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

[pemerton]

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.

I've read all your posts. They don't make any sense. You're trying to reason as if the OGL creates a statutory scheme for copyright pooling. But it doesn't. It's a private law agreement.

You are trying to argue that a party can enter into a private law agreement, at time zero, with another entity that doesn't even exist at that time. But you can't point to any legal principle that explains how that would work.

You are trying to argue that licences can be created over IP that doesn't exist yet. You haven't explained how you think that works, by reference to any legal principles.

The above is my substantial response. You are not presenting any legal arguments. You are not engaging in any legal reasoning.

 

[mamba]

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".

so how do we know that there should be commas here? Keep in mind that English is my second language and the rules on that are fuzzy to me even in my first

To me the sentence without commas works just fine, obviously it also works with commas but changes the meaning somewhat. So given that there aren’t any, how do we know that ‘there should have been’?

 

[Enrahim2]

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.

This is a good point. I was thinking that you had to be a part of the contract to initiate legal actions related to the contract.

In that case I agree trying to grasp at some weird legal edge case to bootstrap a robust content pool is not making sense. It seem like such a content pool interpretation would just lead to a lot of legal confusion, without acheiving anything practically beyond artificially trying to prevent the first contributor from becoming the single point of failure.

I checked CC and GNU, and they appear to acheive what they want while not being open to any interpretation related to such weird collective pool concepts to try to anchor the availability to a larger body of people than what is "needed" for the individual licensing. As the OGL was designed based on similar ideas as these, it seem unlikely that it try to do anything drastically different and conteoversial than these.

As for the FAQ 22, that spawned this line of thinking, I still haven't grasped what they try to say with it. It might be that it is a bit clunsily formulated, and what they meant to say was that if someone published original material alongside existing OGC (hence having to be under OGL), then you are a licensee. I guess we can never know for sure.

 

[tomBitonti]

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.

The word “Use” (of OGC) is being used (by some) in the sense of being sufficient for the OGL (taken as a contract which, when accepted issues a license) to be accepted and a license issued. Section 2 specifies a condition which is a requirement of the agreement. I take that to mean that even though WotC “Uses” OGC per 1g, they don’t satisfy section 2, which means they haven’t accepted the OGC and the terms of the OGL (taken as a contract) don’t apply to them.

Unless they have actually satisfied section 2. The prevailing view says isn't the case.

TomB

 

[Maxperson]

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

What would be the point. You control the company, so any terms that you could put into a contract you can do without a contract. Further, what would you do if you breached such a contract? Sue the company for the damages that you caused to yourself by not following your own contract?

 

[Maxperson]

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.

I brought that possibility up to @FrogReaver last night. The section below seems like it could mean that.

5.Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

 

[Maxperson]

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.

Plus OGL 1.0a section 2 states that you cannot apply any other terms or condition to any OGC distributed using the license.

 

[tomBitonti]

You are trying to argue that a party can enter into a private law agreement, at time zero, with another entity that doesn't even exist at that time. But you can't point to any legal principle that explains how that would work.

You are trying to argue that licenses can be created over IP that doesn't exist yet. You haven't explained how you think that works, by reference to any legal principles.

Additional text omitted.

But doesn't section 4 do exactly that? If not as a pool, at least individually? Doesn't each Contributor implicitly agree to, at future point in time, to an as of yet unknown new User, to grant them a license?

TomB

 

[Maxperson]

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.

You haven't answered it, though. He's asking you what it means in legal terms, and you haven't stated any. You're coming at this from a layman's point of view and it's not making sense to him because he's looking at this from the point of view of how the law works.

An example of this is revocable or irrevocable. Just because a contract fails to say irrevocable, does not mean that it is revocable. A layman might come here and say, "It doesn't say it's irrevocable, so it isn't." The legal process, though, is to look at the document(and sometimes other documents) and the language used to figure out if the intent was for it to be revocable or irrevocable. Similarly, a layman might come and argue that 1.2 is irrevocable because it says that it is, but the legal process would be to look at the other language to figure out the intent, and if the intent is determined to be that the contract is revocable, then the word irrevocable doesn't matter.

This is the problem you are facing. You're arguing the meanings of things based on a layman's view and it's not matching up to any legal process that he is aware of, which is throwing @pemerton off. If you have something solid in law to back up what you are saying, you should bring it up.

 

[Maxperson]

Additional text omitted.

But doesn't section 4 do exactly that? If not as a pool, at least individually? Doesn't each Contributor implicitly agree to, at future point in time, to an as of yet unknown new User, to grant them a license?

TomB

If at that future time someone takes them up on it. The offer is out there, but there's no relationship at all until someone explicitly accepts that offer. At that point a relationship is formed. Not prior to it.

