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

[FrogReaver]

Does it matter? It directly refutes your assertions that WotC has to license to itself through the OGL 1.0a when it uses the content that it owns.

No it doesn’t refute this claim. My claim is not that they are licensing themselves content. It’s that they are licensing all OGC when they define content they own as OGC and use that content with the attached notice and OGL license. (Distributing is included in ‘use’)

 

[FrogReaver]

Ok, one more time.

It is not possible for WotC to make a license with itself. Or, rather, any license that it did make with itself is 100% unenforceable.

Put it another way. Suppose WotC printed a book with an OGL that was 100% in violation of the terms of the OGL. They use all sorts of WotC IP in the book as well as making multiple mistakes in their OGL declaration.

So what? Who is going to sue them? You? Me? No one can enforce an agreement that WotC is making with itself. All this circular logic about WotC being a licensee is ludicrous. They are the LICENSOR. You cannot be both. The OGL is not a licensor. It is a license. It is an agreement between WotC and whoever ends up down the chain of OGL declarations. It is never an agreement with itself. The SRD is not derivative of anything. It is what all OGC is derived FROM.

But, yes, it is impossible for "you" to include WotC.

It’s not because the contributors of OGC is a reference to all contributors. By using OGC as use is defined in the OGL, WOTC becomes a licensee to all ‘the contributors’ of OGC. Using OGC is how that offer is accepted.

Your bringing assumptions into my position that don’t actually exist in it.

 

[Maxperson]

None of that answers the question I asked. Like not even remotely.

You've been claiming that WotC becomes a licensee through the OGL when it uses anything in the SRD. What that post said directly refutes that. It is not licensing content to itself when it uses the property that it owns, which includes the SRD.

 

[FrogReaver]

You've been claiming that WotC becomes a licensee through the OGL when it uses anything in the SRD. What that post said directly refutes that. It is not licensing content to itself when it uses the property that it owns, which includes the SRD.

No it doesn’t. It’s not referring to the same argument I am making. Please try to understand my words. If you don’t understand please ask.

 

[Maxperson]

No it doesn’t refute this claim. My claim is not that they are licensing themselves content. It’s that they are licensing all OGC when they define content they own as OGC and use that content with the attached notice and OGL license. (Distributing is included in ‘use’)

Okay, but when have they ever used the content with the attached notice or OGL license. Simple distribution doesn't do it. They own it and can distribute it outside of the license they created for everyone else.

 

[Aspirinsmurf]

Okay, but when have they ever used the content with the attached notice or OGL license. Simple distribution doesn't do it.

They've certainly distributed some SRDs with that notice and with that license. They could cease to do so at any time though.

 

[FrogReaver]

Okay, but when have they ever used the content with the attached notice or OGL license. Simple distribution doesn't do it. They own it and can distribute it outside of the license they created for everyone else.

Yes. Simple distribution of OGC with attached notice of what is OGC and accompanying OGL is defined in the OGL as ‘use’ and acceptance of the contributors offer is done via ‘use’.

 

[Maxperson]

Yes. Simple distribution of OGC with attached notice of what is OGC and accompanying OGL is defined in the OGL as ‘use’ and acceptance of the contributors offer is done via ‘use’.

If you've been paying attention to all of the attorneys in these threads, then you will have seen that when figuring out what a contract means, they look at that content to find the intent. It's clear between the definitions, the opening paragraphs, and the language used in the OGL itself that the license was intended for you and me, not them. They are not bound by a term that the license makes clear through the language used all throughout it, is for others. The whole thing is written for YOU.

 

[FrogReaver]

If you've been paying attention to all of the attorneys in these threads, then you will have seen that when figuring out what a contract means, they look at that content to find the intent. It's clear between the definitions, the opening paragraphs, and the language used in the OGL itself that the license was intended for you and me, not them. They are not bound by a term that the license makes clear through the language used all throughout it, is for others. The whole thing is written for YOU.

Before claiming the attorneys and law professors agree with you, maybe you should actually let them reply to my argument. This is the first time I’ve seen anything resembling it made in these threads.

 

[Aspirinsmurf]

If you've been paying attention to all of the attorneys in these threads, then you will have seen that when figuring out what a contract means, they look at that content to find the intent. It's clear between the definitions, the opening paragraphs, and the language used in the OGL itself that the license was intended for you and me, not them. They are not bound by a term that the license makes clear through the language used all throughout it, is for others. The whole thing is written for YOU.

I, too, would be skeptical of an interpretation that would preclude an original contributor of OGC from distributing or licensing that material in any other way than under the terms of the license. WotC have certainly done so unopposed in the past. And so, I think, have other contributors of completely original OGC (other original games released under the license).

 

[FrogReaver]

I, too, would be skeptical of an interpretation that would preclude an original contributor of OGC from distributing or licensing that material in any other way than under the terms of the license. WotC have certainly done so unopposed in the past. And so, I think, have other contributors of completely original OGC (other original games released under the license).

I would too. Why does anyone think my argument necessitates that view or even makes it more likely?

 

[Aspirinsmurf]

I would too. Why does anyone think my argument necessitates that view or even makes it more likely?

If they're contractually bound by accepting the terms of the license, that follows, doesn't it? Section 10: "You MUST include a copy of this License with every copy of the Open Game Content You Distribute." Do the books WotC publish contain such a copy of the license? Do all the video games that have been made under different licensing arrangements?

 

[FrogReaver]

If they're contractually bound by accepting the terms of the license, that follows, doesn't it?

