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

FrogReaver

As long as i get to be the frog
that flies in the face of what a licensor and what a licensee are, and why there even are two terms… to me that just means the FAQ is sloppy, not that it somehow manages to redefine the English language
The license and not just the faq supports this. Distributing OGC makes one a licensee.
 

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FrogReaver

As long as i get to be the frog
According to the FAQ, yes. But not according to the text itself. Arguably, it's a gross simplification of the following interpretation (emphases mine in the following).

From section 3: "Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."

"Using" is defined as to "use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."

"Distribute" is defined as "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute".

Indeed, having "Used" OGC like they this by licensing it, WotC "must affix such a notice to any Open Game Content that [they] Use".

There is then a case that WotC, having licensed OGC according to the license, has accepted the terms and is thus contractually bound to continue doing so. Like Bob Tarantino writes, "open content must remain open for all future users."
That sums it up nicely.

I’d also add that in the license the contributors of the OGC is the licensor. WOTC is not the licensor and cannot be the licensor as it cannot make the offer to use all OGC as it doesn’t have the copyright of all such material.
 

That sums it up nicely.

I’d also add that in the license the contributors of the OGC is the licensor. WOTC is not the licensor and cannot be the licensor as it cannot make the offer to use all OGC as it doesn’t have the copyright of all such material.
Yes. WotC is certainly not the only licensor of OGC, no. There's a bit of a question about whether the Contributors are the licensors collectively or individually, and of course how that would interact with the existence of derived works in the ecosystem downstream. The ability to unilaterally revoke an offer doesn't depend on that nuance, though. That's obviously impossible, and it's not even what WotC is trying to do (they're trying, and rather obviously failing, to abuse their section 9 powers instead). Only @pemerton has really made any argument that there are plausible interpretations of the OGL that would let them unilaterally revoke the offer to contract under the terms of the OGL.
 


FrogReaver

As long as i get to be the frog
By that reading, no one could be a licensor, as no one holds copyright on all OGC. WotC is certainly a licensor with respect to is own copyrighted material that it releases as OGC.
Collectively the contributors do hold all the necessary copyrights. Collectively they are the licensor.
 



FrogReaver

As long as i get to be the frog
Yes. WotC is certainly not the only licensor of OGC, no. There's a bit of a question about whether the Contributors are the licensors collectively or individually, and of course how that would interact with the existence of derived works in the ecosystem downstream. The ability to unilaterally revoke an offer doesn't depend on that nuance, though.
I think it does.

That's obviously impossible, and it's not even what WotC is trying to do (they're trying, and rather obviously failing, to abuse their section 9 powers instead).
That’s how it seems to me as well.

Only @pemerton has really made any argument that there are plausible interpretations of the OGL that would let them unilaterally revoke the offer to contract under the terms of the OGL.
Thus why I started this line with quoting him.
 


pemerton

Legend
According to the FAQ, yes. But not according to the text itself. Arguably, it's a gross simplification of the following interpretation (emphases mine in the following).

From section 3: "Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."

"Using" is defined as to "use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."

"Distribute" is defined as "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute".

Indeed, having "Used" OGC like this by licensing it, WotC "must affix such a notice to any Open Game Content that [they] Use". If they don't, they're in breach. But sublicenses survive terminations for breach. So there's no "putting the genie back in the bottle" if it's already out there.

There is then a case that WotC, having licensed OGC according to the license, has accepted the terms and is thus contractually bound to continue doing so. Like Bob Tarantino writes, "open content must remain open for all future users."

@pemerton might disagree, but I hope he'll tell us why! I suspect this somewhat circular reasoning is unappealing for some reason.
Re the underlined: whose offer are you saying WotC has accepted?
 


pemerton

Legend
Only @pemerton has really made any argument that there are plausible interpretations of the OGL that would let them unilaterally revoke the offer to contract under the terms of the OGL.
No. @S'mon agrees with me on this:

Pemerton is an Australian lawyer and he does know what he's talking about, it's just that the technical point he's been making about offer/acceptance in contract is basically irrelevant to the important point - your bolded text - and even misleading to some people.

So does bmcdaniel:
as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

None of the above is particularly controversial. Its basic U.S. contract law.
As far as I know I'm the only poster to have identified a possible argument that the terms of the contractual grant of the licence oblige WotC to keep the offer on foot in some fashion.
 

FrogReaver

As long as i get to be the frog
When WotC publishes a SRD with a notice of offer to license on the terms of the OGL, who has licensed anything to them such that they are a licensee?
say WOTC creates an SRD 6.1. The contributors of OGC would be granting WOTC a license to use all OGC for distributing(using) this new OGC under the OGL.
 
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Re the underlined: whose offer are you saying WotC has accepted?
That would be their own, which is why the logic is somewhat circular.

But would this be different for anyone else who have contributed an original "SRD" ex nihilo?

As far as I know I'm the only poster to have identified a possible argument that the terms of the contractual grant of the licence oblige WotC to keep the offer on foot in some fashion.
Can you summarize that argument and comment on its strengths and weaknesses as compared to other interpretations?
 

Only @pemerton has really made any argument that there are plausible interpretations of the OGL that would let them unilaterally revoke the offer to contract under the terms of the OGL.
I apologize for this characterization. I meant to say that @pemerton was the only one who clearly articulated that possibility in a way that I was able to understand. There might well be others who agree with it.
 

mamba

Hero
say WOTC creates an SRD 6.1. The contributors of OGC would be granting WOTC a license to use all OGC for distributing(using) this new OGC under the OGL.
that is not how this works, WotC would need to use parts of the 3pp’s OGC to become a licensee, otherwise everyone on this planet is a licensee
 

Enrahim2

Adventurer
that is not how this works, WotC would need to use parts of the 3pp’s OGC to become a licensee, otherwise everyone on this planet is a licensee
And how is everyone on the planet being a licensee absurd? (Given the idea that the open content should be available for everyone on the planet)

(Edit: also worth noting, the interpretation path we are looking at here doesnt require everyone to be licensees as not everyone has actually "received" any OGC, but I think this is unimportant to the question asked)
 

Citizen Mane

The Kajamba Lion
And how is everyone on the planet being a licensee absurd? (Given the idea that the open content should be available for everyone on the planet)

(Edit: also worth noting, the interpretation path we are looking at here doesnt require everyone to be licensees as not everyone has actually "received" any OGC, but I think this is unimportant to the question asked)
The offer of the license is available to everyone on the planet, but they have to accept the offer through use of the OGC (or whatever mechanism the OGL describes) to become a licensee. Until then, they're just potential licensees.
 

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