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

[pemerton]

I mean not that the licence is a property, but that the derivative work is a property; and that a sub-licence is not flowing through that property, but rather a new licence is being created at that point.

I don't quite follow.

I don't know what it means for a sub-licence to "flow through" some property. Nor at what point you are positing a new licence is being created.

If the OGL does not permit sub-licences to be created, then the only party who can licence WotC's work is WotC. If WotC refuses to offer such licences, then no new ones can be created. It's clear that this was not how Dancey intended things to be. And I think the drafting achieves his intent: the definition of Use includes (via Distribute) licensing - which is to say that licensees are conferred a power to license upstream Contributors' OGC. By definition, this is a power to sub-license, because it is a power to confer a licence that is enjoyed by someone who is not an owner but a mere licensee in relation to the property at issue.

it is a chain of licences, and not a licence and chain of sub-licences.

This reads like saying it is a chain of H2O molecules rather than a chain of water molecules.

There is a chain of contracts. There is no chain of licences - licences obtain between the owner of the licensed property, and the licensee. A sub-licence is not a special sort of licence: it is a sub-licence in virtue of its mode of creation (ie by a licensee exercising a power rather than the property owner exercising a power), not in virtue of its content.

 

[clearstream]

I don't quite follow.

I don't know what it means for a sub-licence to "flow through" some property. Nor at what point you are positing a new licence is being created.

If the OGL does not permit sub-licences to be created, then the only party who can licence WotC's work is WotC. If WotC refuses to offer such licences, then no new ones can be created. It's clear that this was not how Dancey intended things to be. And I think the drafting achieves his intent: the definition of Use includes (via Distribute) licensing - which is to say that licensees are conferred a power to license upstream Contributors' OGC. By definition, this is a power to sub-license, because it is a power to confer a licence that is enjoyed by someone who is not an owner but a mere licensee in relation to the property at issue.

This reads like saying it is a chain of H2O molecules rather than a chain of water molecules.

There is a chain of contracts. There is no chain of licences - licences obtain between the owner of the licensed property, and the licensee. A sub-licence is not a special sort of licence: it is a sub-licence in virtue of its mode of creation (ie by a licensee exercising a power rather than the property owner exercising a power), not in virtue of its content.

Taking into account my lack of expertise in law, the question I am focusing on is roughly

1. Given I want to create a new work that will use OGC that prior to now has been used in other works
2. And the upstream entity - Hasbro - no longer wishes to offer any further licences to content contained in that OGC
3. Per 1. the content I wish to derive from exists in the work of some entity other than Hasbro (henceforth Not-H)
4. I have some theory that makes it so that Not-H can allow me to use the extant OGC including that which originated with Hasbro

This last - 4. - is what I am thinking about. To me - and lacking pertinent legal background - it creates doubts if I picture that Not-H is "sub-licensing" any part of the OGC to me. A "sub-licence" to me is an arrangement that subsists under a licence. So for instance, I look at a contract document bestowing a licence and I see that it (almost always expressly) rules in / out sub-licensing. (This may be where your water/H2O point comes in, as perhaps the labelling makes no difference.)

What seems to be pictured is a chain of licences. I am suggesting that each step breaks that chain, and creates a pairing that is not reliant upon the existence of any prior pairing. It is reliant on the contents of OGC, as determined by prior pairings, but those contents being determined there is no further dependency. Nothing that extends up a notional chain, to Hasbro.

 

[pemerton]

Taking into account my lack of expertise in law, the question I am focusing on is roughly

1. Given I want to create a new work that will use OGC that prior to now has been used in other works
2. And the upstream entity - Hasbro - no longer wishes to offer any further licences to content contained in that OGC
3. Per 1. the content I wish to derive from exists in the work of some entity other than Hasbro (henceforth Not-H)
4. I have some theory that makes it so that Not-H can allow me to use the extant OGC including that which originated with Hasbro

This last - 4. - is what I am thinking about. To me - and lacking pertinent legal background - it creates doubts if I picture that Not-H is "sub-licensing" any part of the OGC to me. A "sub-licence" to me is an arrangement that subsists under a licence. So for instance, I look at a contract document bestowing a licence and I see that it (almost always expressly) rules in / out sub-licensing. (This may be where your water/H2O point comes in, as perhaps the labelling makes no difference.)

