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

[FrogReaver]

isn’t the fact that B licensed from both A and WotC rather than from either already contradicting this?

Or is that just your concession rather than your understanding?

More concession. Again I understand both so I feel free to talk about how that view functions, though I understand that can get a bit confusing at times.

 

[FrogReaver]

It feels like that is a pretty fundamental issue, ie if you get that one wrong all conclusions you build upon it are bound to be wrong as well. Maybe that one needs sorting out first and that is why it keeps coming up

Ideally yea. But no progress seems to be made there. It’s mostly boiled down to just reasserting the same stuff again and again.

I’m not opposed to revisiting but it has to be more talk and listening than is currently being done. I think we can discuss positions on the hypothetical if this is true basis in absence of clear agreement I think that’s all we can do.

 

[FrogReaver]

Regarding consideration flowing both ways under the OGL 1.0a, this is achieved by Section 7, which severely restricts the licensee's normal rights of fair use in regards to trademarks and the declared Product Identity.

That’s a better answer than I would have initially given. I would have used the idea that the OGL has helped WOTC maintain market dominance as the consideration flowing WOTCs way.

 

[Aspirinsmurf]

That’s a better answer than I would have initially given. I would have used the idea that the OGL has helped WOTC maintain market dominance as the consideration flowing WOTCs way.

As far as I can understand, that might be considered quantum meruit. But we don't need to go there. The OGL clearly describes a situation of reciprocal consideration. It's a quid pro quo. I get to use your OGC in exchange for not using your PI or trademarks at all without a separate agreement. And you get to use my OGC too, if you want to, under the same terms (see e.g. Unearthed Arcana from the 3e era, where WotC did exactly that).

 

[Enrahim2]

I think I would like to take a shot at describing what I understand to be @FrogReaver 's position in terms of the neccessary component my understanding has to be present accordning to @pemerton 's exeedingly patient and informative answers. I am not a legal scholar, so I likely will mess this up, but I hope I can bring it at least one step closer to legal formulation.

I also would like to stress that I have been successfully convinced that this is not a reasonable interpretation of the OGL. This is mainly to try to bring clearity and hopefully some closure.

Assume we ignore the issue with the first publication of OGC by wizards for now, and look at the point in time where the first person A is applying the OGL to a work containing a combination of A's and WotC OGC. At this point WotC and A is in a obvious contractual relationship. However the mechanisms proposed by FrogReaver appear to require the following parts of the agreement:
(1) - Both WotC and A agree that all future offers they make of the OGL will "name" both A and WotC as licensors.
(2) - Whenever someone new is publishing any OGC A and WotC promise to add them to the list of parts of their offers
(3) - Whenever someone new is publishing any OGC A and WotC agree to effectively update the terms of their active contract to "name" the new entity a part of the contract.
Hence when next B is publishing a combination of B and WotC OGC, they are entering a legal relationship with both A and WotC, as that is what is stated in the offer from WotC. Moreover they agree to be entered into the offer and contract terms as outlined in (1)-(3) above. Hence:
(a) - Both B and WotC agree that all future offers from them will name A, B and WotC as part of the contract
(b) - All offers from A is also updated to include A, B and WotC of part of the contract (per the agreement under (2) )
(c) - The active contract between A and WotC is updated to also name B as a licensor, and part of the contract.
Under this scheme I believe it should be well defined who is parts in what contracts at any given time. However as I said I don't think this is going to work out.

The most glaring issue with this with regard to FrogReavers attempt at binding WotC contractually to the SRD is that while it might appear to be able to scale up inductively, it do not scale down to 1. A contract need to have two legal entities with the power to enter into contracts as parts from my understanding, and the definition of "Contributors" in the OGL is not enough to construct such an entity. And hence the bootstraping would require Wizards has to make that contract with either noone or themselves - which are clearly not working out.

Moreover I think there might be severe issues with (2) as it require "global knowledge" to concretize who the parts of an offer would be, something I would guess might be legally prohibited for practicality reasons. And I would think there also might be issues with an implicit update to a contract of the form required for mechanism (3) to work.

I hope this can contribute to sow some more clarity into the discussion. And please tell me if I am way off.

 

[FrogReaver]

I think I would like to take a shot at describing what I understand to be @FrogReaver 's position in terms of the neccessary component my understanding has to be present accordning to @pemerton 's exeedingly patient and informative answers. I am not a legal scholar, so I likely will mess this up, but I hope I can bring it at least one step closer to legal formulation.

