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

[pemerton]

Use includes "licensing", however. Does contributing OGC not include licensing it for others to use?

There is a difference between parties who are contractually obliged to offer to license their works under the terms of the OGL, as their consideration in exchange for being granted a licence to use another's OGC, and those parties who offer their OGC gratuitously and hence are not contractually obliged to make an offer. To the best of my knowledge, WotC is in the second category in respect of its 5e SRDs.

 

[pemerton]

I don't think it says that. It says "g) "Use", "Used" or "Using" means to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."

An original work (the SRD) is not derivative. Wizards is not "Using" their original work by definition g) even though they are distributing it.

You have misread (g), I think.

It is intended to be read as if there were commas on either side of "and otherwise create Derivate Material".

 

[pemerton]

nice, but irrelevant, because it is still about derived work

This is not correct. See my post just above.

 

[pemerton]

I've been re-reading 1(b), and I can't help but think that, despite the fact that we can read the license to get where you're going, that it's not intended to be read this way. The entire list suggests that the intention was to deal with changing existing works in the definition and not to suggest that all OGC was Derivative Materials. I'm not entirely sure that the ambiguity in drafting is significant enough to be read against WotC, but I guess it could be. At least it's not something I would want to test myself.

There's also part of me that finds myself reading the clause as if the list is offset as I'm showing below. I don't know how convincing I find it, as it's still awkward, but the awkward drafting's in line with some things that I've seen at my day job lately.


Edited for clarity and to add in a missing word. Edit in Italics.

I haven't tried to fully unpack your reading, but your methodology is correct. It's not uncommon in a list of terms in a contractual definition that if one wishes to make it read as ordinary language, one needs to interpolate commas.

Here are the things that count as Use:

* using OGC;

• Distributing (= reproducing, licensing, renting, leasing, selling, broadcasting, publicly displaying, transmittingor otherwise distributing) OGC;
• copying OGC;
• editing OGC;
• formatting OGC;
• modifying OGC;
• translating OC;
• creating Derivative Material of OGC (otherwise than by editing, formatting, modifying or translating it).

"Licensing" in this context means "issuing a licence", not "receiving the benefit of a licence".

@Aspirinsmurf @mamba @FrogReaver This post is also relevant to your various posts upthread.

 

[pemerton]

The OGL isn’t hundreds of separate offers from each individual copyright holder.

That's exactly what a given OGL-licensed ecology is. That's how it works: that's what makes it viral, and is what is supposed to make it impossible to undo.

If W licenses to A, who in turn license to B; and if W also licenses to C, who in turn licenses to D; then A and B have no legal relationship with C and D. In the scenario I've just sketched, B has heard of A (and must list A in their section 15 statement) and likewise D has heard of C. But A is not a licensee of B - A need not heard of B at all. Likewise as between C and D. And even more so when it comes to A and B, on the one hand, and C and D on the other. Just as one example, B doesn't need to mention C or D in their section 15 statement, and may not even know they exist.

Of course A and B are offering to license to C and D (and vice versa). C or D would take up that offer, and thus enter into a contractual relationship, by using the OGC that A and B are offering. This would make one the licensee of another, and create a new contractual relationship in the network of interlocking contracts that make up a particular ecology of OGC.

That can't be the case. No single party owns all the OGC, and you certainly don't have to use all the OGC. There might exist the possibility that the Contributors are acting collectively in respect to granting you the right to Use the OGC that you're actually Using, but I'm not sure if that's the most plausible interpretation either.

I don't see that it's an open interpretation.

In my example just above, B isn't licensing to C or D - it's quite plausible that B has never heard of C or D, nor either C or D heard of B.

The OGL has a mechanism for keeping track of the legal relationships, namely, the inclusion of a contributor in the section 15 statement.

 

[pemerton]

I think @pemerton has acknowledged that this interpretation is possible, if not plausible.

I think @FrogReaver is misinterpreting the terms of the OGL, and the way that the licensing regime works. He is reading it as some sort of open-ended pooling agreement in which every member can vary the terms of the agreement on behalf of every other.

I think it is more straightforward than that - as the terms of the OGL themselves indicate, there are a series of contracts between licensors and licensees.

 

[pemerton]

By the way - nice appeal to authority.

I think the word you're looking for is expertise. Contract law is a field of technical knowledge. Not everyone's opinion about the meaning of the OGL is equally worthy of being taken seriously.

