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

[glass]

Now, let's be honest here. First off, the chances that the copyright to Dungeons and Dragons would ever cease to be held by someone is wildly unlikely. As in you are far more likely to spontaneously combust that this happen. WotC would have to disappear, Hasbro would also need to disappear, and both would need to disappear in such a way that they are unable to sell the rights to D&D to someone else before disappearing.

...and even if all that did happen, the liquidator/receiver will sell D&D on their behalf and pass the proceeds to WotC's creditors. The only way the ownership of Hasbro's any of Hasbro's assets ends up in a mess is if 1) they are already in a mess, so selling them is not straightforward or 2) nobody wants to buy them. Neither of those seems to be likely with D&D.

 

[pemerton]

However, what if I could claim that I had reasonable reason to believe I was invited? For instance if two houses next to each other are having identical signs reading "everyone is welcome to enter, as long as you don't wear shoes". I see a lot of people enter one of the houses with slippers. I assume it is commonly accepted that slippers do not count as shoes in this context, so I enter the other house wearing slippers. I then get sued to personal bankruptcy for ruining the floor of the second house. (It turns out that the owner of the first house was dead, which I didn't know).

It's an odd example. Because you're talking about evidence of practice to interpret a condition. You're also raising the issue of remedy (ie damages for loss caused) rather than mere liability (for trespass).

Whereas in the example you gave about trademarks, you're positing that B infers PF isn't protecting its trademarks just because no one is protecting the D&D trademark. That's not about remedy, and nor is about evidence of practice. It's about drawing an inference about one trademark from another. I don't see how that can be reasonable - assuming that reasonableness is even a defence in the context of passing off, which I don't know but would not be certain about.

This also seem ripe for hostile exploit. A bad actor set up a company A publicly offering a contract, widely actively misrepresenting what it say. People take it up, and A enforces it according to the misrepresentation. The bad actor then sets up a second company B offering a contract with the same wording but stay silent about the meaning. After people take up the contract from B assuming it mean what A said, B can then spring whatever hidden trap is set up in the contract. As B did not misrepresent the contract, and A is not part to the contract, there appear to be no way out of the contract with B. And by not being a party of the contract with A, there are no way to seek damages from A either.

If you're talking consumer contracts, those are heavily regulated in most contexts. Likewise employment contracts (perhaps even in the US - though I understand that US employment law is quite libertarian compare to other jurisdictions).

If you're talking commercial contracts like the OGL, then I don't see how dealings between A and contracting parties are relevant to dealings between B and its parties. Unless you're trying to establish some sort of evidence of industry practice, or trying to establish some sort of estoppel given the commonality of the "bad actors" between A and B.

My point is that both of these examples seem to be clear volitions of what I would expect anyone to be considered just. Laws are usually written to align with what is perceived as just. It might be indeed that this is an area were the laws are indeed flawed in that it enables such deeply problematic outcomes. I find it however surprising, given the widespread use of public contracts that there should be such gaping fundamental flaws in the basic law regarding this overall practice.

I think the sorts of examples you're making up are mostly spurious. They rest on assumptions that commercial actors don't take steps to understand their private rights and contractual obligations. In the real world, commercial actors often do take those steps.

 

[Enrahim2]

I think the sorts of examples you're making up are mostly spurious. They rest on assumptions that commercial actors don't take steps to understand their private rights and contractual obligations. In the real world, commercial actors often do take those steps.

Thank you! I think maybe here lie a key observation. I can agree that if the OGL is looked at trough the same lens as negotiated private contracts between commercial parties this all make very much sense. I think the problem I have with this is that as you point out for instance consumer contracts typically enjoy heavier regulation. And it is not apparent to me that open contracts like the OGL would not somehow fall outside a purely B2B contract regime.

After all, a lot of the users of OGL are hobbyists releasing homebrew for 5ed that they sell for peanuts. Putting such assumptions on their ability or competence to hire legal council before subjecting their IP to the vims of wizards seem weird to me.

Had the only ones being affected been companies having a gross revenue over 750 000, a commercial actor assumption would have made perfect sense. But as wizards themselves put it - they assume that to be an almost insignificant minority.

I find it a bit sad that quality content made by companies like Kobold Press, Frog God Games or Troll Lord Games might get temporarily "locked down", but these I feel confident has ways out of this thanks to being actual proper commercial actors. What I really find tragic is how the works and dreams of hundreds of enthusiasts are getting sealed down. Not to mention those that just quit their day job, hoping to scrape by on their long prepared 5ed supplement they were planning to release.

 

[Enrahim2]

Whereas in the example you gave about trademarks, you're positing that B infers PF isn't protecting its trademarks just because no one is protecting the D&D trademark.