I also would like to stress that I have been successfully convinced that this is not a reasonable interpretation of the OGL. This is mainly to try to bring clearity and hopefully some closure.

Assume we ignore the issue with the first publication of OGC by wizards for now, and look at the point in time where the first person A is applying the OGL to a work containing a combination of A's and WotC OGC. At this point WotC and A is in a obvious contractual relationship. However the mechanisms proposed by FrogReaver appear to require the following parts of the agreement:
(1) - Both WotC and A agree that all future offers they make of the OGL will "name" both A and WotC as licensors.
(2) - Whenever someone new is publishing any OGC A and WotC promise to add them to the list of parts of their offers
(3) - Whenever someone new is publishing any OGC A and WotC agree to effectively update the terms of their active contract to "name" the new entity a part of the contract.
Hence when next B is publishing a combination of B and WotC OGC, they are entering a legal relationship with both A and WotC, as that is what is stated in the offer from WotC. Moreover they agree to be entered into the offer and contract terms as outlined in (1)-(3) above. Hence:
(a) - Both B and WotC agree that all future offers from them will name A, B and WotC as part of the contract
(b) - All offers from A is also updated to include A, B and WotC of part of the contract (per the agreement under (2) )
(c) - The active contract between A and WotC is updated to also name B as a licensor, and part of the contract.
Under this scheme I believe it should be well defined who is parts in what contracts at any given time. However as I said I don't think this is going to work out.

I like the attempt but I'm really struggling to follow everything you are saying.

I don't think I agree that 1-3 are required for my view. But I’m not exactly sure how all the parts interplay. For example you talk about naming - I’m assuming that’s a reference to section 6? But you only have to name the contributors of the OGC you use. So to me that doesn’t follow.

I’d also add that ‘the contributors’ defined as contributors of OGC seem to accomplish your suggestion implicitly, albeit not explicitly.

The most glaring issue with this with regard to FrogReavers attempt at binding WotC contractually to the SRD is that while it might appear to be able to scale up inductively, it do not scale down to 1. A contract need to have two legal entities with the power to enter into contracts as parts from my understanding, and the definition of "Contributors" in the OGL is not enough to construct such an entity. And hence the bootstraping would require Wizards has to make that contract with either noone or themselves - which are clearly not working out.

I agree with the reasoning here, but I think there can be a valid legal answer to it. I'd rather focus on the first points first, but objectively this is an important part of the discussion and one I do want to address, but I fear doing so immediately will tank the rest of the discussion.

Moreover I think there might be severe issues with (2) as it require "global knowledge" to concretize who the parts of an offer would be, something I would guess might be legally prohibited for practicality reasons. And I would think there also might be issues with an implicit update to a contract of the form required for mechanism (3) to work.

I hope this can contribute to sow some more clarity into the discussion. And please tell me if I am way off.

Thanks for the attempt!

 

[FrogReaver]

pretty sure it is the same, but I added a link to the post. Here it is again

He is mostly saying 'you cannot explain X' and your reply is 'yes I can' instead of actually doing so

I’d just say - I think there’s a difference in saying you are wrong with no additional explanation in the face of personal accusations and in saying you are wrong with no additional explanation when talking about an idea.

 

[Maxperson]

Ideally yea. But no progress seems to be made there. It’s mostly boiled down to just reasserting the same stuff again and again.

I’m not opposed to revisiting but it has to be more talk and listening than is currently being done. I think we can discuss positions on the hypothetical if this is true basis in absence of clear agreement I think that’s all we can do.

Let me try this. A(WotC) licenses to B who then sublicenses to C.

It seems like your argument hinges on the first paragraph of the OGL 1.0a granting permission solely through the OGL to use the SRD. When someone sublicenses from a licensee, it's the OGL 1.0a that is granting the licensee the ability to sublicense his works to the next person down the chain.

So A licenses to B who uses SRD information in his work. Then C sublicenses from B and uses B's work which includes SRD information. C does not add any other OGC, but rather modifies it by adding only original work. C does not have to license directly to WotC for the SRD information since the OGL 1.0a requires B to make his OGC work available to everyone else. So it is through the OGL 1.0a that C gets all the information from B.

I'm not sure how it might work if C adds other SRD information. The OGL 1.0a might allow C to access the complete SRD through B's work and the sublicense, or maybe two separate licenses happen. One license and one sublicense.

 

[FrogReaver]

Let me try this. A(WotC) licenses to B who then sublicenses to C.

Okay. I'm assuming you mean B sublicenses to C under the OGL 1.0a.