 

[pemerton]

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’)

In Year 1, WotC publishes the SRD, with an affixed notice saying that (i) identifies OGC within the document, and (ii) stating that that OGC may be used by anyone who does so in conformity with the terms of the OGL v 1.0a.

In Year 2, A accepts WotC's offer and publishes a work that includes, as OGC, X - where X is derivative in some fashion of WotC's OGC. In conformity with the OGL, A includes the OGL in A's work and thus offers to license to all comers on those terms.

In Year 3, B accepts A's offer and publishes a work that includes, as OGC, Z - where Z is derivative in some fashion of X. B also conforms with their OGL obligations, which means that their section 15 statement includes both WotC's SRD and A's work.

You (FrogReaver) appear to be asserting that WotC, in Year 1, created the licence between A and B that comes into being in Year 3, in relation to work that A did in Year 2. And also that, in Year 1, a licence comes into being between WotC and A (although perhaps A did not even exist at that time - maybe A is not incorporated until Year 2).

Or maybe you're asserting that, in Year 1, a licence comes into being in WotC's favour in resect of X (which will not exist until Year 2) and Z (which will not exist until Year 3).

Perhaps you're asserting both. In my view neither makes any sense.

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.

This doesn't make any sense either. The licence is created by way of contract (section 4). And the contract arises, in accordance with general principles of the common law of contract, when the offer is accepted (and section 3 explains how acceptance occurs).

When you say "is how that offer is accepted" (my emphasis), which offer are you talking about?

And when you say "becomes a licensee to", what do you mean by that? A licensee is a licensee of something. It is the licensor who licenses that something to the licensee.

I can't make sense of what you are saying here.

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’.

Whose offer? Which contributors? When WotC published its SRD with the notice affixed (i) identifying the OGC in the document and (ii) offering to license that OGC in terms of the OGL v 1.0a, there were no offers from any contributors.

 

[Enrahim2]

In my example just above, B isn't licensing to C or D - it's quite plausible that B has never heard of C or D, nor either C or D heard of B.

I don't immediately see how this knowledge element prohibits an interpretation of collective licensing. After all the openess of the license by it's very nature mean that at least one part of the legal arangement need to be explicitly aware of the other. In your example A do not to be aware of B.

Similarly it is clear that someone licensing a work need to be aware of at least one person that offer the license, and that there is an obvious legal relationship between those presenting the offer(s) they accept and the licensee. It is however not obvious to me that this should by necessity eliminate the posibility of there being a legal relationship with other members of the (potential) collective described in the definition of "Contributors".

It is for instance not obvious to me that A is unable to invoke section 13 on behalf of the contributors if they find D to be in breach of the terms in order to preserve the integrity of the license they rely on.

I agree that the reading you describe make sense, but there seem to be more principles than what you present that need to be at work to decisively refute the alternative interpretation.

 

[pemerton]

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

That would depend on the employment law of your jurisdiction

But I don't see how this has any bearing on my remark that in the common law of contract, you can't generally contract with yourself. A necessary condition of A being employed by B is that A and B are distinct parties.

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?

I don't know what you mean. What is a separate but not legal entity which is defined by criteria that only WotC satisfies? What legal concepts are you deploying here?

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.

The term "Contributor(s)" is defined, in section 1(a) - it means those who have contributed Open Gaming Content.

Like most definitions in legal instruments, it has to be read in the context of the agreement. Which OGC is being talked about? To what or whom must that OGC have been contributed? Section 4 answers that question - it is the OGC that is the subject-matter of the grant from the Contributors. In other words, the Contributors are those whose OGC is being licensed. And of course this can only be done by parties having the requisite legal authority, either because they own the relevant IP rights, or they have had that IP owner confer an appropriate power on them - perhaps pursuant to the OGL!

 

[pemerton]

I don't immediately see how this knowledge element prohibits an interpretation of collective licensing. After all the openess of the license by it's very nature mean that at least one part of the legal arangement need to be explicitly aware of the other. In your example A do not to be aware of B.

Yes, because it's a "unilateral" offer: Carlill v Carbolic Smoke Ball Co - Wikipedia

You'll notice that in the example in the post you quoted, I talked about mutual ignorance. You are positing that B and C who have never heard of one another nevertheless end up in a legal relationship with one another. How do you suppose that is happening? Who is initiating it?

It is for instance not obvious to me that A is unable to invoke section 13 on behalf of the contributors if they find D to be in breach of the terms in order to preserve the integrity of the license they rely on.

