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

pemerton

Legend
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..
Here's a simpler, somewhat analogous example.

I agree to let you stay in my house for the weekend, in exchange for paying me $500. Thus, I grant you a contractual licence to stay in my house. You ask, during the course of our negotiations, Can I have people over? and I say "Yes, up to 5 people at a time".

So you ask 5 friends over, but insist that each of them pay you $100 for the privilege.

In this scenario you don't own my house. All you have is a licence. You also have a power to issue sub-licences. And you are making offers to your friends to grant such sub-licences in exchange for $100.

The relevant point is that the capacity to establish a license doesn't depend upon owning the property right. That is one way to enjoy such a capacity. But another way is to have had the owner grant you a power to issue sub-licences. And if you have that power, then everything else being equal you can make an offer to exercise that power in another's favour, as your grant of consideration to give rise to a contract between you and that other party.
 

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FrogReaver

As long as i get to be the frog
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.
I understand that’s your interpretation. It’s not mine. Restating our positions ad infinitum will get us nowhere.
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.
WOTC also affixed the section 2 notice. Not just the section 8 notice.

Maybe a question. When does something become OGC? When it’s designated as such? When it’s distributed as such? When a licensee accepts it as such?

My view would be when it’s designated as OGC and includes the necessary notices. What is yours?
This has nothing to do with WotC being under any legal obligation to provide any notice of anything.
Good thing I’m not making the claim they had a legal obligation to do anything then.
 

FrogReaver

As long as i get to be the frog
Here's a simpler, somewhat analogous example.

I agree to let you stay in my house for the weekend, in exchange for paying me $500. Thus, I grant you a contractual licence to stay in my house. You ask, during the course of our negotiations, Can I have people over? and I say "Yes, up to 5 people at a time".

So you ask 5 friends over, but insist that each of them pay you $100 for the privilege.

In this scenario you don't own my house. All you have is a licence. You also have a power to issue sub-licences. And you are making offers to your friends to grant such sub-licences in exchange for $100.

The relevant point is that the capacity to establish a license doesn't depend upon owning the property right. That is one way to enjoy such a capacity. But another way is to have had the owner grant you a power to issue sub-licences. And if you have that power, then everything else being equal you can make an offer to exercise that power in another's favour, as your grant of consideration to give rise to a contract between you and that other party.
I agree. But the licensing agreement would specify you as the licensor, not the owner, are licensing the use of the property to the ‘friends’.

The analogy would be more complete if within that licensing agreement you as the initial licensee provided them said the owner licenses the friends to be in the house. That’s how it would mirror the OGL 1.0a.

In this case it’s clearly the owner doing all the licensing.
 


Maxperson

Morkus from Orkus
It's obvious. Please stop the 50,000 question pedantry.
It's not obvious. When you use phrases like, "in legal terms" you are making a statement about how the law works. Specific legal terms and processes that mean something in law. You have yet to provide a single legal process that would back you up.

If I were to make a claim about something in the license and say to @pemerton, and this is backed up by X statute and Y case is substantially similar, he would have something to go on. Even if he didn't remember the process or it was something distinctly American in nature, he could look at it and then formulate a reply. He might agree, disagree or be unsure and let me know that he had to think about it, but at least I would have provided him something.
 

FrogReaver

As long as i get to be the frog
It's not obvious. When you use phrases like, "in legal terms" you are making a statement about how the law works. Specific legal terms and processes that mean something in law. You have yet to provide a single legal process that would back you up.

If I were to make a claim about something in the license and say to @pemerton, and this is backed up by X statute and Y case is substantially similar, he would have something to go on. Even if he didn't remember the process or it was something distinctly American in nature, he could look at it and then formulate a reply. He might agree, disagree or be unsure and let me know that he had to think about it, but at least I would have provided him something.
Private law contracts. Done.
 


pemerton

Legend
The analogy would be more complete if within that licensing agreement you as the initial licensee provided them said the owner licenses the friends to be in the house. That’s how it would mirror the OGL 1.0a.
Let X be the owner. Let L be the initial licensee. Let F be the friends. How do you envisage X directly issuing a licence to F, whom X has never met and doens't even know exists?

I'm not saying there is no answer to this. But you aren't providing one.

There are two mechanisms I can think of, whereby F gets a licence to be on X's property. One is for F to make L an agent. The other is for F to give L a power to sub-license. The OGL doesn't say anything about appointing agents. (Except in section 9.) But it does confer an entitlement to use, which expressly encompasses a power to licence. So to me it seems pretty clear.