No, I didn't position the inference that PF isn't protecting its trademarks. The crucial (incorrect) inference for this example would be that Paizo accept A's interpretation of the OGL due to not reasonably being able to know that Paizo disagree with A's much publicized claim as to what the OGL mean.

 

[pemerton]

a lot of the users of OGL are hobbyists releasing homebrew for 5ed that they sell for peanuts. Putting such assumptions on their ability or competence to hire legal council before subjecting their IP to the vims of wizards seem weird to me.

In my view, there is a flipside to this: if you build your hobby around the IP of a commercial publishes whose sole source of revenue is leveraging its IP, you can't be too shocked when the licensing regime changes on you. I mean, either your are getting legal advice and building your own business on a sound legal foundation; or you're taking your chances that the company whose IP you're relying on will not change its approach.

Had the only ones being affected been companies having a gross revenue over 750 000, a commercial actor assumption would have made perfect sense. But as wizards themselves put it - they assume that to be an almost insignificant minority.

I find it a bit sad that quality content made by companies like Kobold Press, Frog God Games or Troll Lord Games might get temporarily "locked down", but these I feel confident has ways out of this thanks to being actual proper commercial actors. What I really find tragic is how the works and dreams of hundreds of enthusiasts are getting sealed down. Not to mention those that just quit their day job, hoping to scrape by on their long prepared 5ed supplement they were planning to release.

According to another current thread, sales of PF, CoC and Level Up are booming, and this is being celebrated. Assuming that the overall amount of money being spent on RPGs is not growing significantly, that money is coming from somewhere else: whether the smaller publishers you mention, or WotC, or wherever. I read a lot of posts gleefully wishing disaster on WotC - but it seems to me that WotC employees are as entitled to make a living as anyone else.

The most recent RPGs I've purchased physical books for were written by John Harper (Agon) and BWHQ (Torchbearer). I also recently bought the PDF for Blade of the Iron Throne, a TRoS variant. My personal enthusiasm in relation to small RPG publishers is for these indie types, rather than works in the 5e orbit.

Hence whey, in these threads, my focus is on the legal aspects of what I see as essentially a commercial licensing dispute.

 

[pemerton]

No, I didn't position the inference that PF isn't protecting its trademarks. The crucial (incorrect) inference for this example would be that Paizo accept A's interpretation of the OGL due to not reasonably being able to know that Paizo disagree with A's much publicized claim as to what the OGL mean.

I thought I was replying to this:

What I find mind boggling about this is that there are definitely parties interested in maintaining the integrity of this license, including the public.
To illustrate: For the sake of argument assume wizards go defunct in a way that make their IP effectively unenforced (as @pemerton points out, going out of business might not be a sure way of this, but there might be other ways). Moreover assume Paizo is thriving.
Now assume a new company A publishes a work using 5.1SRD under OGL 1.0a, but include the claim that it is "compatible with D&D". From what has been said, Paizo is then free to inform A that they are in breach of OGL 1.0a. However what if then A is making a claim (highly unlikely to hold up in court) that they indeed is not in breach?

In this scenario, as described by you, it is not at all clear whether or not A is in breach. A is entitled to assert the conformity of its behaviour to its legal obligations, like any other party.

You then posit that:

Assuming Paizo is still powerless, and this situation go on for a significant amount of time. Assume now a new company B put significant investments into a product line "extending Golarion" using PFSRD under OGL1.0a under the false belief that A's argument above now is effectively settled due to industry reliance without opposition (or similar legal-like thinking). Now Paizo is clearly in a position to sue B.

Why would B form a view about its entitlement to use Paizo's trademark based on the absence of anyone setting out to claim or defend the D&D brand?

You're now adding an additional element to your scenario - along the lines that A assert that the OGL does not impose any no bar on using trademarks to indicate compatibility. Why would Paizo not contradict this? What's the plausible scenario in which B take A rather than Paizo to be a better guide to the rights it enjoys in relation to Paizo's IP?

This is why I don't think your scenario is a very plausible one.

 

[Enrahim2]

In my view, there is a flipside to this: if you build your hobby around the IP of a commercial publishes whose sole source of revenue is leveraging its IP, you can't be too shocked when the licensing regime changes on you. I mean, either your are getting legal advice and building your own business on a sound legal foundation; or you're taking your chances that the company whose IP you're relying on will not change its approach.

Well, if your decision on consuming the products of the company is based upon the promise that you for all future can use the product for hobby activity under certain terms - wouldn't changing those terms fall squarely under consumer law?

