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

[S'mon]

I understand that. I guess the question to explore is can you contractually bind yourself to make an offer in the future. Do you think it's never possible to do that, or just not possible in these circumstances?

AFAICS yes, you can certainly contract with A, promising that in future you will offer to contract with B. And B could be 'everyone'. You could revoke your offer to contract with B, but then you'd be in breach of your contract with A.

 

[rpd9803]

Welcome to the absolute hellscape that is license compatibility analysis and linking exceptions, I guess.

Yes it is certainly hell, but I understand (as a software developer, not a lawyer!) accepting this complexity to ensure a product you have produced is Open and STAYS Open.. If I have written a (say) GPL implementation of X, I DON'T want Google to be able to fork X, improve it, and license their improved derivative in a closed fashion.

Luckily they used CC-BY i guess. No share alike. Share alike would have been a bad thing for 3pp since IP and OGC cannot be separated in a work like it can under OGL. So it would have been the whole derivate/adapted work that must be licensed the same way when using the SA (Share Alike).

You can separate it by clearly indicating which portions of the text are SA and which are not. I understand that is an inconvienence for publishers, but this OGL-inspired split of game mecahnics and product identity seem to be fuzzy in a way that is not favorable to people looking to build upon open work.. this may be where my lack of legal understanding takes over, but to me splitting those two concepts seems somewhat subjective, and therefore worse for clear Open licensing than explicit licenses.

I think the -SA part of the argument really pulled into focus the true issue at hand.. what was couched by the creator community as "WOTC wants to take away your freedom!" was actually "WOTC Wants to take away third-party commercial partners abilities to use WOTC IP under the old terms and replace them with terms more favorable to WOTC"

Which like, that may be naughty word for those 3pp but I'm not going to cancel my DNDB subscription over it, just like I didn't sell my iPhone when
Apple and Epic got into their spat.

 

[FrogReaver]

AFAICS yes, you can certainly contract with A, promising that in future you will offer to contract with B. And B could be 'everyone'. You could revoke your offer to contract with B, but then you'd be in breach of your contract with A.

That was my perspective as well.

For me the final piece of that puzzle is - since this would simply be breach of contract the following would be true if i understand correctly:
1. Only parties to that contract could take legal action regarding the breach. B would have no legal standing.
2. The likely outcome of the suit for breach would be termination of the contract instead of forced compliance to the license terms.

On 2nd thought, presumably the automatic nature of the future offer to B precludes me from being able to breach the contract that way?

 

[pemerton]

AFAICS yes, you can certainly contract with A, promising that in future you will offer to contract with B. And B could be 'everyone'. You could revoke your offer to contract with B, but then you'd be in breach of your contract with A.

And this won't do for the CC, I don't think. It wants the offer to actually occur automatically, not just be the subject-matter of a contractual promise.

No action is required per the license - it's automatic. Or if we go back to first principles - the act of forming the license agreement with their first licensee was the action the licensor took.

<snip>

The original offer is to an indefinite and unknowable number of parties who are only identified when they share your material or adapted material from it. If it's not a problem with the original offer then why would that be a problem here?

The original offer is an offer to the world that the offeror can withdraw at any time, just as the CC FAQ explains.

But the automatic offer is not an offer to the world, nor even (as per S'mon's post) something that the licensor has promised to do which it would be a breach of contract not to do. It is meant to be an actual thing that actually occurs, each time a party receives the licensed material.

I guess the question to explore is can you contractually bind yourself to make an offer in the future.

I don't think that's what this is. WotC has not promised each licensee to make an offer, every time that licensee distributes the material, to the material's recipient. It has created a machinery of "automatic offer" that are outside its control, even if it changes its mind.

In the case of the OGL I can see how this works, because there is a permission to sub-licence as part of the licence terms, which can't be unilaterally revoked. Whereas this is a bit more opaque to me.

 

[pemerton]

In regards to the CC licenses, there might be some illuminating decisions that touch on the subject. I haven't read them all.

CC Legal Database

This database contains case law and legal scholarship about CC licenses and the issues that relate to their enforceability and interpretation.

legaldb.creativecommons.org

I already had a look through the list of materials earlier today. It didn't seem to have a lot of on-point material.

 

[pemerton]

I think the -SA part of the argument really pulled into focus the true issue at hand.. what was couched by the creator community as "WOTC wants to take away your freedom!" was actually "WOTC Wants to take away third-party commercial partners abilities to use WOTC IP under the old terms and replace them with terms more favorable to WOTC"

Which like, that may be naughty word for those 3pp but I'm not going to cancel my DNDB subscription over it, just like I didn't sell my iPhone when Apple and Epic got into their spat.

I don't have a DNDB subscription to cancel - as I've mentioned in this or another thread, the last WotC product I recall purchasing was Into the Unknown about 10 years ago.. But I do agree with your first para. This is why I've characterised this as a commercial licensing dispute.