WOTC also affixed the section 2 notice. Not just the section 8 notice.
Section 8 has no application when WotC offers to licenses (parts of) the SRD. Section 8 is a licence term that imposes an obligation on parties who distribute OGC. There is, perhaps, an argument that it is engaged when they distribute OGC in which they own the copyright, and which is not, when published, a distribution of anyone else's OGC (because not derivative of anyone else's OGC). But that obligation is in practical terms irrelevant, because in that circumstance section 2 does all the work. The actual purpose of section 8 is to ensure that downstream parties clearly identify, as OGC, that OGC in which upstream parties have an interest.

When WotC offers to license (parts of) the SRD in terms of the OGL, it is section 2 which is apposite, because section 2 is where WotC sets out a crucial term of its offer, namely, that "This License applies to [the] Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License." Section 2 also states obligations that are incurred by parties who take up WotC's offer.

Maybe a question. When does something become OGC? When it’s designated as such? When it’s distributed as such? When a licensee accepts it as such?

My view would be when it’s designated as OGC and includes the necessary notices. What is yours?
By "designation" I take you to mean WotC specifying what parts of its SRD it is prepared to license as OGC in the terms set out in the OGL. This is a statement of an offer. It is a specification of what content WotC is prepared to licence, and the OGL sets out the terms of the offer. A piece of copyrighted text actually becomes OGC when it is governed by contractual obligations that deploy the concept of OGC. The concept of Open Game Content has no meaning outside such a contractual context. And no contract comes into being until an offer is accepted.

I understand that’s your interpretation. It’s not mine. Restating our positions ad infinitum will get us nowhere.
The difference is that I am actually setting out interpretations that are explained using the standard common law concepts of contract law, property law and contractual interpretation. You are not using any clear legal notions. You say stuff that makes no clear legal sense. I do my best to conjure some genuine legal meaning out of it (eg that you think the OGL is a pooling agreement; that you think the OGL makes downstream licensees agents of upstream licensors; that you are supposing an offer in itself to have the legal force and effect of a contract) and then explain why that is not the case. And all you do is reiterate your assertion without actually engaging with the legal reasoning.

I understand why you don't engage with the legal reasoning - you lack the expertise to do so. What I don't understand is why you continue to confidently assert your view. What do you think you are adding to peoples' understanding of their rights and obligations under the OGL?
 
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pemerton

Legend
Private law contracts. Done.
What does this mean? You clearly don't grasp the difference between an offer, and a contract that results from an offer being accepted. You can't explain what consideration is, or how the OGL establishes a contract by having consideration flow in both directions. You can't articulate the difference between the contract and the licence that it establishes, and the way different parties might be involved in these various legal states of affairs.

The purpose of this thread was to support informed discussion of the OGL. I don't agree with everything the OP has posted, but all @DavyGreenwind's posts are clearly expressed, using orthodox legal reasoning. They all make sense.

I don't understand what you think you are contributing by essentially making stuff up that bears little connection to actual modes of legal analysis and legal reasoning in the private law of the US and other common law jurisdictions.
 

pemerton

Legend
Hell, I don't have the expertise to make that sort of judgement and I'm a paralegal who has a greater understanding of the law than the average person.
If your paralegal work encompasses dealing with contract-making and similar sorts of agreements, then I'd imagine that most of what I'm saying at least makes sense, whether or not you feel competent to judge if I'm right or wrong.
 

SoonRaccoon

Explorer
Hopefully I can summarize.

WotC publishes the D&D SRD, and offers to license the work to anyone out there under the OGL. Alice publishes her own game based on the D&D SRD, Elves and Elementals. By doing so, she accepts WotC's offer, and this forms a contract between WotC and Alice, where WotC is the licensor and Alice is the licensee.

Evil Hat publishes the Fate SRD and also offers that work under the OGL. Bob publishes his own game based on the Fate SRD. By doing so, he accepts Evil Hat's offer, and forms a contract between Evil Hat and Bob, were Evil Hat is the licensor and Bob is the licensee.

At no point did WotC become a licensee of Evil Hat's Fate SRD. The WotC/Alice contract and the Evil Hat/Bob contract are independent, even though both the D&D SRD and the Fate SRD are both licensed as OGC under the OGL. WotC would have to do something (e.g. republish) the Fate SRD to accept Evil Hat's offer.

In order to comply with the OGL, Alice and Bob must each offer their own OGC under the OGL for use by other people to use. Just as WotC is not a licensee of the Fate SRD, WotC is similarly not a licensee of Alice's or Bob's OGC unless Wotc does something (e.g. republish) that would constitute accepting the offers from Alice or Bob. There is no automatic pooling of all OGC making everyone a licensee of everyone else.