As for your second bit. Yes, there are "winners" and "losers" of this. I am among those that would be happy to see wizards take a significantly lower market share. But I really didn't want to see it happening trough this kind of misguided trickery.

 

[Enrahim2]

You're now adding an additional element to your scenario - along the lines that A assert that the OGL does not impose any no bar on using trademarks to indicate compatibility. Why would Paizo not contradict this? What's the plausible scenario in which B take A rather than Paizo to be a better guide to the rights it enjoys in relation to Paizo's IP?

Ah, that would be my question (1). If indeed Paizo is able to contradict it, then as described the rest of the scenario is invalidated.
This entire line of reasoning was spawned by this question being confirmed by @Hussar :

Wait a second. Do this mean that if wizards go out of business without managing to sell off the rights to the SRD content, I can safely use the srd ogcs forever as noone can contest my use of the ogl1.0a?

The idea was that as Paizo is not a party of the contract between Wizards and A, they are not in a position to sue A over their claimed interpretation of that contract.

So how could Paizo contradict this?

 

[FrogReaver]

@pemerton and others

This goes for both your view and mine on the topic we have been discussing -

The way I read the OGL 1.0a is that the Contributors are always the licensor (using your view a specific case might be WOTC being 'the Contributors' for the SRD 5.1). Thus, it seems that Licensees of the OGL 1.0a aren't sublicensing anything when posting the OGL 1.0a, but instead just posting 'the Contributors' offer.

If so, then this has downstream implications on what deauthorization would accomplish (assuming they can deauthorize) and also, what a withdrawl of the offer would accomplish (assuming they can withdraw the offer).

Your thoughts?

 

[pemerton]

Well, if your decision on consuming the products of the company is based upon the promise that you for all future can use the product for hobby activity under certain terms - wouldn't changing those terms fall squarely under consumer law?

What jurisdiction's consumer law do you have in mind?

In any event, the terms on which hobbyists can play D&D haven't changed. What you're really trying to argue here, it seems to me, is that small scale ("hobbyist") commercial publishers have a consumer-style right against WotC that it not change its policy in relation to licensing and protecting its IP. I don't really feel the force of the argument.

If those parties think that they enjoy rights under their commercial licences, then by all means they should stand on those rights. I think the argument in their favour is strong. But I don't think that this is comparable to buying a defective toaster or defective car, and having the vendor or manufacturer try and avoid providing a proper warranty. Nor do I see it as analogous to being exploited by an insurance company, bank or telecom. This is not about consumer goods or services. It's about commercial licensing of manifestly valuable intellectual property.

 

[pemerton]

Ah, that would be my question (1). If indeed Paizo is able to contradict it, then as described the rest of the scenario is invalidated.
This entire line of reasoning was spawned by this question being confirmed by @Hussar :

The idea was that as Paizo is not a party of the contract between Wizards and A, they are not in a position to sue A over their claimed interpretation of that contract.

So how could Paizo contradict this?

In your post 2484, you referred to "A's much publicized claim as to what the OGL mean." I don't know how you are envisaging A making their much-publicised claim, but presumably the same avenues are open to Paizo.

To me, the most obvious place for Paizo to assert its right in respect of its trademarks would be on its website, and also in its Product Identity declaration on its published works.

 

[FrogReaver]

Sure, but you haven't shown any solid legal procedure that requires WotC to contract with itself through the license. You need to show that before anything in the OGL matters.

I wouldn’t need to show they are required only whether they did. But more importantly I’m not trying to claim Wotc contracted with itself. I’m claiming They contracted with the contributors, ex: Paizo, etc.

Correct in that it's required if you use the OGL.

Agreed.

WotC isn't required to provide any notice.

Yet they did!

 

[pemerton]

The way I read the OGL 1.0a is that the Contributors are always the licensor (using your view a specific case might be WOTC being 'the Contributors' for the SRD 5.1). Thus, it seems that Licensees of the OGL 1.0a aren't sublicensing anything when posting the OGL 1.0a, but instead just posting 'the Contributors' offer.

What do you mean, in legal terms, by "posting the Contributors' offer"?

Also, when you refer to "the Contributors' offer", which Contributor are you referring to? There is no single offer made by all owners of the copyright in OGC. For instance, WotC made an offer in respect of the OGC it declared in its various SRDs some number of years ago (different numbers of years for different SRDs). But probably some publisher published something under the OGL, licensed by WotC, just last week (or last month or whenever), and that publisher made its offer at that point.

If so, then this has downstream implications on what deauthorization would accomplish (assuming they can deauthorize) and also, what a withdrawl of the offer would accomplish (assuming they can withdraw the offer).