If so, that claim is in dispute and thus the rest becomes circular. Your premise is your conclusion.

It seems like your argument hinges on the first paragraph of the OGL 1.0a granting permission solely through the OGL to use the SRD. When someone sublicenses from a licensee, it's the OGL 1.0a that is granting the licensee the ability to sublicense his works to the next person down the chain.

The assumption you are making is that there is sublicensing. If one assumes instead that C's license for WOTC's OGC is directly with WOTC then there is no sublicensing chain. All you are showing is that if you start with sublicensing then you can show sublicensing was necessary.

 

[Maxperson]

Okay. I'm assuming you mean B sublicenses to C under the OGL 1.0a.

If so, that claim is in dispute and thus the rest becomes circular. Your premise is your conclusion.


The assumption you are making is that there is sublicensing. If one assumes instead that C's license for WOTC's OGC is directly with WOTC then there is no sublicensing chain. All you are showing is that if you start with sublicensing then you can show sublicensing was necessary.

There is no assumption of sublicensing. The OGL 1.0a explicitly says that there is.

"13. Termination: 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. All sublicenses shall survive the termination of this License."

Where does the sublicensing come from?

"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"

You can't grant the rights conveyed by OGL 1.0a unless you are licensing to someone else. You don't grant them to yourself. You don't grant them to WotC. You grant them to the person you are licensing to via a sublicense.

 

[FrogReaver]

There is no assumption of sublicensing. The OGL 1.0a explicitly says that there is.

IMO Not directly in the sense we are talking. Perhaps implicitly though.

"13. Termination: 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. All sublicenses shall survive the termination of this License."

This is a good starting point for establishing sublicenses exist. (Something I’ve not disputed).

But the nature of those sublicenses is also important. Are the sublicenses form licensee to sublicensee in question OGL licenses or some other license agreement. establishing that there can be sublicenses alone isn’t enough.

On that point - Since the OGL only permits licensing of OGC via OGL then any sublicenses in question must be OGL licenses. The only way that could happen is if parties sublicense under the OGL terms.

I’m convinced.

Where does the sublicensing come from?

"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"

You can't grant the rights conveyed by OGL 1.0a unless you are licensing to someone else. You don't grant them to yourself. You don't grant them to WotC. You grant them to the person you are licensing to via a sublicense.

I don’t find this part persuasive. It may only mean you have a non-OGL license to sublicense material from the copyright holder anyway you see fit.

 

[Enrahim2]

I don't think I agree that 1-3 are required for my view. But I’m not exactly sure how all the parts interplay. For example you talk about naming - I’m assuming that’s a reference to section 6? But you only have to name the contributors of the OGC you use. So to me that doesn’t follow.

I’d also add that ‘the contributors’ defined as contributors of OGC seem to accomplish your suggestion implicitly, albeit not explicitly.

Exactly! What I tried there was to spell out explicitly in legal speech was how I believed your implicit reading of the "Contributors" definition.

My impression is that the big understanding gap between you and @pemerton has been that standard contract theory require all involved legal entities involved to be well defined, and normally static once the contract has been signed. Hence trying to introduce such a dynamic understanding of the parts of a contract outlined would need to be made explicit to be "understandable" (given that it might even be well known to breach some sort of basic contractual limitation, and hence not really worthwhile to consider in an educated discussion)

I am sorry about the "name". It was not a reference to section 6. Rather it was an attempt at legalese, as I for some reason seem to think that a standard formulation in legal theory is that a contract need to "name" all relevant parts. (I really don't know from where I have gotten that idea though, so I can't site any sources). As the contract at hand clearly do not "name" the parts in the common sense of the word if we are trying to accept my understanding of your interpretation, I hence included it with quotes, hoping it would improve the readability from a legalese point of view.

 

[FrogReaver]

Just so it’s clearly spelled out, I now agree with the sub licensing view of the OGL 1.0a.

 

[Maxperson]

IMO Not directly in the sense we are talking. Perhaps implicitly though.


This is a good starting point for establishing sublicenses exist. (Something I’ve not disputed).

But the nature of those sublicenses is also important. Are the sublicenses form licensee to sublicensee in question OGL licenses or some other license agreement. establishing that there can be sublicenses alone isn’t enough.

On that point - Since the OGL only permits licensing of OGC via OGL then any sublicenses in question must be OGL licenses. The only way that could happen is if parties sublicense under the OGL terms.

Sure, but they do so via the sublicense and not directly. The OGL granting the ability to sublicense means that the sublicense has still happened via the OGL, but indirectly. Here's an analogy.

