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

S'mon

Legend
On second thought, the offer is unreasonable given the current situation. As far as I can see the only thing they offer, that the offeree didn't already have the rights to was the creator badge - which might be hard to argue reasonably could be worth the amount of rights they would be giving away..

Whether something is a bad bargain does not matter in Contract law. If you genuinely want to agree to buy my shiny beads for £1 million, you are free to do so.
 

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pemerton

Legend
by not listing any other way
(1) Failure to list X is not a clear statement that not X. Perhaps it implies not-X, but implication and clear statement are contrasting notions, not synonyms.

(2) You are making very simplistic assertions about legal interpretation. I don't think they're helpful. It may be that the better view is that section 13 states the only way that the OGL v 1.0/1.0a can be terminated; but that would be a conclusion reached by a process of interpretation. It is not clearly stated.

Ditto to @reelo.
 

bmcdaniel

Adventurer
Okay, whichever one of you is a lawyer, please explain why this doesn’t qualify as acceptance by performance under U.S. contract law.

It is difficult to give a hard doctrinal answer to this question. As a practical matter, the question does not come up frequently, so is not covered by the standard treatises or leading cases. I'd be surprised if there is not some caselaw on the subject, but precisely because it is a rare question, the caselaw will be obscure. This is what I meant when I remarked in my prior post that it is "likely that the doctrinal basis is under-theorized as a matter of law."

However (as @Steel_Wind would be sure to point out), no court is going to allow anything to be acceptance by performance. For example, no court is going to enforce the agreement "You agree to give me $1 million. You accept this agreement by breathing" based on the claim that somebody accepted it by breathing. The fact that the doctrinal basis for this limitation is uncertain or under-specified does not mean that the limit does not exist. As @Steel_Wind has noted, contract law does not attempt to be comprehensive; it attempts to settle only those claims that are actually brought before the court.

(If you doubt this, I would encourage you to post the following offer and agreement on your website: "WOTC, pursuant to this agreement, you agree to permanently transfer to me all intellectual property related to D&D for $1. WOTC may accept this offer by using the word 'fantasy' in any communication.")

Furthermore, as a practical matter, the question is even less relevant than the above implies. Offer and acceptance are questions of fact that are analyzed by a court to determine if there was the mutual assent necessary to form an agreement. In court, vague and ambiguous facts are analyzed afterwards to determine whether there was mutual assent by virtue of acceptance of an offer. However, on a prospective basis, it is relatively easy for a person to create facts showing that the person does not accept the offer, even if their activities would otherwise suggest they do accept, e.g. by putting the offeror on notice that the offer is not accepted.
----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
 

On second thought, the offer is unreasonable given the current situation. As far as I can see the only thing they offer, that the offeree didn't already have the rights to was the creator badge - which might be hard to argue reasonably could be worth the amount of rights they would be giving away..
I think that's a separate issue. You can accept an "unreasonable" offer. The question here is whether it's reasonable that your performance of the action operated as an acceptance of the offer.

But this has gotten way outside my area of expertise, even as a proud dropout from the University of Texas School of Law. I'm going to accept that the lawyers still think it's weak and thank my lucky stars I don't have a dog in the hunt.
 

pemerton

Legend
Then just like I asked about irrevocable, if a license has a termination clause like the one in the OGL, what are the key common law cases that decided that a licensor can terminate a license arbitrarily by means other than the termination clause.
This was discussed extensively upthread, including in some posts that replied to you. You are looking for mechanical or "off the shelf" answers that are not available.

Here is a link to one of my posts discussing this; @mamba and @reelo may also find it interesting: Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
 

Enrahim2

Adventurer
These kind of Mafia tactics don't work in practice. You have to show the other side did voluntarily accept your offer, not that they 'did the thing', if 'the thing' is the kind of thing they'd normally do anyway!
Yes, make sense. Or maybe more to the point that very clearly distinguishes it from the clicking OK - case: This would be performing an action you are legally allowed to do, and would be highly "inconvenient" to not do.
 

You may also have a legal relationship with WotC, if your work contains material that would infringe WotC's copyrights except for the fact that Matt Finch sub-licensed to you under the OGL v 1.0/1.0a.

That's a feature, not a bug, of the v 1.0/10.a ecology: it creates an intricate network of legal relationships (powers and permissions) that underpin it.
Except it wasn't Wizards who transferred me the rights but rather Matt. I get that it is their copyrighted material. Matt had perpetual permission to use and sublicense that content. Wizard revokes the OGL 1.0a for their content and terminates the license. That means Section 13 comes into play. Matt loses the right at the very least to make any new content based on the formerly open content of Wizards.

However, in accordance with Section 13 it doesn't terminate the sublicense that I gained from Matt. I received the right to use Wizard content from Matt. Which Matt can revoke if Wizard's theory is upheld. But in accordance with section 13, Matt sublicense is still alive.

Look I get what you said earlier and I thought we all agree that the issue of sublicensing is unsettled. I can how your interpretation can hold. But there is that pesky independent sentence in Section 13 mucking it up.

Furthermore , while hairs are being split. ;) It occurred to me that if you look at Section 9.

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

It is in two parts
Part 1
Wizards or its designated Agents may publish updated versions of this License.

Part 2
You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

They are not dependent clauses according to the rules of grammar.

So the argument can be made that at one time Matt was authorized to grant me the right to use not only his original content but Wizard's content as well. While Wizards can withdraw their own authorization they can not withdraw Matt's authorization.

In addition, the OGL says this about the term distribute.

(c) "Distribute" means to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;
So to me, the plain meaning of this means that anytime I read distribute, I can consider it to encapsulate licensing as well. Since Matt Finch was authorized by Wizard to grant a sublicense to their content in 2009. That if Wizard's theory is upheld, only Matt can deauthorize that license grant to myself. As Matt's license to me exists independently of Wizard's license to Matt.

Again I get this is all wrapped up in ambiguity and the law is not really equipped to deal with altruistic licenses like the OGL. That this interpretation like any other would have to fought out in the courts at great expense.
 

pemerton

Legend
This is probably a correct reading, but I feel WoTC go out of their way to obfuscate this fact.
Yes. I think this point has been well-made.

But I also think this thread is more helpful if attempts to reduce the obfuscation, rather than replicate it and disseminate it further.
 

S'mon

Legend
It is difficult to give a hard doctrinal answer to this question. As a practical matter, the question does not come up frequently

Just trying to think of somewhere it does come up - the rules on Inertia Selling (now illegal to consumers in EU & UK). If you post unsolicited goods to my house, you cannot specify that my failure to post the goods back to you constitutes my acceptance of an offer to sell me the goods.
 

pemerton

Legend
My only concern with the interpretation the licence operates on an opt-in basis is the mention of pantomimes in the covered works. Could this be construed to include private games? In other words, is there a chance that using OGL v1.1 materials in a game could equal acceptance by performance? Maybe I'm just being paranoid here.
The commentary says that pantomimes are excluded from covered works. In other words, if you perform an copyright- or trademark-infringing pantomime, you cannot defend yourself against WotC's claim of infringement by asserting that you had become a party to the OGL v 1.1.

As far as the use of materials in gameplay is concerned, if you're really worried make sure you use non-licensable content like WotC's published rulebooks.
 

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