What downstream consequences?

I can't work out what legal state of affairs you're setting out to describe, and so I can't work out what legal consequences you think might follow from it.

But frankly I don't understand why you and some other posters are making such heavy weather of relatively clear elements of the OGL.

W(otC) offers to license elements of its SRD (ie the ones it notifies as OGC) pursuant to the terms of the OGL v 1.0a. Parties who take up that offer enter into a contractual relationship with WotC. The contract includes conferral on them of a power to license the OGC, and derivative material of that OGC, to downstream parties. They are also contractually obliged to offer such a licence to all the world, in the terms of the OGL. (Under section 9, they have a power to pick and choose among authorised variants when they do this. In practice, this has not turned out to be very significant because there are only two variants and everyone seems to prefer to use v 1.0a because it provides clearer protection of Product Identity.)

Let A be a downstream licensee of W, who in turn licenses to B. At that point, B enters into a contract with A. Does B also enter into a contract with W? If B is using W's OGC (and using W's OGC is defined to include using material derivative of W's OGC, which might be A's OGC) then the answer is perhaps - it might depend on B's state of mind vis-a-vis W's offer. On the other hand, if W has withdrawn its offer, then the answer presumably is No. Does it matter? It's not clear why it would, given that all that would flow from B's contract with W would be a licence in the terms of the OGL in respect of W's OGC, and B can already get that from A, in virtue of the powers that A gains from their licence from W.

Suppose, contrary to what I think is the only plausible interpretation of the OGL v 1.0a, W has a power to void - or "de-authorise" - all the licences that exist in respect of its OGC. I don't see how it would matter to the exercise of that power, and the consequences of its exercise, that some of those licences were granted directly by W and that others were granted by A by way of sub-licence.

But as I said, I don't see any plausible argument that W has such a power. As I've already posted (eg #2140) the real action, it seems to me, pertains to the subject-matter of the licences granted by W, and the way (if any) in which the endurance of that subject-matter depends upon W keeping its offer to license on foot. That doesn't depend either on how the licences in respect of that subject-matter were granted, as best I can see.

 

[Enrahim2]

What jurisdiction's consumer law do you have in mind?

Well, I live in Norway, where by my understanding consumer protection might be stronger than most places. But I realize that this tangent is likely not very interesting, as I think the only remedies this kind of law typically allow for is refund of products (which I get the impression is not something many is that interested in - edit: though it would definitely have been a potential vessel to put further pressure on wizards).

In your post 2484, you referred to "A's much publicized claim as to what the OGL mean." I don't know how you are envisaging A making their much-publicised claim, but presumably the same avenues are open to Paizo.

To me, the most obvious place for Paizo to assert its right in respect of its trademarks would be on its website, and also in its Product Identity declaration on its published works.

In my hypothetical scenario the main vessel A's interpretation would be widely publicized would be trough the growth of products basing themselves on that interpretation. I do however agree that even in the presence of that amount of misinformation, it might be considered common due diligence to check the legal section of the website of the owner of the IP if you are planning to put significant investments into such a project.

 

[pemerton]

I wouldn’t need to show they are required only whether they did. But more importantly I’m not trying to claim Wotc contracted with itself. I’m claiming They contracted with the contributors, ex: Paizo, etc.

To the best of my knowledge there is no contract between WotC and Paizo in which Paizo is a contributor of OGC. Of course, there is a contract (maybe more than one) between WotC and Paizo in which WotC is a contributor of OGC and Paizo a licensee in respect of that OGC.

WotC isn't required to provide any notice.

Yet they did!

When WotC offers to licence its work under the OGL, which uses the notion of Open Game Content as the principle conceptual device for identifying the licensed content, WotC naturally affixes a notice to its work specifying which content it is licensing. Otherwise its offer would be incomplete or incoherent.

This has nothing to do with WotC being under any legal obligation to provide any notice of anything.

 

[pemerton]

In my hypothetical scenario the main vessel A's interpretation would be widely publicized would be trough the growth of products basing themselves on that interpretation.

I don't see how this would establish an interpretation of anything. Maybe A believe that they are entitled to use trademarks to indicate compatibility. Maybe they believe that D&D is not a trademark. Maybe they believe they are infringing and don't care.

I do however agree that even in the presence of that amount of misinformation, it might be considered common due diligence to check the legal section of the website of the owner of the IP if you are planning to put significant investments into such a project.

If someone publishes work drawing on another party's IP, and doesn't take any steps to determine whether or not that other party permits it, I have little sympathy if the IP owner asserts its/their rights against that party. And particularly not in the context of the OGL, which makes explicit provision for protection of Product Identity, such that the licensor (eg Paizo) whose work B is drawing on will have made an express declaration of Product Identity as part of their offer to license their OGC.