(edits for clarity)
 

FrogReaver

As long as i get to be the frog
What does this mean? You clearly don't grasp the difference between an offer, and a contract that results from an offer being accepted.
You keep saying this and yet it's 100% untrue. Like you imagine positions to beat down and assign them to me even though I don't actually take them.

I'm sure there's enough positions I legitimately take that you can beat down that you don't need to assign ones to me that I don't hold.

You can't explain what consideration is,
Yes I can. Though probably not as fully as you.

or how the OGL establishes a contract by having consideration flow in both directions.
Explaining the consideration flowing both ways I'm not as sure on, maybe I could explain that.

You can't articulate the difference between the contract and the licence that it establishes,
I'm even less confident here, but I think I might could - again not as well as you or another legal professional.

and the way different parties might be involved in these various legal states of affairs.
This seems very broad and so I'm not entirely sure what you mean here.

The purpose of this thread was to support informed discussion of the OGL. I don't agree with everything the OP has posted, but all @DavyGreenwind's posts are clearly expressed, using orthodox legal reasoning. They all make sense.
We are 126 pages into the discussion and only 5 or so of us are currently posting. I think the original intent of the OP has sailed at this point.
 

Maxperson

Morkus from Orkus
Why does it need to be a book?
Because putting it in a book would show that they are putting out that work through the license. The license would apply to WotC.

There are two exceptions from prior editions(I THINK both are from 3e) that I've heard about where WotC put the notice into a book. The 3e Unearthed Arcana is the one that I looked at. The existence of these two exceptions very strongly implies that the OGL 1.0a doesn't generally apply to WotC. WotC probably used material in those books that someone else created.

If you were correct that WotC was bound by their own license, the required notice would have been in every 3e, 4e and 5e book that they made.
 

FrogReaver

As long as i get to be the frog
I don't understand what you think you are contributing by essentially making stuff up that bears little connection to actual modes of legal analysis and legal reasoning in the private law of the US and other common law jurisdictions.
Ah. That's just the way I talk. I believe that if someone disagrees with my assertions, they will tell me why. I'm not nearly as certain as I sound. I do find the best feedback comes when I'm not wishy washy in my posts about a position I want to explore. I am open to having my mind changed.

One thing that would move the needle for me on my most recent assertion would be to show other sublicense contracts that the thing being licensed is done so by the owner and yet it's clearly shown to be considered a sublicense agreement.
 


Maxperson

Morkus from Orkus
If your paralegal work encompasses dealing with contract-making and similar sorts of agreements, then I'd imagine that most of what I'm saying at least makes sense, whether or not you feel competent to judge if I'm right or wrong.
It doesn't. Most of this I'm just sort of remembering from school. I've worked in personal injury and employment(wage and hour). At the employment firms I worked at I only saw a few employment contracts, because they were primarily wage and hour firms.
 

pemerton

Legend
It doesn't. Most of this I'm just sort of remembering from school. I've worked in personal injury and employment(wage and hour). At the employment firms I worked at I only saw a few employment contracts, because they were primarily wage and hour firms.
I don't know about employment stuff - especially in the US, which is pretty different from Australia in its employment law.

In personal injury, I'd expect the facts to be nearly everything, rather than these more technical questions about interpretation of contractual terms.
 

FrogReaver

As long as i get to be the frog
Hopefully I can summarize.

WotC publishes the D&D SRD, and offers to license the work to anyone out there under the OGL. Alice publishes her own game based on the D&D SRD, Elves and Elementals. By doing so, she accepts WotC's offer, and this forms a contract between WotC and Alice, where WotC is the licensor and Alice is the licensee.

Evil Hat publishes the Fate SRD and also offers that work under the OGL. Bob publishes his own game based on the Fate SRD. By doing so, he accepts Evil Hat's offer, and forms a contract between Evil Hat and Bob, were Evil Hat is the licensor and Bob is the licensee.

At no point did WotC become a licensee of Evil Hat's Fate SRD. The WotC/Alice contract and the Evil Hat/Bob contract are independent, even though both the D&D SRD and the Fate SRD are both licensed as OGC under the OGL. WotC would have to do something (e.g. republish) the Fate SRD to accept Evil Hat's offer.

In order to comply with the OGL, Alice and Bob must each offer their own OGC under the OGL for use by other people to use. Just as WotC is not a licensee of the Fate SRD, WotC is similarly not a licensee of Alice's or Bob's OGC unless Wotc does something (e.g. republish) that would constitute accepting the offers from Alice or Bob. There is no automatic pooling of all OGC making everyone a licensee of everyone else.

(edits for clarity)
For the record I understand the position. I can understand it and not agree with it.
 


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