What seems to be pictured is a chain of licences. I am suggesting that each step breaks that chain, and creates a pairing that is not reliant upon the existence of any prior pairing. It is reliant on the contents of OGC, as determined by prior pairings, but those contents being determined there is no further dependency. Nothing that extends up a notional chain, to Hasbro.

If you want to use content which will infringe WotC's copyright unless used with permission, then you need their permission. In the context of copyright, that permission is a licence.

There are two ways to get that permission: the copyright owner can give it to you (a licence in the strict sense); or a licensee who has been conferred the appropriate power can give it to you (a sub-licence).

In your scenario, (2) rules out getting a licence from WotC. So you will need a sub-licence. Which is what the OGL is drafted to achieve - each licensee is conferred with a power to license, to others, the OGC that they are themselves licensed to use.

I'm not sure what you are puzzled by, or what you mean by "nothing extends up a notional chain, to Hasbro". Without a licence from WotC/Hasbro, you will infringe their copyrights if you publish etc works that include their content or content that is derivative of their content.

 

[Maxperson]

Taking into account my lack of expertise in law, the question I am focusing on is roughly

1. Given I want to create a new work that will use OGC that prior to now has been used in other works
2. And the upstream entity - Hasbro - no longer wishes to offer any further licences to content contained in that OGC

Is #2 the case? They moved SRD 5.1 into CC, but they also left 1.0a alone, so you can still use OGL 1.0a to use the other OGC works. You just run the risk of WotC attempting to shut down OGL 1.0a in the future since it's not in CC.

 

[clearstream]

Is #2 the case? They moved SRD 5.1 into CC, but they also left 1.0a alone, so you can still use OGL 1.0a to use the other OGC works. You just run the risk of WotC attempting to shut down OGL 1.0a in the future since it's not in CC.

Exactly: it's in contemplation of the latter.

 

[FrogReaver]

Without a licence from WotC/Hasbro, you will infringe their copyrights if you publish etc works that include their content or content that is derivative of their content.

Wait - so you are saying that you contract with the sublicensor to obtain a license (permission) to use WOTC’s copyrighted material directly from WOTC?

That notion makes sense to me. Though it still doesn’t sound typical to the wording of other sublicense agreements. I’m under the impression that most such agreements say the sublicensor grants the license (instead of the copyright holder) Is this inaccurate?

 

[Maxperson]

Exactly: it's in contemplation of the latter.

The risk of an OGL 1.0a deauthorization is very, very, very low at this point. They wanted to control 5e content and the VTT world, but since the SRD 5.1 is in CC, they can't cut third parties off from those things any longer. There's no point in them trying to end the OGLs up to this point any longer. They can't get what they want by doing so and they will only bring back all the ill will.

 

[clearstream]

The risk of an OGL 1.0a deauthorization is very, very, very low at this point. They wanted to control 5e content and the VTT world, but since the SRD 5.1 is in CC, they can't cut third parties off from those things any longer. There's no point in them trying to end the OGLs up to this point any longer. They can't get what they want by doing so and they will only bring back all the ill will.

Apologies, it often happens that I am interested in something in the abstract - as a hypothetical or possibility - and I know many folk prefer to focus on the pragmatic.

 

[Maxperson]

Apologies, it often happens that I am interested in something in the abstract - as a hypothetical or possibility - and I know many folk prefer to focus on the pragmatic.

No worries. And no need to apologize!

 

[pemerton]

Wait - so you are saying that you contract with the sublicensor to obtain a license (permission) to use WOTC’s copyrighted material?

