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

[Maxperson]

Catching up.

I really appreciate your efforts to simplify matters for people. but I have to take issue with what you have said here. This ... isn't accurate, and is arguably misleading.

And I think the bolded isn't accurate, and is arguably misleading. I mean, good God, by the time you've "caught up" 4 more pages have been posted, and then there are the other threads!!!!

 

[Maxperson]

Again, I prefaced that be saying that I appreciated his simplifications for purposes of explanation; but that particular passage suddenly made everything overly-simplified and misleading. It would be like someone saying, "Look, property law is nothing more than a historical battle between courts trying to get rid of dead head control, and clever people trying to ensure that their dead hands controlled property forever."

Jerry Garcia owns my house!?

 

[rcade]

Suppose that X, who used to publish RPG material licensed under the OGL v 1.0a and citing a WotC-copyright SRD in its section 15 statement. Now X publishes a RPG in a way that does not conform to the OGL v 1.0a requirements (eg it no longer includes a copy of the OGL v 1.0a together with appropriate OGC, Product Identity and Section 15 notices).

And finally, suppose that WotC commences legal action against X, arguing an infringement of WotC's copyright. It seems that they may not have too much difficulty showing a causal link between X's new publication, and WotC's copyright SRD.

Your premise is that WOTC, having told X "here's our open license to share our content" in an agreement that both parties agreed was valid at the time X published a product, is going to use that as proof of infringement when X publishes something new in the future without the open license WOTC wants people to stop using?

That would be quite a feat. Not to be confused with Feats, which WOTC is still sharing at the time of this comment under OGL 1.0:

Feats Index :: d20srd.org

 

[S'mon]

Thanks for the reference - I looked at the Wikipedia entry but haven't read the case (I'm a bad student!).

Two things struck me. One, it's copyright in the context of visual arts and not literary works. Second, this bit from Wikipedia: "there was a causal link between the defendants' desire to use an image like the claimant's image and the production of the offending image, that was not disturbed by the search for similar images". That seems like a true description of the situation for some of the emerging no-longer-OGLers.

Yes - if you are making a clone-ish game that resembles its parent the way those two images did (and they're far from identical) then you are at risk.
I worry about the retro-cloners who say they plan to redo their games and publish outside the OGL; it seems extremely risky to me.

 

[S'mon]

Your premise is that WOTC, having told X "here's our open license to share our content" in an agreement that both parties agreed was valid at the time X published a product, is going to use that as proof of infringement when X publishes something new in the future without the open license WOTC wants people to stop using?

Er, ask our resident trial lawyers here what they would do in that situation... AFAICS that is a perfectly sound tactic. The licence only applies to the works it's affixed to. You establish causation (here, actual copying). You establish that the copying was unlicensed. Now it goes to whether a substantial part of the work was taken. For something like 1e Pathfinder, that would be glaringly obvious - they pretty much took the whole game.

 

[kjdavies]

Your instinct that there may be a distinction is not incorrect. Words invariably carry a connotation with them, and a good drafter will choose their words to take advantage of the connotations in order to help the parties and the courts understand the parties intentions. For example, to me "revocation" carries with it a connotation that it is a unilateral action that one party to an agreement can take to cease contractual obligations where that party has granted something, whereas "termination" carries the connotation that it is some outside condition that is causing the cessation.

For example, if I wanted to express the idea that a painter can paint buildings on campus as much as they would like (and get paid for it), but the payer can cancel this arrangement, I would probably use "revoke." "Corporation agrees that painter may elect to devote time to re-painting any buildings on campus designated by corporation as in need of painting, and corporation shall pay painter $100 per hour for time spent painting; provided that Corporation may revoke this agreement at any time in its sole discretion by notice to painter, and following revocation, painter shall have no further rights to payment hereunder."

Contrariwise, if I wanted to express the idea that painter's obligations are subject to a force majeure clause, I would probably use "termination." "In exchange for $100 per hour, painter agrees to paint the buildings on campus designated by corporation; provided that in the event of fire, flood, riot, epidemic or other act of God affecting the campus, this agreement shall be terminated and the parties shall have no further rights or obligations hereunder."

