I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."
I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.
You think writing a contract is like writing legislation? I think
@pemerton would have a thing or two to say about that!
The issue of how a legislator can bind itself - in Australia, the UK and some other Commonwealth jurisdictions this is the issue of "manner and form" - doesn't seem to me to bear much on contract law. Because it's pretty clear how a private party can bind themself at common law: make an agreement with the intention to enter legal relations, with a meeting of minds over that bargain, and consideration in both directions. And to me the OGL seems to exhibit that character.
I'm not sure I agree with
@DavyGreenwind that the consideration flowing from licensees under the OGL is not much - they agree to allow use of their copyrighted OGC by downstream users, and confer on those downstream users the authority to create further sub-licenses. (But I don't how important adequacy of consideration is in US contract law, either in general or in the licensing context.)
Similarly to
@S'mon (who I've discussed this with before, including recently in the "not an open license" thread), I've got doubts that WotC can unpick all those contract unilaterally.
Yes, a law can be revoked, but you GENERALLY can't say after the fact that something was illegal if it happened during a period when the law clearly said it was legal.
This depends on the constitutional rules in a given jurisdiction. In the UK, for instance, there are no bars on retrospective legislation. In Australian that's also mostly the case, and retrospective legislation is relatively unremarkable.
An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.
Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.
It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.
The open license will always be valid for any products published while the open license was open. WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any new material as of the date it was revoked.
I agree that WotC can revoke its unilateral offer at any time, and I've posted the same on these boards many times over the years. I'm not so sure, though, that it can unilaterally withdraw the authority conferred on existing licensees to sub-license, especially as section 13 of the OGL v 1.0/1.0a provides that all sub-licences shall survive termination.
Although, having written the above, I can see two arguments to the contrary: (i) the reference to termination is implicitly confined, in virtue of its context, to termination for breach; (ii) sub-licences survive, and hence parties who (eg) contracted directly with Paizo but only indirectly with WotC retain rights to distribute their existing products, but no new sub-licences can be granted.
Yes, I'm aware of the parol evidence rule. I teach it.
It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.
Yes, but you need to consider this kind of open-source licence, and how courts have treated them. There is no cast iron rule that 'perpetual' means 'revocable'. And it's clear the expressed intent in 2000 was to make it non-revocable.
At the very least, Reliance/Promissory Estoppel applies to existing users of the licence. This is a strong defence in English law; the US lawyer I'm listening to just said exactly the same for US Contract law.
The leading case in Australia on promissory estoppel as analogous to waiver is Commonwealth v Verwayen. It concerned representations made in the course of pre-litigation negotiations, together with policy statements by the responsible minister. (The case concerned personal injury litigation resulting from a collision between two Australian naval vessels.) Chief Justice Mason referred to "a deliberate and considered decision ha[ving] been mad" by the Commonwealth as a defendant, and also noted "express representations to some claimants".
Do you think the FAQ is enough?