A flight that is non-stop originating from Los Angeles and ending up in Houston is like a direct license from the OGL to the one who accepts the OGL terms and becomes a licensee. If that licensee sublicenses, the trip is no longer non-stop. Now it's originating only from Los Angeles, but has a layover in Texas before continuing on to New York. New York only deals with Houston. Houston only deals with Los Angeles. But it's still only from Los Angeles that the flight(Ability to use SRD 5.1) originated.

I don’t find this part persuasive. It may only mean you have a non-OGL license to sublicense material from the copyright holder anyway you see fit.

If it was, then they would not have had to state that sublicenses survive termination. They would have also been licensed directly and it would have survived that way.

 

[FrogReaver]

Sure, but they do so via the sublicense and not directly. The OGL granting the ability to sublicense means that the sublicense has still happened via the OGL, but indirectly. Here's an analogy.

A flight that is non-stop originating from Los Angeles and ending up in Houston is like a direct license from the OGL to the one who accepts the OGL terms and becomes a licensee. If that licensee sublicenses, the trip is no longer non-stop. Now it's originating only from Los Angeles, but has a layover in Texas before continuing on to New York. New York only deals with Houston. Houston only deals with Los Angeles. But it's still only from Los Angeles that the flight(Ability to use SRD 5.1) originated.

If it was, then they would not have had to state that sublicenses survive termination. They would have also been licensed directly and it would have survived that way.

You really should learn to take the win

 

[Maxperson]

My impression is that the big understanding gap between you and @pemerton has been that standard contract theory require all involved legal entities involved to be well defined, and normally static once the contract has been signed. Hence trying to introduce such a dynamic understanding of the parts of a contract outlined would need to be made explicit to be "understandable" (given that it might even be well known to breach some sort of basic contractual limitation, and hence not really worthwhile to consider in an educated discussion)

With a unilateral contract like OGL 1.0a, only one party is clearly defined and that's the originator of the contract. The OGL 1.0a was offered up to the whole public to use according to its terms, so the other party isn't defined at all until it fulfills the terms of the contract.

That's why if I wanted to publish something tomorrow, I wouldn't have to first go to WotC and let them know. I'd simply publish my work according to OGL 1.0a and WotC would either eventually find it or not.

 

[Maxperson]

You really should learn to take the win

You conceded after I started writing and before I finished helping my wife redecorate our son's room and completed the post! No fair!

 

[rpd9803]

With a unilateral contract like OGL 1.0a, only one party is clearly defined and that's the originator of the contract. The OGL 1.0a was offered up to the whole public to use according to its terms, so the other party isn't defined at all until it fulfills the terms of the contract.

That's why if I wanted to publish something tomorrow, I wouldn't have to first go to WotC and let them know. I'd simply publish my work according to OGL 1.0a and WotC would either eventually find it or not.

Hmm that's interesting, but doesn't that then mean that there's a split between "revoking" (as in, ending an OGL-licensed works authorized use of the license) and "Offering" .. like, I don't think the OGL language related to revokability, perpetuality, etc. applies to whether or not the OGL is currently offered, but the behavior of licensees that have existing agreements.. Like, since the second party isn't defined until its used.. that means WOTC can decide to not offer it without revoking or termininating any existing licenses, just the ability to license it for new works, right?

Moot now, the CC-BY seems to solve this problem pretty handily.

That also seems to be the big difference with CC licenses.. or maybe they skirt that by saying the license is irrevokable, so once the first person accepts it, THEY can share it under those terms and the original licensor can't stop them.

 

[Maxperson]

Hmm that's interesting, but doesn't that then mean that there's a split between "revoking" (as in, ending an OGL-licensed works authorized use of the license) and "Offering" .. like, I don't think the OGL language related to revokability, perpetuality, etc. applies to whether or not the OGL is currently offered, but the behavior of licensees that have existing agreements.. Like, since the second party isn't defined until its used.. that means WOTC can decide to not offer it without revoking or termininating any existing licenses, just the ability to license it for new works, right?

They tried that with the proposed 1.2 changes. They proposed in 1.2 that the current 1.0a licensees could continue on forever, and put in a 6 month grace period for new works released under 1.0a, but then after that no more could be done.

Moot now, the CC-BY seems to solve this problem pretty handily.

Yes it does. Count me among those who are shocked by this. I thought it was a possibility, but not before they tried another time or two to meet in the middle somewhere.

 

[DavyGreenwind]

I guess we will never know for sure.