Revocation and termination essentially mean the same things here: cancellation of contractual obligations. However, one term or the other provides a different connotation that is appropriate in different contexts.
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In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

heh, and now things get confusing for me again (but not really), in that this actually is very close to how I was reading the words.

'Terminate' is a consequence ("if this happens, contract ends" -- possibly with consequences), "revoke" is a decision (which might have preconditions or requirements -- sufficient notice, severance pay, etc. -- that if not met might be a breach... that could lead to termination).

 

[kjdavies]

True story: before I was a lawyer, I was an engineer. My first years at law school, which mostly involves reading case opinions, was infuriating for me because judges writing opinions are incredibly sloppy with their reasoning, with terrible gaps in logic, unexpressed assumptions, questionable factual assertions not in the record, etc., etc. It took a lot of adjustment to grok that case opinions are not actually legal analysis, but instead are persuasive writing that, for its persuasive power, has the appearance of legal analysis. Its a very different world than engineering, where if your logic doesn't hold up, the bridge falls down (or in my case, the rockets don't fly).

That sounds painful, and makes me glad I was not interested in going into law. I would find that maddening.

 

[kjdavies]

not sure how much persuasive writing goes into a PCA ....

I tend to disagree with this; in my experience, people who are engineers or come from certain other fields struggle when it comes to litigation, not because judicial opinions are persuasive writing, but because litigation necessarily involves a willingness to embrace ambiguities.

To use your example, most engineers don't have to tell their client, "Look, here's the deal. I really like this bridge design. I think this is the best design possible. If we commit to building it, I give it ... well, a 90% chance of not falling down immediately."

(This is why the one constant in my comments, to the extent there is one other than going for cheap laughs, is that you should be careful of certainty.)

(I'm software, not hardware) I have often had to make design and operational decisions based on insufficient information; risk management was a big part of my job. Identifying what can go wrong and a sense, if not an actual percentage likelihood, of a thing happening is totally an engineering activity.

I can entirely imagine an engineer saying that about the design... and being sent back because that is not an acceptable risk. Or the plan being scrapped entirely, or a new plan found (bridge built somewhere else, or replace the engineer with one who can do it better). I haven't built a bridge like this, but I have designed and implemented software, and presented at several stages "this is what you asked for, and this is how bad it will hurt you when it goes live" and made sure it was clearly articulated for when what I said would happen did happen.

I don't often get to deal with absolutes, but after spending this long in operations and client management I can be pretty confident when I tell you you're making a mistake...

 

[kjdavies]

The OGL is not a unilateral contract. A promise is made to permit the use of Open Game Content in exchange for not using Product Identity or making claims of compatibility.

I agree with nearly all your post Anon, but:

The offer in the OGL afaics meets the definition of a Carlill c Carbolic Smokeball Unilateral Offer Contract in English Law. It is accepted by your performance, without need to notify the offeror of your acceptance.

I think what @Anon Adderlan meant has been called elsewhere in the thread a 'gratuitous license'. That is, I think Anon is saying the OGL isn't something one person can offer and take away once accepted (unilaterally revoked), though I agree it does not require formal response to the offeror.

 

[kjdavies]

Thank you for your kind words. For what its worth, much of my day-to-day work involves explaining little bits of the law or interpretation of agreements to clients trying to be useful and helpful. To be useful necessarily involves tightening the focus to the issue at hand, rather than a grand top-down explanation of an entire body of law; that is why I emphasized that I was responding to you specifically rather than expounding more broadly. I'll let the professors do the expounding.

I do appreciate the time and effort you've put into the conversation. I don't deal with legal matters much -- as little as possible, in fact -- but I do like to understand them when they potentially affect me.

I spend a fair bit of time mentoring others, mostly in technical subjects but sometimes in organizational or social topics (which baffles me because I am largely asocial in my personal life), so I like to recognize and acknowledge when I see others doing it for me.