What do you mean "invoke section 13"? Here is the relevant text of section 13:

This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach.​

Section 13 does not confer a power on anyone other than the licensee in breach, who enjoys a power of cure.

Of course, if I notice that a party to the OGL is in breach then I could write to them and make them aware of the breach. That wouldn't depend on me being a party to the OGL.

I agree that the reading you describe make sense, but there seem to be more principles than what you present that need to be at work to decisively refute the alternative interpretation.

The "interpretation" that you and @FrogReaver are advancing makes no sense to me. It involves non-entities being parties to non-contractual agreements issuing licenses over works that don't exist using powers they haven't been granted.

 

[FrogReaver]

Like most definitions in legal instruments, it has to be read in the context of the agreement. Which OGC is being talked about? To what or whom must that OGC have been contributed? Section 4 answers that question - it is the OGC that is the subject-matter of the grant from the Contributors.

Agreed

In other words, the Contributors are those whose OGC is being licensed.

Agreed

And of course this can only be done by parties having the requisite legal authority, either because they own the relevant IP rights, or they have had that IP owner confer an appropriate power on them - perhaps pursuant to the OGL!

Agreed

You seem to be limiting ‘the OGC’ to mean ‘the OGC’ you ‘use’. The license itself doesn’t make that claim. When you accept the license you accept an offer from all contributors to use all the OGC.

 

[pemerton]

Playing Devil's Advocate, or in this case Devil's Layman. As much as I hate the bad taste it leaves in my mouth to bring this argument:

The initial licensee (one working directly off the SRD) creates a derivative work from the Open Game Content within the SRD. This can be anything from writing a character class based upon the concepts and rules within the SRD to taking the entire SRD and converting it to HTML, Markdown, or other formats.
The resulting work is a derivative work created by the licensee, using the permissions granted by the license to do so, but the copyright for the derivative work only covers the additions or changes to the original work, not the original itself. (derivative work)
It would therefore appear to follow that the licensee only has the right to offer a license to their additions or changes (or rather, to offer their OGC to be combined in the license with other contributors offers.)

This appears to be backed up slightly by


Stating that you need the rights in the first place to contribute material as OGC, an indication that Your Contributions are considered at least here, separate to the OGC within the work as a whole.

Now, taking into account

read in conjunction with

and

At no point does the license mention the right for the licensee to sublicense any of the Used OGC. Instead, it seems to pass on the license offer from "the Contributors". Not making on their behalf, simply passing on the message that the Contributors have made offers - so if one or more are rescinding that offer, it's no longer available to accept.

This leaves the downstream licensee only able to "pass down" the OGC for which a valid offer still remains - that which any remaining Contributors own copyright to - their specific enhancements made in their derivative works - plus of course their own. Or in other words, the offer is made with big holes in it where OGC has been withdrawn.

I'm hoping here that as someone with zero actual legal knowledge, that I've missed something important and am horribly wrong.

If you license X to me, and then I sub-license X to my friend, both my friend and I have licences with the same subject-matter - namely, X. Sub-licensing needn't involve any change in the subject-matter of the licence; the core feature of a sub-license is how it is created - ie by an exercise of legal power by an existing licensee.

The grant of licence under section 4 extends to "Use", which includes (via the definition of "Distribute") "licensing". This is where a licensee gets the power to issue, to downstream licensees, licences in respect of upstream licensors' works.

If the upstream licensor has withdrawn (or purported to withdraw) their offer to license, and they are contractually obliged not to withdraw it, then the first question is can they plead their purported withdrawal, and hence the non-existence of a downstream contract, to try and defeat a downstream licensee's claim to enjoy a contractual licence? My intuition is "no", but I'd be interested in a second opinion.

If the answer is "yes", then they find themself in the same position as an upstream licensor (eg WotC) who is not contractually obliged to keep their offer on foot. Does that withdrawal of the offer affect the power of their licensee to license to parties further downstream? I don't think this depends on the meaning of "Use". It depends on the construction of the subject matter of the section 4 grant.

Ugh, I missed one of the obvious Capitalized Definitions! (Wait, no, that's a good thing, we don't want my argument to be right )

And yes, the argument I've been making myself through all of this is that once I create my Work (even if it's, as you say, a verbatim cut+paste), I'm licencing out that (which I created with permission), and the license is now between me and the next Licensee and cannot be affected by anyone upstream. I did miss the part about "Contributors" in that argument though, so I may have to rethink on where that fits.

You can license "the Open Game Content" - that is the subject matter of the licence you have been granted.

