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

pemerton

Legend
@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.
That's not an accurate description of the argument.

It's not in dispute that WotC can revoke their licence to offer at any time.

The question is how - if at all - this affects the interpretation of the phrase the Open Game Content as that occurs in section 4 of the OGL v 1.0/1.0a. The phrase needs interpretation. Its interpretation is in my view not obvious, because of the interplay between it, the same phrase in section 3, and the phrase any Open Game Content in section 2. As far as I know, I'm the only person in this discussion to have explored this issue.

So long as WotC's offer remains on foot the question is of only academic interest, because any licensee can always go back to the SRD and draw on more of its OGC that they haven't yet used. But as soon as the offer is withdrawn - which, to reiterate, no one disputes is within WotC's legal power - then the interpretation matters. Because until the interpretive question is settled, we don't know what the subject matter of the grant in section 4 is, and hence what power if any licensees retain to sub-licence in the event of a withdrawal by WotC of its offer.

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there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.
As to your point about risk, I posted something like it - I guess with more of an abstract legal focus than a commercial one - about a decade ago on these boards. So I agree. At that time I didn't try to work through the interpretive issue described above - I don't know if I even thought of the issue, and in the intervening 10 years I have worked pretty hard on theories of interpretation (particularly involving words like "any" and "the" as they appear in this sort of instrument - these give rise to interesting interpretive complexities) and so can probably now think of things I couldn't have worked through so clearly back then.

As to your first question: if the offer is made pursuant to contract that makes a difference. Hence why I think the 3E-era SRD may be in a different situation, at least vis-a-vis WW and Green Ronin (I believe those are the right parties), as WotC used their OGC in some of its works. (It's no surprise to me that WotC stopped doing this. It seems commercially foolish to do this sort of thing and hence become just another member of the network rather than a source from which all licensing flows in one direction (ie outwards).)

You could also draft in such a way that the power of sub-licensing isn't hostage to a withdrawal of the licence. I'm not a drafter - my expertise is in interpretation - and so I haven't tried to work out what that might look like. But a starting point would be eliminating the possibility that the licenced content (ie the OGC) consists of content still subject to an offer to license it (ie, on one reading, any OGC that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License). I mean, even changing that verb "contains" to "contained at the time of licensing" might be enough.

It seems fairly clear to me that, when the OGL was drafted, promulgated, and taken up by 3PPs, no one on either side of the agreement contemplated in any practical sense WotC withdrawing its offer to license. Even the stuff on the FAQ about revocation I think is more focused on WotC trying to revoke issued licences rather than WotC withdrawing its standing offer. (At least that's my recollection. I'm happy to be corrected if my recollection is false - I haven't gone back to the FAQ text to double check.)
 

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Snarf Zagyg

Notorious Liquefactionist
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?

I'd rather not go too far into the details. I'd just mention that, again, jurisdiction matters. When people from other countries (some of whom are not attorneys) start pontinficating about the common law, especially w/r/t a license that has a governing law provision ... I just kind of pass on by.

I was just clarifying that since it stood out.
 

pemerton

Legend
It makes me wonder if any publisher actually consulted a lawyer before publishing under this license! I know FFG didn't
OK, that's surprising to me!

Although, my impression is that at least for some of the smaller publishers, the legal advice they have sought has - understandably - been from smaller firms/individual practitioners, rather than big commercial firms which would have the expertise on hand to really pull the thing apart and work out how it ticks.

In Australia legal advice of the sort some posters on these threads are providing would be billed at $500 to $1000 per hour. Maybe more. I assume it's no cheaper in the US.
 


tomBitonti

Adventurer
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.
Answering a question with a question: can the offer be embedded in published material? Is it possible to un-publish something?
TomB
 

pemerton

Legend
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?
Once you accept the offer you have a binding contract. The duration of your rights under the contract will depend on its terms. OGL 1.2 set out some conditions under which it comes to an end.

My argument above - which I think is plausible, but no more than that, on a purely textual reading of the OGL v 1.0a (ie having no regard to extrinsic evidence of the intentions of the parties based on other things they said and did) - that what is licensed might change if WotC withdraws its offer is not based on any view about WotC's power to terminate a contract. Rather, it's based on interpreting the subject matter of the contractual grant - that is, on the meaning of the Open Game Content as that phrase appears in section 4.

One response to that argument, from a 3PP, might be that the effect of the contract is to preclude WotC withdrawing the offer made to them - not for the more obvious reason that applies to WW and GR (ie that WotC has used their OGC), but on the basis that the contractual promises made by the 3PP (eg to refrain from using WotC's product identity) bind WotC to keep their OGC available to that 3PP.