 

[Maxperson]

Yet they did!

What 5e book did they put it in?

 

[FrogReaver]

What do you mean, in legal terms, by "posting the Contributors' offer"?

It's obvious. Please stop the 50,000 question pedantry.

Also, when you refer to "the Contributors' offer", which Contributor are you referring to?

Obvious again - Any given Contributor's offer. It's really not complicated. Which is why the 50,000 question pedantry is so annoying.

There is no single offer made by all owners of the copyright in OGC.

I specifically said: (using your view a specific case might be WOTC being 'the Contributors' for the SRD 5.1)

For instance, WotC made an offer in respect of the OGC it declared in its various SRDs some number of years ago (different numbers of years for different SRDs). But probably some publisher published something under the OGL, licensed by WotC, just last week (or last month or whenever), and that publisher made its offer at that point.

As I've noted - the point you are bringing up here isn't related to the content of my post. That's a different discussion and one I'm not trying to have again right now.

What downstream consequences?

I can't work out what legal state of affairs you're setting out to describe, and so I can't work out what legal consequences you think might follow from it.

My proposition isn't complicated here. WOTC is the sole licensor of the SRD 5.1 under the OGL 1.0a. If you are using SRD 5.1 content then you are licensed with WOTC, no matter if I received my copy of SRD 5.1 from 'not WOTC'.

But frankly I don't understand why you and some other posters are making such heavy weather of relatively clear elements of the OGL.

1. To explore other potential interpretations
2. Because I think at least some parts of current interpretations are incorrect.

W(otC) offers to license elements of its SRD (ie the ones it notifies as OGC) pursuant to the terms of the OGL v 1.0a. Parties who take up that offer enter into a contractual relationship with WotC. The contract includes conferral on them of a power to license the OGC, and derivative material of that OGC, to downstream parties. They are also contractually obliged to offer such a licence to all the world, in the terms of the OGL. (Under section 9, they have a power to pick and choose among authorised variants when they do this. In practice, this has not turned out to be very significant because there are only two variants and everyone seems to prefer to use v 1.0a because it provides clearer protection of Product Identity.)

They - assuming you are referring to the licensees - are not the licensors of OGC under the OGL 1.0a. The Contributors, aka the copyright holders, are the licensors under the OGL 1.0a. Licensses do not hold the copyrights. Thus, licensees do not make any offers relating to the OGC in OGL 1.0a.

The view that WOTC licenses SRD 5.1 content to me and then I sublicense it to you under the OGL 1.0a is flat out incorrect.

 

[FrogReaver]

What 5e book did they put it in?

SRD 5.1

 

[pemerton]

It's obvious. Please stop the 50,000 question pedantry.

Obvious again - Any given Contributor's offer. It's really not complicated. Which is why the 50,000 question pedantry is so annoying.

It's not obvious to me. You are trying to talk about legal relationships but not using clear terms of legal analysis.

My proposition isn't complicated here. WOTC is the sole licensor of the SRD 5.1 under the OGL 1.0a. If you are using SRD 5.1 content then you are licensed with WOTC, no matter if I received my copy of SRD 5.1 from 'not WOTC'.

<snip>

They - assuming you are referring to the licensees - are not the licensors of OGC under the OGL 1.0a. The Contributors, aka the copyright holders, are the licensors under the OGL 1.0a. Licensses do not hold the copyrights. Thus, licensees do not make any offers relating to the OGC.

This is an illustration of my point. You are running together two distinct meanings of "licensor":

* The party whose IP rights are licensed;

* The party whose conduct brings about the licensing of certain IP rights.​

The whole point of the OGL - what makes it "viral" - is that downstream parties can engage in conduct which licenses (in the sense of my second dot point) IP belonging to upstream parties, whose IP is thereby licensed (in the sense of my first dot point). This is what is meant by a sub-licence.

You also seem to be running together X enjoys a licence to use WotC's IP with X has entered into a contract with WotC that grants a licence to use WotC's IP. As per my post that you replied to, there can probably be instances of the first that are not instances of the second.

The view that WOTC licenses SRD 5.1 content to me and then I sublicense it to you under the OGL 1.0a is flat out incorrect.

No it's not. What's incorrect is your belief about how legal powers to confer licences to use IP work. You appear not to recognise that one party can confer on another party a power to confer a licence on a third party in respect of the first party's IP.

I think at least some parts of current interpretations are incorrect.

To be blunt, your posts reveal that you don't have the expertise to make that sort of judgement.