You've probably read my posts upthread and in other threads about that topic, so I won't repeat myself in this post.

 

[pemerton]

You seem to be limiting ‘the OGC’ to mean ‘the OGC’ you ‘use’. The license itself doesn’t make that claim. When you accept the license you accept an offer from all contributors to use all the OGC.

I could, tomorrow, take up WotC still-extant offer to license some OGC to me in terms of the OGL. And I could then publish my work with (say) a new wizard spell. That would make me a "contributor" of OGC to anyone who enters into a licence agreement with me in terms of the OGC.

But you seem to be suggesting that parties accepted an offer from me before I made it. I don't know how you think that works.

As for your suggestion that I am taking "the OGC" to mean "the OGC that you Use", that's not correct. In reply to you I've canvassed multiple interpretations of that phrase: see eg post 2140 in this thread.

 

[tomBitonti]

Yes it does. The OGL makes them a licensee for all OGC by virtue of their distribution of OGC.

Trying to find a spot for this reply.

From this:

Generally, acceptance does not happen in the following instances:
…
The response comes with conditions:
…

As there are conditions - section 2, at least - section 3 would seem to require those conditions in addition to ”Use” (as defined in section 1g) before a license is given (granted?) I presume, legally, this goes without saying, hence the very compact wording of section 3.

TomB

 

[FrogReaver]

Trying to find a spot for this reply.

From this:



As there are conditions - section 2, at least - section 3 would seem to require those conditions in addition to ”Use” (as defined in section 1g) before a license is given (granted?) I presume, legally, this goes without saying, hence the very compact wording of section 3.

TomB

I'm not quite following.

The basic premise that acceptance isn't really acceptance if there is some unfilled condition isn't hard to grasp, but i'm not understanding the relevance here.

 

[FrogReaver]

I could, tomorrow, take up WotC still-extant offer to license some OGC to me in terms of the OGL. And I could then publish my work with (say) a new wizard spell. That would make me a "contributor" of OGC to anyone who enters into a licence agreement with me in terms of the OGC.

Contributors are not defined in relation to you. They are defined as:

1a. Definitions: (a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;​

You will thus be a contributor to anyone who enters into a license agreement to use the OGC.

But you seem to be suggesting that parties accepted an offer from me before I made it. I don't know how you think that works.

They accepted an offer from the contributors. After they accepted you then agreed to be a contributor by publishing your OGC under the OGL. The License itself in section 2 tells them that your material applies - 'This License applies to any Open Game Content that contains a notice....'

I don't know why you think this doesn't work.

As for your suggestion that I am taking "the OGC" to mean "the OGC that you Use", that's not correct. In reply to you I've canvassed multiple interpretations of that phrase: see eg post 2140 in this thread.

You certainly aren't taking it to mean all OGC. So which OGC do you take it to mean?

 

[pemerton]

Trying to find a spot for this reply.

From this:



As there are conditions - section 2, at least - section 3 would seem to require those conditions in addition to ”Use” (as defined in section 1g) before a license is given (granted?) I presume, legally, this goes without saying, hence the very compact wording of section 3.

TomB

The thing you're quoting is talking about conditions specified by the would-be acceptor that differ from the terms of the offer. If I make an offer in terms XYZ, and a party replies saying that they accept but on terms XYQ, then no contract arises as there is no meeting of minds over the terms of the agreement.

The OGL sets out the terms of the offer. There is no provision, within the OGL scheme, for negotiation over the terms.

 

[pemerton]

They accepted an offer from the contributors. After they accepted you then agreed to be a contributor by publishing your OGC under the OGL. The License itself in section 2 tells them that your material applies - 'This License applies to any Open Game Content that contains a notice....'

I don't know why you think this doesn't work.

I don't know what your "this" is. Who accepted what offer from which contributors? When you say that "I agreed to be a contributor", what does that mean in legal terms? Who am I agreeing with? What are you saying is the source of my legal powers and obligations? You're not describing any legal arrangement or process that I can make sense of.

 

[FrogReaver]

I don't know what your "this" is. Who accepted what offer from which contributors? When you say that "I agreed to be a contributor", what does that mean in legal terms? Who am I agreeing with? What are you saying is the source of my legal powers and obligations? You're not describing any legal arrangement or process that I can make sense of.

I’ve answered these same questions 5000 times. It gets old. If you can’t actually respond to my posts with substance please stop asking me the same 5000 questions I’ve already answered.