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

[Prime_Evil]

Re your bolded sentence - only if you are in an agreement with WotC. Mongoose cannot license WotC's copyrighted licence text to you. In that case, you are relying on some other express or implicit permission granted by WotC to use their copyrighted licence text for your purposes.

Don't sections 2 and 8 of the OGL v1.0a convey a right to reproduce the text of the licence when using the licence? It would have been impossible for anyone to comply with the terms of that licence if that were not the case.

 

[pemerton]

Besides, if the various parties feels it's unfair, then all they need to do is bring a case against WoTC to prove .... .

This probably isn't right, which is why I'm replying to it.

If a 3PP who is currently a party to a licence agreement with WotC in terms of the OGL v 1.0a wants to continue to rely on their contractual rights, they don't need to bring a case against WotC to prove anything. All they have to do is keep publishing.

If WotC commences action against them for copyright infringement, then that party would plead their contract in defence. As has been discussed upthread, that may be expensive - even prohibitively so.

On the other hand, if WotC does not commence - eg because it recognises that it would lose on the merits and doesn't want to open up the door to that possibility - the publisher can just keep publishing.

To be clear, this post is not attempting to give anyone legal or commercial advice. The point is that, in a common law system (and I would guess civil law systems also), a person who has the benefit of a contractual right does not need to go to court to seek a declaration of right in order to lawfully act in reliance upon their right.

 

[Garthanos]

"I have not been able to find any games mechanics cases on RPGs." --> I remember hearing about TSR making rpg patent attempt cases that failed... this should not be so hard to find. IIRC -> The mechanics were however duplicable in many prior other games and dice used for war games simulating combat were prior art from Ancient Greece or Rome.

 

[Prime_Evil]

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.

Agreed. This thread is very interesting apart from the implications for the RPG industry.

 

[bmcdaniel]

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.

Concur. Silence/inaction is a fact pattern that comes up frequently enough that there is both caselaw and statutory enactments that address it. Under the common law of contracts silence or failure to act usually cannot be grounds for acceptance of an offer. E.g. "Failure to respond to this communication by December 31 constitutes acceptance" will generally not work. However, there are some cases to the contrary that allow acceptance to be implied from inaction, particularly if there is a history of dealings between the parties. Furthermore there are some areas of law that indicate silence may be acceptance. For example, under the Uniform Commercial Code (i.e. the law that governs relationships between commercial merchants that deal in goods), acceptance may sometimes be inferred from silence.

In any event, it all goes to show that acceptance of an offer may be a highly fact-contingent analysis. But often it is not, e.g. a signed written agreement or an express rejection of an offer leaves little room for other facts.

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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.

 

[pemerton]

Don't sections 2 and 8 of the OGL v1.0a convey a right to reproduce the text of the licence when using the licence? It would have been impossible for anyone to comply with the terms of that licence if that were not the case.

You are trying to read it as a statute! (I know that's becoming my mantra. But it really is a barrier to understanding the legal situation when people do this.)

The OGL v 1.0/1.0a, as a bit of text posted by WotC and Ryan Dancey on various websites, has no legal effect. WotC is not a legislator, and cannot create general legal obligations nor confer general legal permissions.

WotC, as a private party (just like the rest of us), can enter into private law agreements that impose contractual (and other private law) obligations and confer contractual (and other private law) permissions.

So when WotC enters into a licensing agreement with X, on the terms stated in the OGL, then of necessity it has also authorised them to reproduce the copyrighted text of the OGL - because otherwise X would not be able to fulfil the agreement that WotC and X have made between themselves. The OGL also permits X to transfer this authorisation down the chain of sub-licenses - and this is a permission that WotC have conferred on X by entering into the agreement with them.

But now, if you choose to enter into an agreement with Mongoose and Jason Kemp, whose terms are those of the OGL, you do not gain any express permission from WotC to use their copyrighted text setting out those terms. Your contract with those other parties does not bind WotC. You will need to find some other basis for arguing that WotC has nevertheless permitted you to use their copyrighted text. I've made some suggestions upthread as to what that basis might be.