 

[FrogReaver]

You can separate it by clearly indicating which portions of the text are SA and which are not. I understand that is an inconvienence for publishers, but this OGL-inspired split of game mecahnics and product identity seem to be fuzzy in a way that is not favorable to people looking to build upon open work.. this may be where my lack of legal understanding takes over, but to me splitting those two concepts seems somewhat subjective, and therefore worse for clear Open licensing than explicit licenses.

Only if it's separatable and the rest of your work isn't an adaptation/derivative. For alot of content it would be a clear adaption/derivative and under SA you must license those with a SA.

I think the -SA part of the argument really pulled into focus the true issue at hand.. what was couched by the creator community as "WOTC wants to take away your freedom!" was actually "WOTC Wants to take away third-party commercial partners abilities to use WOTC IP under the old terms and replace them with terms more favorable to WOTC"

Which like, that may be naughty word for those 3pp but I'm not going to cancel my DNDB subscription over it, just like I didn't sell my iPhone when
Apple and Epic got into their spat.

I don't. The whole backlash was from WOTC trying to pull the rug out from under everyone. You can whitewash that by calling it 'favorable terms' if you want, but it was far more than that.

 

[pemerton]

That was my perspective as well.

For me the final piece of that puzzle is - since this would simply be breach of contract the following would be true if i understand correctly:
1. Only parties to that contract could take legal action regarding the breach. B would have no legal standing.
2. The likely outcome of the suit for breach would be termination of the contract instead of forced compliance to the license terms.

On 2nd thought, presumably the automatic nature of the future offer to B precludes me from being able to breach the contract that way?

Your second thought is why I don't think the "automatic offer" is intended to simply impose a contractual obligation on the licensor to make the offer. The intention of the drafting seems to be to take the licensor out of it all together, but not by way of conferring a power to sub-license on the licensee.

 

[rpd9803]

AFAICS yes, you can certainly contract with A, promising that in future you will offer to contract with B. And B could be 'everyone'. You could revoke your offer to contract with B, but then you'd be in breach of your contract with A.

Forgive my non-lawyerness, But does this speak to the difference in revocation and 'authorization' (as the OGL seemed to couch 'current offer' for lack of better lawyer words) .. as in, it seems the OGL to me did not assert or oblgiate WOTC to offer it as-is forever, only that once a work decided to use it, the terms would apply in perpetuity?

It seems the layperson DND community drew the conclusion that 'revocation' was related to 'offered' instead of governing existing agreements, and that no clear language seemed to exist around precisely the terms of the offering of the OGL..
And it seems like the CC-BY gets around that by basically saying "if anyone has a copy that has the CC-BY on it, its still CC-BY" essentially.

Sorry if my understanding or vernacular is elementary! I am but a humble software developer.

 

[FrogReaver]

Your second thought is why I don't think the "automatic offer" is intended to simply impose a contractual obligation on the licensor to make the offer. The intention of the drafting seems to be to take the licensor out of it all together, but not by way of conferring a power to sub-license on the licensee.

I get your reservations - it's a fairly unique clause.

I would separate it into 2 parts.
1. Can you contractually agree to make an offer in the future. - we all agree this is possible i think
2. Can you contractually agree an offer in the future will be automatic. -i think this is really what is giving you pause?

 

[rpd9803]

Only if it's separatable and the rest of your work isn't an adaptation/derivative. For alot of content it would be a clear adaption/derivative and under SA you must license those with a SA.

I don't. The whole backlash was from WOTC trying to pull the rug out from under everyone. You can whitewash that by calling it 'favorable terms' if you want, but it was far more than that.

Everyone seems hyperbolic, as a player that doesn't use much OGL content (basically only when I run a DCC funnel), its not pulling the rug out from me, its only pulling the rug out from under people that publish works under the OGL, which is not the community but mayyyyyyybe .05%? There are millions of DND players. The WOTC's aren't going to show up on my doorstep and burn my OGL books.

 

[FrogReaver]

Forgive my non-lawyerness, But does this speak to the difference in revocation and 'authorization' (as the OGL seemed to couch 'current offer' for lack of better lawyer words) .. as in, it seems the OGL to me did not assert or oblgiate WOTC to offer it as-is forever, only that once a work decided to use it, the terms would apply in perpetuity?

It seems the layperson DND community drew the conclusion that 'revocation' was related to 'offered' instead of governing existing agreements, and that no clear language seemed to exist around precisely the terms of the offering of the OGL..
And it seems like the CC-BY gets around that by basically saying "if anyone has a copy that has the CC-BY on it, its still CC-BY" essentially.

Sorry if my understanding or vernacular is elementary! I am but a humble software developer.

The running theory on OGL is that it functioned via granting rights to sublicense and thus took WOTC out of it for downstream parties altogether. This is different than the running theories for the CC-BY, despite quite a few similarities in the licenses.

