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

[Nylanfs]

The Open Source world long been divided into camps about how far to go. EFF is firmly in "all thing should be open" camp. By their reasoning that mean Linus Torvalds could withdraw authorization for his license grants for Linux because it uses GPL v2 which doesn't have irrevocable in it as well. Irrevocable only became a consideration in the wave of revisions (GPL v3, CC, etc) that came in the late 2000s, and 2010s. Well beyond when the OGL was created.

In an ideal world, there would be an OGL 1.0b update that updated the language slightly to make it irrevocable. But to be critical of a license that predated that understanding is disingenuous and to me feels like throwing the OGL community under the bus.


Which I would really like those who are lawyers to start citing key cases so we can read the nuances for ourselves. The details matter. Especially if it something that happened AFTER the OGL was created.

Except that the GPL v2 WAS ruled on that the intent of the license was to be irrevocable. Irrevocable was added to later licenses so that it couldn't be re-litigated

 

[Enrahim2]

This doesn't quite make sense to me. WotC already enjoy the right to publish OGC, under the licence pursuant to which that OGC was published (ie OGL v 1.0 or v 1.0a). But OGL v 1.1 commercial is a licence between other parties (as licensees) and WotC (as licensors). WotC don't enter into the licence with themselves, so there is no such thing that I can see as WotC publishing a work under the OGL v 1.1.

They can publish OGC under 1.0a, but they could not mix that with one D&D content that they want to keep out of the 1.0a ecosystem.

1.1 a grants (presumably) anyone permission to mix 1.0a OGC and 1.1 Lisenced Content for static purposes, as long as it is published according to 1.1. But once such a creation is made, under this scheme wizard would have exclusive permissions to use this in the digital space.

So yes, there might be a legal technicality that wizards strictly speaking cannot make such creations themselves, but that appear like a technicality that should be very easy to work around.

 

[pemerton]

My understanding from the lawyers are that property rights are quite a bit different. Indeed there are many specific laws around property that don’t apply to other circumstances. Eviction laws are just one such example. One other important thing I note in your hypothetical situation is that there is extremely minimal if any harm occurring to the licensees or sublicensees, but that probably matters less to whether it's revokable and more around whether the licenser can incur damages from the revocation.

I teach property law. I'm fairly familiar with the principles at play in my example.

Consider the following structure of OGL v 1.0/1.0a licences: WotC licenses the SRD to X; X produces a work under terms of that licence; Y uses the OGC in X's work to produce their own work under the same licence terms.

As I said in the post you are quoting, and in my reply to @S'mon not too far upthread, I find it basically inconceivable that there could be a scenario in which WotC has a unilateral right of revocation against X, and yet not against Y. Or to put it another way, I utterly fail to see how X could be liable to revocation at will, and yet have a power to sub-license Y which makes Y immune from WotC's power of revocation.

Do you have an argument that my intuition here is wrong?

My layman's understanding of U.S. law on this subject is
1. If a license specifies the grounds on which it can be terminated/revoked, then once accepted it normally cannot be terminated/revoked on any other grounds.
2. If a license specifies a duration, then it's normally not terminatable/revocable to those that have accepted it.
3. The licenser can himself can withdraw the offer of the license at any time.
4. However, if he has explicitly licensed out the ability to sublicense offers then he cannot withdraw that ability at anytime as going so would break the license agreement he has with his direct licensee.

You are approaching contract interpretation as if the words of the contract can be analysed in an algorithmic fashion. That is not how common law contractual interpretation works. @S'mon quoted a salient case upthread, which made the point that the meaning of the words has to be interpreted in light of the overall context. I made a post upthread (#594) which elaborates a bit on this point.

Section 13 is labeled Termination. Thus, it is expressly concerned with all forms of termination.

Where does it say it is expressly concerned with all forms of termination? It doesn't. You're drawing an implication.

Here's a sufficient demonstration of the point: I could grant a gratuitous licence to you to copy and distribute my works in which I hold the copyright, stating as a condition that you must attributed them to me when you do so. And I could include as a term of the licence, under the heading "Termination", that the licence is terminated automatically if you fail to comply with the attribution requirement. But that licence terms would not deal with all forms of termination, because in the scenario I've just described I would enjoy the power to revoke the licence at will (it being a gratuitous licence).

The OGL v 1.0/1.0a is not a gratuitous licence. It is a licence granted by way of contract. That means it has to be interpreted as a contract. Which can't be done in the mechanical fashion you are suggesting.

It just so happens to be that a breach is the only available means of termination within this license.

This is an implication that you are drawing. Nowhere does the OGL v 1.0/1.0a expressly state that breach is the only means of termination. My post #594 says more about this.

Doesn't have to. If I make a contract that I'll give you 100 dollars in exchange for never speaking to me again, but am silent on whether I'll also give you my dog, that doesn't mean you have an argument in the contract that you also should have my dog.

This is a terrible argument. And runs directly against your point. What the OGL v 1.0a is silent on is whether or not section 13 is an exhaustive statement of the possible bases for termination. So on its face, your attempt to argue that section 13 is exhaustive is no better than someone's attempt to argue that your never speaking contract is also a promise to convey title to your dog.

The actual argument that there is no other basis for termination rests on detailed consideration of the terms of the contract and whether they support an implication that section 13 is exclusive, together with general principles of contract and licensing law that both determine when one party may have the right to bring this sort of contract to an end, and that will assist in the construction of this particular contract.

 

[pemerton]

Apologies, I didn't mean to imply any specific instance where it wasn't a contract, only that I know it is within the EU, and might not be elsewhere. Also that contract law itself may differ between territories.