That's my view.

Here is @S'mon sharing it in post 15 of this thread:

I also think that WoTC can cease to licence material under the OGL 1.0 (and almost certainly can stop ONE D&D being licenced under the 1.0 OGL). However I don't think they can stop the third party sub-licensing permitted via the OGL 1.0. If I'm right then a 3PP can still sub-licence the contents of the 5e SRD from eg 5th Edition SRD under the OGL 1.0.

That notion makes sense to me. Though it still doesn’t sound typical to the wording of other sublicense agreements. I’m under the impression that most such agreements say the sublicensor grants the license (instead of the copyright holder) Is this inaccurate?

I'm not sure what agreements you have in mind. And I'm not sure what's at stake.

Suppose W owns the copyright in X, and W licenses A to use X, and the terms of the license include both a power and an obligation to sub-license X to other parties on very particular contractual terms. A enters into such a contract with B, thereby bringing it about that B enjoys a licence from W in respect of X.

In the scenario just described, it was A's action, in entering into the contract with B, that brought the licence into being. It is W's property that is the subject matter of the licence, and thus W who has been brought into the licensor-licensee relationship with B. What is at stake in asking whether it is W or A who granted the licence?

 

[FrogReaver]

Suppose W owns the copyright in X, and W licenses A to use X, and the terms of the license include both a power and an obligation to sub-license X to other parties on very particular contractual terms. A enters into such a contract with B, thereby bringing it about that B enjoys a licence from W in respect of X.

That’s what I said makes sense. Then I followed it up with a question that keeps getting glossed over - Why is the language used here atypical when compared to the language other sublicensing contracts?

In the scenario just described, it was A's action, in entering into the contract with B, that brought the licence into being. It is W's property that is the subject matter of the licence, and thus W who has been brought into the licensor-licensee relationship with B.

I keep saying that makes sense. My question is why this formulation isn’t seen in other typical sublicensing contracts.

What is at stake in asking whether it is W or A who granted the licence?

Let’s establish which it is first and then look at implications.

 

[pemerton]

There seems to be some confusion in some recent posts about what a licence is, in legal terms.

A licence is a personal right - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property.

By definition, therefore, a licence is a legal relationship - one of permission - between a particular party (the licensee) and a property owner (the licensor).

If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter.

Speaking in the abstract, it is possible that a sub-licence might involve different terms from the head licence - eg W licenses to A royalty free, and then A sub-licenses to B and requires that B pay A (or W) $1 per copy made. Whether or not A has the power to impose those sorts of conditions on B, as part of the sub-licence, will depend on the nature of the power that W conferred on A. What the consequence for B of breaching such a condition would be will depend on many considerations, both of factual and contextual detail and also legal principle (eg does the licence come to an end such that B is liable to W for interfering with W's property? Or does B retain a licence but incur an obligation to play A damages for breach of contract? Or something else?)

But in the context of the OGL, the power to sub-license is limited to sub-licensing on the exact terms of the OGL. So each party in the chain of contracts enters into exactly the same licensing arrangement with the upstream contributors whose work has been licensed to those downstream.

 

[pemerton]

@FrogReaver

I've explained to you what the mechanism is: A makes an offer to B, which B accepts, and as a result B enjoys a licence in respect of W's property.

Section 4 uses the verb "grant" in relation to the contributors. To me that seems mostly a drafting convenience, as it covers both multiple parallel contributors as well as contributors at different places in the "stream": eg W licences to A and B, then C publishes a work that draws on both A's and B's material - the licence terms require C to include only one copy of the OGL, that names W and A and B in its section 15; and so both A and B are unmediated contributors, whereas W's contribution is mediated via A and B.

Characterising the grant as flowing from all those contributors makes the drafting straightforward, and does not cause any problems given that all the licences are on exactly the same terms and govern exactly the same content.

Why is it important to you to label one of A or W the grantor? What legal consequence are you trying to establish or investigate?