 

[Steel_Wind]

The court will typically go by "Would a reasonable person think you had accepted", rather than attempting to enquire what was really in your heart.

So-called software wrapper agreements are the subject matter of legislation in many jurisdictions (especially in the USA). For consumers, to purchase the software which indicates on the box (or the webpage) that it is subject to a license agreement -- you are essentially caught by a contract you never read or had the chance to read. Otherwise, if you decline, you can return the software for a full refund.

If it sounds like flim-flammery when it comes to contract formation that's largely because it is.

 

[pemerton]

The assertion that the OGL v1.0a is no longer an authorised licence is made several times. But it is unclear whether this is dependent on the "you agree to the terms of this agreement" in the preamble. I suspect it does, but they are trying to give the impression it doesn't.

Their claim seems to be that performance under the OGL v.1.0a also indicates acceptance of the terms of the OGL v1.1, at least for material derived from v5.1 of the SRD. I have no idea whether you can claim that exercising your rights under an existing contract indicates acceptance of the terms of a second contract which supersedes the first one.

But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?

It does seem to me that sending these packets directly to the publisher wasn't just a matter of convenience for them. "We told them exactly what action would trigger acceptance, they knew it, they did the thing, and now they want to claim they weren't accepting the offer?"

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

There have been good replies about this from @S'mon and @bmcdaniel.

Some additional thoughts:

Consider an existing party, X, who has an existing licence agreement with WotC on the terms set out in the OGL v 1.0a. Under that agreement, X has permissions to reproduce OGC found in the SRD.

Now WotC have promulgated a new instrument - OGL v 1.1 - which says (more or less) that by reproducing anything in the SRD you are agreeing to be bound by this new instrument.

From the point of view of X, WotC is attempting to vary the terms of their existing licence agreement. And is, in effect, purporting to say that X's continued exercise of their rights under the existing agreement constitutes an acceptance of the variation of terms.

It seems to me, therefore, that it should be sufficient for X to protect their current position that they make plain to WotC that they don't accept that variation - eg by sending a polite note stating that they intend to continue exercising their rights under the OGL v 1.0/1.0a and not do accept the offer to vary the terms of the agreement to those set out in OGL v 1.1.

WotC does not seem to me to have any power to unilaterally vary the terms of its existing licence agreement with X.

(A somewhat parallel case: I recently took delivery of a household appliance I had purchased. Affixed to the appliance was a note saying that if I didn't complain within 48 hours, I accepted that the delivered appliance was in satisfactory condition. Before the 48 hours had expired I sent an email to the vendor telling them that I had read their note, that I was not going to have my professional installer doing the job within 48 hours, that I was not able myself to ascertain the condition of the appliance, and that despite their note I reserved all my rights.)

 

[Prime_Evil]

(A somewhat parallel case: I recently took delivery of a household appliance I had purchased. Affixed to the appliance was a note saying that if I didn't complain within 48 hours, I accepted that the delivered appliance was in satisfactory condition. Before the 48 hours had expired I sent an email to the vendor telling them that I had read their note, that I was not going to have my professional installer doing the job within 48 hours, that I was not able myself to ascertain the condition of the appliance, and that despite their note I reserved all my rights.)

I bet you confused the heck out of somebody in the company with that note!

 

[pemerton]

I bet you confused the heck out of somebody in the company with that note!

I don't even know if a reply came back (the email actually went from my partner's account, and I haven't asked her).

For me, the purpose is simple: if, when the plumber is finally available, there does turn out to be a problem then when we get into an argument with the vendor or even end up in a consumer tribunal I will be able to adduce my email in response to their purported reliance on their note.

Obviously I very much hope it won't come to that even if there is a problem! But a few minutes to send an email seemed a reasonable step in the context of a fairly expensive appliance.