I can't comment on civilian jurisdictions, but in a common law context the only argument I could see that it is not a contract is that no genuine consideration flows from the licensee. But as per my post that you replied to, I don't find that very plausible, as the licensee promises to refrain from exercising certain privileges (ie privileges they would otherwise enjoy to make some use of some product identity) and to deal with some of their own copyrighted works (ie their OGC) in rather specific ways.

 

[glass]

You didn't read far enough down the thread.

I read the whole thread (as it existed at the time). Unfortunately, that meant by the time I got to the end I had a huge list of quotes to respond to and could not entirely remember which had been addressed and which had not....

 

[pemerton]

They can publish OGC under 1.0a, but they could not mix that with one D&D content that they want to keep out of the 1.0a ecosystem.

1.1 a grants (presumably) anyone permission to mix 1.0a OGC and 1.1 Lisenced Content for static purposes, as long as it is published according to 1.1. But once such a creation is made, under this scheme wizard would have exclusive permissions to use this in the digital space.

So yes, there might be a legal technicality that wizards strictly speaking cannot make such creations themselves, but that appear like a technicality that should be very easy to work around.

I don't understand this.

We know that WotC, in the past, has published OGC in its books (eg Unearthed Arcana and one of the 3E-era MMs). They could do this again, including in the digital space. Under the terms of OGL v 1.1, they enjoy permission to make use of any licensee's work. So they could to that too.

To me, you seem to be making this more complicated than it is.

 

[Steel_Wind]

I'm happy to be corrected, especially by @S'mon if he thinks I'm getting this wrong.

But here's my take.

Suppose I ask you to look after my house on the weekend while I'm away. You ask "Is it over if I have a few friends over on Saturday evening?" and I reply "Sure!"

Now I have licensed you to be on my land and in my house. And I have authorised you to license your friends - ie to create sub-licences.

Suppose my plans fall over: I get sick, and come back earlier than planned, on Saturday evening. I come in and say "Sorry everyone, I'm contagious and need to rest, you'll have to all go home." I've terminated your licence, and also the sub-licences. This also illustrates that the difference between a licence and a sub-licence is not their subject matter (for both you and your friends, the licence has the same subject matter - ie hanging out in my house) but their mode of creation - you dealt directly with me, whereas your friends didn't, they dealt only with you in circumstances where I had vested you with an appropriate legal power.

Relating this to the OGL v 1.0/1.0a:

These kinds of folksy analogies can be deceptive, because they import the context of what was always gratuitous and revocable, and then apply them in a commercial context in ways in which that was never intended to be the case.

To illustrate the point, let's change it up a bit.

You are going away for a week out of town and you are getting your kitchen remodelled. You engage Todd The Builder, a contractor for that purpose. The contractor comes well recommended, only the best tradespeople work for him it's said. After meeting with him and seeing some pictures of his past products -- you are happy and hire Todd to do the work.

You come home early that week on Saturday and find that Todd isn't doing the work in the kitchen -- he's amorously going to work on your wife by the pool. There are some other tradespeople in your kitchen putting up the tile on the backsplash. You tell them ALL to get the hell out. You tell Todd to go to hell and you aren't paying him. "Sue me", you say.

Turns out, the sub-contractors put a lien on your house. You never had any deal with them, didn't even know they would be relying on your general contract with Todd. "I'm not paying you either", says you.

"Wanna bet?", say the sub-contractors.

Now, most jurisdictions have mechanics or construction lien legislation that further deal with how all of this goes down and is resolved. The point is, sub-contracts that rely on the initial contract aren't contracts you can just ignore without consequence. This isn't a gratuitous license -- this is a commercial license and there is money and reliance involved here.

Change up the analogy. Todd and his subs do the work on your kitchen, you come home Sunday and never find out about Todd and your wife. Turns out the sub who installed the dishwasher made quite a mess of things, but the slow leak that leads to rot in your kitchen floor and wall takes a good long time to be discovered. Three years pass.

In the intervening 3 year period as your house is rotting from the slow leak, Todd goes bankrupt. Who do you sue and under what basis?

Obviously, these are less folksy analogies -- but that's because we aren't dealing with friends house sitting -- or Todd and his unauthorized "pool party" -- we are dealing with a commercial invitation which provides benefits which flow in both directions (consideration) and that will be relied upon in a commercial context by others, both in the past -- and prospectively in the future, too.

This isn't about a gratuitous license to enter land - that's not the correct analogy. That analogy is both deceiving and fundamentally misleading.

 

[pemerton]

@Steel_Wind

In your example I'm not sure on what basis I'm revoking against Todd. I get that he has no lien because he's done no work, but the lien and the licence seem like different things: under the contract he still has a licence to be there and to do some work in the remaining period of the contract. If I'm revoking Todd's licence to be on my premises for some sort of breach - eg the licence was for the purpose of doing work, and he's not been conforming to that requirement - then in this context that is analogous to section 13 termination for breach.

Anyway, my intuition remains the same - if, as the OP asserts, WotC has always enjoyed a right at will to terminate the OGL with a direct licensee, then I don't see how it can lack that right against sub-licensees. If you are simply reiterating that the OP is wrong in the context of a contractual licence than I agree. But the post I was initially replying to was accepting the OP's claim as between WotC and direct licensees, and then wanting to deny that it would extend further to sub-licensees. And that is what I don't consider plausible.

 

[S'mon]

Thanks for putting that far more elequently and succinctly than my own rambling version

I've just been marking 25 Contract-based LLM problem papers, one of the questions I set was on Repudiatory Breach so I had it in mind.

 

[Steel_Wind]

@Steel_Wind

In your example I'm not sure on what basis I'm revoking against Todd.

Who cares? It's a contract -- motive is irrelevant; cause is irrelevant, termination is irrelevant when it comes to the subs. It's not about Todd -- it's about the subs.