 

[FrogReaver]

There seems to be some confusion in some recent posts about what a licence is, in legal terms.

A licence is a personal right - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property.

By definition, therefore, a licence is a legal relationship - one of permission - between a particular party (the licensee) and a property owner (the licensor).

I’m with you this far (as best as a layman can be).

If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter.

This sounds nearly identical to your description of acting as an agent earlier in the thread. Maybe a brief explanation on the difference there.

Speaking in the abstract, it is possible that a sub-licence might involve different terms from the head licence - eg W licenses to A royalty free, and then A sub-licenses to B and requires that B pay A (or W) $1 per copy made. Whether or not A has the power to impose those sorts of conditions on B, as part of the sub-licence, will depend on the nature of the power that W conferred on A. What the consequence for B of breaching such a condition would be will depend on many considerations, both of factual and contextual detail and also legal principle (eg does the licence come to an end such that B is liable to W for interfering with W's property? Or does B retain a licence but incur an obligation to play A damages for breach of contract? Or something else?)

But in the context of the OGL, the power to sub-license is limited to sub-licensing on the exact terms of the OGL. So each party in the chain of contracts enters into exactly the same licensing arrangement with the upstream contributors whose work has been licensed to those downstream.

Yes.

 

[FrogReaver]

@FrogReaver

I've explained to you what the mechanism is: A makes an offer to B, which B accepts, and as a result B enjoys a licence in respect of W's property.

Section 4 uses the verb "grant" in relation to the contributors. To me that seems mostly a drafting convenience, as it covers both multiple parallel contributors as well as contributors at different places in the "stream": eg W licences to A and B, then C publishes a work that draws on both A's and B's material - the licence terms require C to include only one copy of the OGL, that names W and A and B in its section 15; and so both A and B are unmediated contributors, whereas W's contribution is mediated via A and B.

Characterising the grant as flowing from all those contributors makes the drafting straightforward, and does not cause any problems given that all the licences are on exactly the same terms and govern exactly the same content.

Why is it important to you to label one of A or W the grantor? What legal consequence are you trying to establish or investigate?

Thank you. This has helped.

 

[pemerton]

This sounds nearly identical to your description of acting as an agent earlier in the thread. Maybe a brief explanation on the difference there.

So I just Googled "sub licence agency" and found this link to a 2013 decision of the High Court of England and Wales (its place in the judicial hierarchy is perhaps comparable to the US Federal District Court): High Court finds that a sub-licensee acts as an agent of the original licensor, when it grants further sub-licences

The reason there are not always straightforward answers to the questions you are asking is because the common law does not work as a "top down" rationalised system of legal principle. It is a collection of principles established by a type of generalisation from decided cases that are re-applied over time over different fact situations.

So a concept like that of sub-licensing of IP can emerge in one area of law, and the concept of agency can be developed in a different area (predominantly contract law) and it can take from 1925 to 2013 for a case to come to court which requires the court to say more about how the two legal concepts are related.

In the case of the OGL sub-licensing regime, I doubt that an agency analysis adds very much; if you read the blog I linked to, you'll see the significance of the use of agency concepts was to deal with questions of ostensible authority, actual authority, whether the sub-licence survives termination, etc. In the case of the OGL this is all known: the parties are listed in the section 15 statement, section 13 expressly provides for the survival of sub-licences, and there is (in my view, on the best legal construction of the OGL's terms) no provision for cancelling licences otherwise than by breach as per section 13.

One important law that applies to agents is the law of fiduciary obligations, which governs the way they may use their powers. But the power that the OGL confers to sub-license involves no discretion - the licensee must make the offer, and acceptance is not conditional on any decision or choice by the licensee, and the emergence of the sub-licence upon accepting the offer is automatic. This lack of discretion makes me doubt whether fiduciary law would have any work to do.

Hence why, as I said, I doubt that an agency analysis is going to add much.