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

[pemerton]

And that brings us back to what the parties said and didn't say, did and didn't do, and the acts taken (and not taken) -- especially back in 2008 in relation to PF1 = all with a view to helping the court resolve the contractual ambiguity. We've been down that road already.

I think my textual argument that runs WotC's way probably falls over if any of this stuff is admitted.

 

[bmcdaniel]

I'm hoping to continue this excellent discussion with regards to the new draft OGL 1.2 in this newly posted thread:

OGL - Legal Discussion of OGL 1.2

This thread is to discuss legal issues around OGL 1.2. I hope to attract many of the legal professionals that discussed the OGL 1.0(a) and OGL 2.0.

www.enworld.org

 

[Greg Benage]

Am I correct that if Wizards can always withdraw their offer w/r/t to Licensed Content under OGL 1.2, that means they can always say "no new material," regardless of the terms of the license?

 

[Enrahim2]

Am I correct that if Wizards can always withdraw their offer w/r/t to Licensed Content under OGL 1.2, that means they can always say "no new material," regardless of the terms of the license?

Such a position seem like something Free Software Foundation might have an opinion on.. Under the terms of the proposed licence might be a very different matter.

 

[Greg Benage]

Such a position seem like something Free Software Foundation might have an opinion on.. Under the terms of the proposed licence might be a very different matter.

Yeah. When Wizards says, "...irrevocable (meaning that content licensed under this license can never be withdrawn from the license)," does that mean that the offer is irrevocable? I hope that's what it means...but I'm not sure.

 

[tomBitonti]

On the "authorized" topic, the idea and intention in s.9 according to what Dancey has said is that was simply saying that in the event WotC makes a change in the license later (updates it) the publisher can use any version it prefers of a previously approved OGL license -- but it has to be text that had been authorized by WotC. You don't get to quote a version of the license that appears in a product that includes text that WotC didn't authorize, and then rely on that misprint.

The fact that WotC previously authorized it is what s.9 is focusing on. De-authorization doesn't enter into it. It would be rare indeed that WotC would "update" the license going forward and not end the prior versions of the license going forward, too. But in the case of dealing with material previously released, the licensee gets to pick and choose from multiple versions which were authorized at some point, (regardless of whether they are current now) and rely on it.

Seen through this prism, de-authorization is a weak argument. It looks the same (but isn't the same) as WotC stating its how things are going to be going forward under a new license for new material. WotC can do that for new material - that is beyond doubt, imo.

De-authorization is not a revocation, either. Those terms can mean different things (and in this case, they do).

Hmm, I was meaning to set aside the question of whether de-authorization was possible. My intent was to ask about whether the phrase “you may use” was a right granted by the license. Then, ”use” seems to be an ongoing thing. Once you have a license, you may then and continuing into the future exercise your right to “use” any license to copy and distribute OGL content.
TomB

 

[pemerton]

Am I correct that if Wizards can always withdraw their offer w/r/t to Licensed Content under OGL 1.2, that means they can always say "no new material," regardless of the terms of the license?

I haven't read the terms closely. But in the abstract, I don't see why not.

Yeah. When Wizards says, "...irrevocable (meaning that content licensed under this license can never be withdrawn from the license)," does that mean that the offer is irrevocable? I hope that's what it means...but I'm not sure.

To me it seems to mean that the licence that a party receives from WotC upon entering into the agreement with WotC is irrevocable. How could the offer be irrevocable? What obliges WotC to keep it on foot?

 

[pemerton]

Hmm, I was meaning to set aside the question of whether de-authorization was possible. My intent was to ask about whether the phrase “you may use” was a right granted by the license. Then, ”use” seems to be an ongoing thing. Once you have a license, you may then and continuing into the future exercise your right to “use” any license to copy and distribute OGL content.
TomB

My post 2140 upthread might help you with this.

 

[Aspirinsmurf]

I haven't read the terms closely. But in the abstract, I don't see why not.

To me it seems to mean that the licence that a party receives from WotC upon entering into the agreement with WotC is irrevocable. How could the offer be irrevocable? What obliges WotC to keep it on foot?

Correct me if I'm wrong, but all you're really saying here is that WotC can freely stop circulating their SRDs and thus retract their offer to contract. This changes... nothing? We can yank the contents of their SRDs from someone else's work and incorporate it into our own. Indeed, any other work released under the OGL and containing the contents of the SRDs would be contractually obliged to let us do so.

 

[pemerton]

Correct me if I'm wrong, but all you're really saying here is that WotC can freely stop circulating their SRDs and thus retract their offer to contract. This changes... nothing? We can yank the contents of their SRDs from someone else's work and incorporate it into our own. Indeed, any other work released under the OGL and containing the contents of the SRDs would be contractually obliged to let us do so.

As for the OGL v 1.0a, I don't think this is certain. See my post 2140 upthread.

As for the draft OGL 1.2, I haven't tried to analyse it closely. I do notice that section 5 says the following:

5. YOU CONTROL YOUR CONTENT. You can make your Content available under any terms you choose but you may not change the terms under which we make Our Licensed Content available. . . .