To speak a bit loosely, the response tries to make section 4 "dominate" over section 2; whereas my argument for WotC tries to make the interpretation of section 4 subordinate to section 2.

I know some techniques in the Australian law of statutory interpretation to help resolve this sort of question about which provision dominates or is subordinate relative to another. I don't know the relevant techniques in US contract law, though. There are important differences between, as well as some similarities in, interpreting a contract and interpreting a statute.

To reiterate: none of this is put forward as definitive. But I do think some posters are unduly confident in what they assert is the legal meaning, operation and effect of the OGL v 1.0a.
 



Nylanfs

Adventurer
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. :D
Clark Peterson, was literally the first publisher to use the OGL. And he was instrumental in the ogf-l discussions.
 


Clark Peterson, was literally the first publisher to use the OGL. And he was instrumental in the ogf-l discussions.
Yeah, criminal lawyer. I don't know if they consulted a commercial firm. I kind of assume someone must have. In any case, I can say with near certainty that everyone's understanding of the license at the time (including representatives at Wizards of the Coast) was not that the offer could be withdrawn at any time as a basic principle of contract law. I think Ryan's commentary during this fiasco backs that up pretty conclusively.
 


pemerton

Legend
Yeah, criminal lawyer. I don't know if they consulted a commercial firm. I kind of assume someone must have. In any case, I can say with near certainty that everyone's understanding of the license at the time (including representatives at Wizards of the Coast) was not that the offer could be withdrawn at any time as a basic principle of contract law. I think Ryan's commentary during this fiasco backs that up pretty conclusively.
I can't comment on Dancey. I know that throughout the lifetime of the OGL there has been a lot of discussion that has not taken seriously its status as the terms of a contractual offer/contractual agreement. I did a quick search of my own posts (keyword: OSRIC; user: pemerton) and saw the first thread I took part in, where this issues manifested, was in 2008 about the GSL.

I think, to the extent that the offer issue was considered, it was assumed - and perhaps correctly (see eg @S'mon's views on this) - that an enduring power to sub-license would make the withdrawal of WotC's offer irrelevant.
 


mamba

Hero
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.
no, the offer is still very much revocable
 

mamba

Hero
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
supposedly by making it fully irrevocable, at least some layer used that term


"WotC needs to address the remaining issues above (especially inserting full irrevocability and express “royalty free” language into Section 2)"
 


pemerton

Legend
supposedly by making it fully irrevocable, at least some layer used that term


"WotC needs to address the remaining issues above (especially inserting full irrevocability and express “royalty free” language into Section 2)"
They are not talking about the offer. They are talking about the terms of the licence for someone who becomes a party to the contract.

My question is can we prevent this for 1.2, because I see no reason to even bother if we cannot
I think that, before anyone starts deciding whether or not to bother, it's worth asking what legal result are you trying to achieve?

For instance, a licence agreement which, once entered into, (i) granted a licensee permission to use all of the content in the licensed work (not just the content that the licensee uses in the course of becoming a party), and (ii) made it clear that the permission to use included a permission to sub-license even if the offer to enter into new licences is withdrawn, would seem to do what everyone wants.
 

Thomas Shey

Legend
For instance, a licence agreement which, once entered into, (i) granted a licensee permission to use all of the content in the licensed work (not just the content that the licensee uses in the course of becoming a party), and (ii) made it clear that the permission to use included a permission to sub-license even if the offer to enter into new licences is withdrawn, would seem to do what everyone wants.

I maintain that as long as the morals clause is still present, it doesn't matter what else the contract says; they still have an ability to pull the plug at any time, and their reasoning is a black box that cannot be addressed. As someone else said, walking into that beartrap is a fool's choice.
 

Enrahim2

Explorer
I think, to the extent that the offer issue was considered, it was assumed - and perhaps correctly (see eg @S'mon's views on this) - that an enduring power to sub-license would make the withdrawal of WotC's offer irrelevant.
Assuming well established open source schemes do not have this withdrawal of offer issue - what mechanism do they have to prevent that? Is it reliance on this assumption, or might there be something else, like formulation in a way that do not place it into the domain of contract law? If it indeed is this mechanism, it seem like a reasonable assumption that this would hold, given the stated intention of the project. If there however is a (conscious) departure from the state of art with regard to mechanisms for ensuring permanent availability, I agree this would be a very risky assumption.
 

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