So if you create new OGC, you have warranted that anyone can use it if they accept the license offer that you agreed to provide by using OGL 1.0a to produce your content. You're doing what WotC is doing with the OGL and putting out an unilateral contract involving the OGC that you own that people can agree to later.

 

[mamba]

But doesn't section 4 do exactly that? If not as a pool, at least individually? Doesn't each Contributor implicitly agree to, at future point in time, to an as of yet unknown new User, to grant them a license?

no, the contributors are offering a license to the new user, and that user is free to accept its terms or not, neither of which has an impact on the contributors

 

[tomBitonti]

no, the contributors are offering a license to the new user, and that user is free to accept its terms or not, neither of which has an impact on the contributors

I was responding to this:

You are trying to argue that a party can enter into a private law agreement, at time zero, with another entity that doesn't even exist at that time. But you can't point to any legal principle that explains how that would work.

Isn't the grant of a license a private law agreement?

TomB

 

[Maxperson]

Isn't the grant of a license a private law agreement?

TomB

No. It takes two(or more) to agree. It's just a unilateral offer until someone comes along later and takes you up on it.

 

[tomBitonti]

No. It takes two(or more) to agree. It's just a unilateral offer until someone comes along later and takes you up on it.

Ah. Ok, I think my problem was that I was missing the "at time zero":

You are trying to argue that a party can enter into a private law agreement, at time zero, with another entity that doesn't even exist at that time.

Bold added by me.

More precisely then, each Contributor agrees at time zero (when they accepted the license) that they will -- in the future and to currently unknown parties -- grant a license to their contributed content to the unknown parties. That is, the terms of the license (as a contract) bind them to their future offer of a license.

I'll have to read back to see how this impacts the discussion.

TomB

 

[mamba]

Isn't the grant of a license a private law agreement?

the offer to license, no, someone taking you up on that offer, yes

 

[Steel_Wind]

What would be the point. You control the company, so any terms that you could put into a contract you can do without a contract. Further, what would you do if you breached such a contract? Sue the company for the damages that you caused to yourself by not following your own contract?

This is called a personal services contract. There are often very good reasons for doing so and usually relate to tax advantages, but may otherwise form the basis of extending a General Security Agreement, or trying to create a stock option, etc.. The reasons for doing so are numerous and each turns upon the specifics of the circumstances.

Usually, however, in the end, it's principally tax driven. It happens often for this purpose in jurisdictions that permit it. Many do not for that very reason.

 

[Staffan]

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.

Does it change anything that Wizards published Unearthed Arcana under the OGL, and included material from 3PP (Swords of our Fathers from The Game Mechanics and Mutants & Masterminds from Green Ronin)? This was not released as an SRD, but as a genuinely OGL book release.

 

[FrogReaver]

This is a good point. I was thinking that you had to be a part of the contract to initiate legal actions related to the contract.

In that case I agree trying to grasp at some weird legal edge case to bootstrap a robust content pool is not making sense. It seem like such a content pool interpretation would just lead to a lot of legal confusion, without acheiving anything practically beyond artificially trying to prevent the first contributor from becoming the single point of failure.

I checked CC and GNU, and they appear to acheive what they want while not being open to any interpretation related to such weird collective pool concepts to try to anchor the availability to a larger body of people than what is "needed" for the individual licensing. As the OGL was designed based on similar ideas as these, it seem unlikely that it try to do anything drastically different and conteoversial than these.

As for the FAQ 22, that spawned this line of thinking, I still haven't grasped what they try to say with it. It might be that it is a bit clunsily formulated, and what they meant to say was that if someone published original material alongside existing OGC (hence having to be under OGL), then you are a licensee. I guess we can never know for sure.

The comparison to CC and GNL is interesting. So are the differences, especially with CC which is the most similar to the OGL 1.0a.

 

[FrogReaver]

The word “Use” (of OGC) is being used (by some) in the sense of being sufficient for the OGL (taken as a contract which, when accepted issues a license) to be accepted and a license issued. Section 2 specifies a condition which is a requirement of the agreement. I take that to mean that even though WotC “Uses” OGC per 1g, they don’t satisfy section 2, which means they haven’t accepted the OGC and the terms of the OGL (taken as a contract) don’t apply to them.

Unless they have actually satisfied section 2. The prevailing view says isn't the case.

TomB

Okay, now I’m Curious what you or anyone thinks they don’t satisfy from section 2?

 

[Maxperson]

Okay, now I’m Curious what you or anyone thinks they don’t satisfy from section 2?

WotC fails to satisfy the bolded portion of section 2.

2. The License: This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.

WotC does not post the notice that they must affix if they were using the OGL. Since section 2 is the license, they do not use the license when putting out content.