You may permit the use of your Content on any terms you want. However, if any license you offer to your Licensed Work is different from the terms of this license, you must include in the Licensed Work the attribution for Our Licensed Content found in the preamble to the applicable SRD, and make clear that Our Licensed Content included in your Licensed Work is made available on the terms of this license.​

And section 2 says:

In consideration for your compliance with this license, you may copy, use, modify and distribute Our Licensed Content around the world as part of Your Licensed Works.​

So I don't see that there is any power granted to licensees to sub-license. To me it seems that if WotC were to retract its offer to licence than existing licensees would retain their entitlements under section 2. But they would not have any power to licence content pursuant to an offer that WotC has withdrawn.

 

[Aspirinsmurf]

I'm not going to accept new terms, nor do I want to go into business with Hasbro/Wizards going forward. The OGL 1.3 is of no interest to me. I'm asking about the OGL 1.0a.

See this thread for reasons:

 

[Greg Benage]

To me it seems to mean that the licence that a party receives from WotC upon entering into the agreement with WotC is irrevocable. How could the offer be irrevocable? What obliges WotC to keep it on foot?

So is there any way to make an offer in this kind of license irrevocable? I feel like a lot of us have been asking for a kind or irrevocability that really isn't possible in contract law. And I understand there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.

 

[Aspirinsmurf]

So is there any way to make an offer in this kind of license irrevocable? I feel like a lot of us have been asking for a kind or irrevocability that really isn't possible in contract law. And I understand there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.

Yeah. Is the argument here that there is a fatal flaw in this particular license text (or the circumstances)? Or does this line of reasoning suggest that there is a problem with the very notion of a copyleft license to begin with?

Copyleft - Wikipedia

en.wikipedia.org

 

[clearstream]

So is there any way to make an offer in this kind of license irrevocable? I feel like a lot of us have been asking for a kind or irrevocability that really isn't possible in contract law. And I understand there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.

If one can safely create new works using OGC licensed and sub-licensed under the aegis of the OGL1.0, then doesn't the virality of that original structure largely accomplish it?

 

[Greg Benage]

If one can safely create new works using OGC licensed and sub-licensed under the aegis of the OGL1.0, then doesn't the virality of that original structure largely accomplish it?

@pemerton has an argument that it wouldn't, based purely on a textual analysis of 1.0a, though he characterizes it as "not particularly strong, but not absurd either." To a nonlawyer like myself, it certainly would explain the lack of any provision for sublicensing in 1.2.

 

[Aspirinsmurf]

If one can safely create new works using OGC licensed and sub-licensed under the aegis of the OGL1.0, then doesn't the virality of that original structure largely accomplish it?

@pemerton argues that the license text could be interpreted to somehow support a theory that the owner of the copyright to the top dependency can revoke their offer to license that text at-will and thus poison the entire ecosystem from the root.

 

[Greg Benage]

Yeah. Is the argument here that there is a fatal flaw in this particular license text (or the circumstances)? Or does this line of reasoning suggest that there is a problem with the very notion of a copyleft license to begin with?

Copyleft - Wikipedia

en.wikipedia.org

In the 1.2 legal thread, @pemerton writes:

There is no straightforward way for a private party to bind themselves in respect of a gratuitous offer made to all the world. That's the nature of the common law of contract.

As with every legal principle there are nuances etc. I don't immediately see any nuance here.

Which seems to answer my question. And what a banger. It makes me wonder if any publisher actually consulted a lawyer before publishing under this license! I know FFG didn't, but we only published OGL stuff during the bubble period. It was more of a "make hay while the sun shines" approach.

Maybe Paizo did and they knew this and always had a contingency plan in place. And maybe there are nuances, as @permerton says, in the open software copyleft licenses. But man, it makes ya think.

 

[Aspirinsmurf]

This has some unfortunate consequences for a lot of open source-software, some of which is responsible for running a lot of critical infrastructure (unlike the SRDs in the OGL, which are "merely" cultural products). I don't think the reasoning is very sound if this is a consequence of it.

 

[Snarf Zagyg]

Which seems to answer my question. And what a banger. It makes me wonder if any publisher actually consulted a lawyer before publishing under this license! I know FFG didn't, but we only published OGL stuff during the bubble period. It was more of a "make hay while the sun shines" approach.

Maybe Paizo did and they knew this and always had a contingency plan in place. And maybe there are nuances, as @permerton says, in the open software copyleft licenses. But man, it makes ya think.

That's not quite true. It's black-letter law in most jurisdictions (at least in terms on Contract 101) that you bind yourself and the offeror to a unilateral contract offer by fulfilling the requirements of the contract.

Ex.
"I'll pay $50,000.00 to the person who proves the Earth is flat by sailing off the edge."

The person who sails off the edge (completes the task) has bound themselves, and the offeror, to the terms. I think what was being said is that until the requirement is fulfilled, the "gratuitous offer" (unilateral contract) is not binding on an offeree, so even if someone is setting sail, they aren't bound.

 

[Greg Benage]

I think what was being said is that until the requirement is fulfilled, the "gratuitous offer" (unilateral contract) is not binding on an offeree, so even if someone is setting sail, they aren't bound.

I appreciate the clarification, but could you apply what you're saying to the actual case, rather than using a hypothetical? That's not meant as a criticism--I simply can't follow it.

Are you saying that Wizards can withdraw the offer at any time, but as soon as a publisher has published something under the terms of the license, then Wizards is bound to the offer for all time w/r/t that publisher? So once I publish something under 1.2, then I'll be able to publish new material under 1.2 forever?