionaries mention? Or if not, what on Earth is that word doing there?
I think the general view is that it's a typo for "portation".
 

Jerik

Explorer
ETA: In answer to the "potation" question. I should have quoted.
brian_lewis.jpg
OK, I thought it must have been addressed before somewhere; I just hadn't seen it. But as I said, I consulted several dictionaries (including the Oxford English Dictionary, which is pretty darn exhaustive) and none of them listed that meaning.

I think the general view is that it's a typo for "portation".
Ah, that makes more sense. (Or rather, that makes the quote from Ryan Dancey make more sense.) That would fit the definition given in Ryan Dancey's quote; they apparently just left out a letter by mistake. So anyway, I guess strictly by the words of the license, if you try drinking any Open Game Content you're in trouble...

Anyway, sorry for the tangent. Carry on.
 
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yeah, that was horrendously decided by subject illiterate judges. No case is so bulletproof that a moron in a robe cannot have you snatch defeat from the jaws of victory. Quite frankly, if this is the law and the judge ruled correctly, the law needs changing yesterday.
Right, and that was what I was essentially arguing. Anyone who thinks they have an open-and-shut legally airtight case in which copyright, or even contract law is involved, that person is a fool. Couple that with the fact that most foolish people think they're right, and are often not wise enough to be able to gauge in a reasonable rational way, and you have the makings of an epic beatdown. Corporations OTOH TEND to be pretty rational, certainly in cost/benefit analysis terms. Not always right, by any means, but there are VERY few cases where a multi-billion dollar enterprise went off the wall and sued someone just because they "thought they were right."
 



masdog

Explorer
Don't shoot the messenger!

Though it's amusing to imagine the conversation:

Ryan Dancey: Hey, what the hell is "potation"? Is that a typo? We just released this into the wild!

Brian Lewis (squinting at text): Eh, no, not a typo. Legal term of art. Don't worry about it.
WotC/Hasbro Lawyers: We found our loophole, the whole contract is invalid. /kidding
 

Snarf Zagyg

Notorious Liquefactionist
Don't shoot the messenger!

Though it's amusing to imagine the conversation:

Ryan Dancey: Hey, what the hell is "potation"? Is that a typo? We just released this into the wild!

Brian Lewis (squinting at text): Eh, no, not a typo. Legal term of art. Don't worry about it.
i can tell you what happened.

Brian Lewis borrowed the definitions section from a software open license. He ran it through a spellchecker. The spellchecker changed the word to potation.

And no one actually understood the original term and was able to catch it. Happens a lot.

 

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