 

[FrogReaver]

Everyone seems hyperbolic, as a player that doesn't use much OGL content (basically only when I run a DCC funnel), its not pulling the rug out from me, its only pulling the rug out from under people that publish works under the OGL, which is not the community but mayyyyyyybe .05%? There are millions of DND players. The WOTC's aren't going to show up on my doorstep and burn my OGL books.

If your moral compass doesn't say that's outright wrong, I don't think we are going to agree on much.

 

[pemerton]

I get your reservations - it's a fairly unique clause.

I would separate it into 2 parts.
1. Can you contractually agree to make an offer in the future. - we all agree this is possible i think
2. Can you contractually agree an offer in the future will be automatic. -i think this is really what is giving you pause?

Yes. As I've mentioned in several posts, I am trying to understand the legal mechanism of the "automatic offer". My own thinking hasn't progressed beyond agency, but I'm not all that satisfied with that as an analysis. (Partly because I worry about the fiduciary aspect, which clearly the CC licence does not intend or contemplate.)

Forgive my non-lawyerness, But does this speak to the difference in revocation and 'authorization' (as the OGL seemed to couch 'current offer' for lack of better lawyer words) .. as in, it seems the OGL to me did not assert or oblgiate WOTC to offer it as-is forever, only that once a work decided to use it, the terms would apply in perpetuity?

It seems the layperson DND community drew the conclusion that 'revocation' was related to 'offered' instead of governing existing agreements, and that no clear language seemed to exist around precisely the terms of the offering of the OGL..
And it seems like the CC-BY gets around that by basically saying "if anyone has a copy that has the CC-BY on it, its still CC-BY" essentially.

With the OGL, WotC is not obliged to offer in perpetuity, but every licensee is obliged to offer to license the OGC by way of sub-license, and they make the offer by using the OGC and thus becoming bound by the terms of the OGL.

The CC-BY takes out the sub-licensing device, and tries to have it that every downstream transmission of the material generates an offer directly from the licensor (ie an "automatic offer").

 

[rpd9803]

The running theory on OGL is that it functioned via granting rights to sublicense and thus took WOTC out of it for downstream parties altogether. This is different than the running theories for the CC-BY, despite quite a few similarities in the licenses.

I think I understand what you're getting at. The complexity of these liceneses seem like a big trap for young players.. I see CC-BY-4.0, I know pretty well what I can and can't do with that content.. if I see OGL (or presumably the "ORC" or whatever else) and its immediately unclear to me what I can do with what part of a textual description of a spell, for but once example.

I think as a software developer, its easier for me to draw a circle around mechanics vs content/flavor/"Product Identity" than most, but I would love a licnese that makes clear that the mechanics (data structures / formulas) are free and can't be "captured" by closed licensing, but license the flavor any way you choose as a publisher, and leave the decision to me to decide whether or not I purchase it considering the work and the terms of its purchase.

 

[FrogReaver]

Yes. As I've mentioned in several posts, I am trying to understand the legal mechanism of the "automatic offer". My own thinking hasn't progressed beyond agency, but I'm not all that satisfied with that as an analysis. (Partly because I worry about the fiduciary aspect, which clearly the CC licence does not intend or contemplate.)

I think my disconnect here is I don't understand why it cannot simply be a contractual mechanism. (I tend to think of contractual as legal but I think for you there is a distinction).

 

[pemerton]

I think I understand what you're getting at. The complexity of these liceneses seem like a big trap for young players.. I see CC-BY-4.0, I know pretty well what I can and can't do with that content.. if I see OGL (or presumably the "ORC" or whatever else) and its immediately unclear to me what I can do with what part of a textual description of a spell, for but once example.

My view, admittedly based on limited sampling, is that many publishers who use the OGL are not very clear in their declarations of OGC and Product Identity.

 

[rpd9803]

If your moral compass doesn't say that's outright wrong, I don't think we are going to agree on much.

My moral compass doesn't read strongly on anything that happens with rules for organizing make-believe with your friends, but that strikes me as a poor indicator of whether or not we'd agree on things.

 

[FrogReaver]

I think I understand what you're getting at. The complexity of these liceneses seem like a big trap for young players.. I see CC-BY-4.0, I know pretty well what I can and can't do with that content.. if I see OGL (or presumably the "ORC" or whatever else) and its immediately unclear to me what I can do with what part of a textual description of a spell, for but once example.

I think as a software developer, its easier for me to draw a circle around mechanics vs content/flavor/"Product Identity" than most, but I would love a licnese that makes clear that the mechanics (data structures / formulas) are free and can't be "captured" by closed licensing, but license the flavor any way you choose as a publisher, and leave the decision to me to decide whether or not I purchase it considering the work and the terms of its purchase.

I have fewer questions about OGL material and how the OGL license works and where those lines are than I do about CC-BY. That said I've had a good 2 week head start reading on the OGL. So i think it mostly boils down to familiarity.

 

[FrogReaver]

My moral compass doesn't read strongly on anything that happens with rules for organizing make-believe with your friends, but that strikes me as a poor indicator of whether or not we'd agree on things.

There you go again with the whitewash.