I don’t think so. My stance would be that the PHB doesn’t include any OGC. Since WOTC is copyright holder they can create 2 works with similar (or exactly the same content) and make one work OGC and the other not.

Section 10: "You MUST include a copy of this License with every copy of the Open Game Content You Distribute."

Yes.

Do the books WotC publish contain such a copy of the license? Do all the video games that have been made under different licensing arrangements?

Nope.

 

[pemerton]

That would be their own, which is why the logic is somewhat circular.

In the common law of contract, as a general proposition, you can't contract with yourself.

 

[Enrahim2]

In the common law of contract, as a general proposition, you can't contract with yourself.

If you create a company with yourself as the only employee; cannot you enter a employment contract with that company?

The argument here is that "the contributors" could be interpreted as a separate [edit: not legal] entity from wizards, even at the point in time wizards was the only one satisfying the criterion to be a contributor. Hence I dont see how this observation about contract law is relevant to the question at hand?

 

[Enrahim2]

I don’t think so. My stance would be that the PHB doesn’t include any OGC. Since WOTC is copyright holder they can create 2 works with similar (or exactly the same content) and make one work OGC and the other not.

As a layman, I think the key observation to resolve this conondrum is that various works by the same author can use different mechanisms to obtain rights to the use of that material. OGL provides one potential mechanism of obtaining rights to material. However declaring OGL do not involve the content creator waving the right to licence their work in other ways.

So imagine you are releasing two adventures, both containing an owlbear with statblock for convinience. Assuming you don't own the rights to the owlbear trough it not being not copyrightable or similar, you then have to seek the right to use it. For the first book, you decide to take up the public offer from the OGC contributors to use the OGC. You want to employ the section 4 grant of the license they gave you trough you receiving their OGC wizards distributed to you from their webserver when you downloaded the 5.1SRD. To employ this grant you have to agree to and follow all the terms, including copying the ogl and keep the ogc notices.

However for the second adventure you go to wizards to get a custom license for the use of the owlbear. As the copyright holders they are free to do that. As a result for the second adventure you dont need the grant of section 4. There are hence nothing that compells you to abide to any of those licensing terms for that second work.

I think the above is quite straight forward. What become more tricky is of course when try to apply this to the mechanisms we speculate being at work with the original content creators here. One way of thinking is that in order to be able to declare something ogc under ogl, you need to accept and be bound by the ogl for the work you publish with the new OGC. This would be the mechanism at work for the 5.1srd. While the MM, that do not declare any ogc, and (presumably) only contains works wizards has the rights to without the use of OGL is free to be published completely independent from the OGL.

 

[Hussar]

It’s not because the contributors of OGC is a reference to all contributors. By using OGC as use is defined in the OGL, WOTC becomes a licensee to all ‘the contributors’ of OGC. Using OGC is how that offer is accepted.

Your bringing assumptions into my position that don’t actually exist in it.

There is no such entity known as the “contributors” that could become the licensor.

Are you seriously suggesting that if WotC were to publish DnD material the violates the ogl, that any ogl contributor could them sue them?

That’s ridiculous.

 

[Enrahim2]

There is no such entity known as the “contributors” that could become the licensor.

Are you seriously suggesting that if WotC were to publish DnD material the violates the ogl, that any ogl contributor could them sue them?

That’s ridiculous.

I earlier used the term "legal entity" I now realise that is likely completely wrong, and might have confused the conversation.

The OGL clearly demands "Contributors" to be accepted as at least a concept. However calling this concept an "entity" seem to be comming with too much legal baggage. The OGL appear to consider this concept important in defining one part of the contract. Interpreting meaning into the concept of "contributor" hence seem important for understanding the contract.

The interpretation we are talking about now involves the possibility that one of the properties of the concept of "Contributors" is that it is clearly described as one of the parts of the license contract, and that it further can be said that it is this concept that is best described as the "licensor" in terms of the contract.

Indeed if there is somewhere a requirement that a contract part or a licensor has to be a single entity rather than a "collective" as described by the term "Contributors" in this license agreement, more complex elaboration is needed to see how this indeed can be considered a well formed license agreement at all.

Is this agreement essentially "I agree with Santa Claus, that anyone can license my designated work by entering the same kind of agreement with Santa Claus, and Santa Claus offers this agreement to everyone"? If not, what is the key difference? (I am genuinely curious, as I hope this line of thinking might get us out of the conceptual quagmire this thread seem to be stuck in now. I really don't know how to understand this OGL anymore)

 

[pemerton]

Yes, but distributing their own OGC does not make them a licensee. When they incorporated other folks' OGC into their work and then distributed that, they technically would've been a licensee of the third party publisher with regards to the third party OGC that they were distributing.

An alternative possibility is that WotC became a licensee in respect of all the OGC in the 3PP's work. This is one of the points of uncertainty in interpretation of the phrase the OGC as that phrase occurs in section 4.

 

[pemerton]

Can you summarize that argument and comment on its strengths and weaknesses as compared to other interpretations?

If it's the case that what section 4 licenses is the OGC to which the contributor has a section 2 notice of offer affixed, then it seems to me that the licensee has an argument that their contractual right against the licensor obliges the licensor to keep that offer on foot - at least in respect of them - so as to not bring it about that the subject matter of the licence evaportaes.

I don't have a view on how strong that argument is. It depends on which elements of the contract are treated as subordinate to which others. I would expect the approach to this to reflect both general principles of contract law, and also a close consideration of what the parties are bargaining for and hence ought to be understood to have agreed to.