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

[S'mon]

I look forward to any citations you can provide to support your own arguments. I really do recommend that article if you can access it.

Looking for some case to give your position any support, I found one on revocation of Perpetual software licence - BMS Computer Solutions v AB Agri - comment at BMS v AB Agri

I post an extract discussing it here - if I have more time I'll dig up the case report on Westlaw later.

Basically it says some perpetual licences are terminable, depending on the specific facts. It definitely does not say Perpetual = Terminable.

Edit: I really need to be back marking papers... but thanks @pemerton for the above!

 

[S'mon]

Found this US law office page, discussion Can You Terminate a Perpetual Licensing Agreement? - as I expected, they say it's a grey area. I'd like to find an actual case on this though.

A perpetual licensing agreement, as the name implies, runs for an indefinite period of time. The agreement allows a licensee rights of access and use in perpetuity, usually for a one-time fee paid to the licensor.

But do these agreements really run until the end of time, or are there circumstances in which you can terminate a perpetual licensing agreement? The answer typically turns on your answers to two other questions:

What language is inside your licensing agreement?

In the United States, the issue of terminating a perpetual licensing agreement is not exactly settled. The law is somewhat gray on the matter. However, if you have included certain language in your licensing agreement, termination could be a simpler question. For instance, if your agreement says it is “revocable at will,” it is quite likely you can terminate the agreement for any reason at any time.

On the other hand, if your agreement contains the term “irrevocable,” it could be far more difficult to terminate. The possibility of termination will rest on the entirety of the agreement and its interpretation. These two scenarios demonstrate how important it is to make sure your original agreement contains the right language for your business.

 

[Ulorian - Agent of Chaos]

I really need to be back marking papers... but thanks @pemerton for the above!

B+ across the board, then you can get back to what's really important. You're welcome.

 

[Steel_Wind]

I can keep going, but I won't.

Because no other lawyer on this thread has cited a single source to support their arguments. I am the only one.

The practice of law is not an academic discussion. Corporate/commercial litigation (which is what I do) is not a theoretical exercise. There is no point in trying to write a factum before the fact.

I won't even get into a discussion about the minefield and inapplicability of any principles of real property, easements, licensees and adverse possession on this issue - which is the legal context in which a license to enter onto land is considered. The entire principle under discussion of a license to enter property is, therefore, dramatically different. Indeed, it is so different, your reference to it confirms to me that you must be a junior lawyer with no experience in this area at all. It should be a cue to just stop.

I know that this is of great interest to you and others here. Your interest is natural and laudable. Your definitive expression of opinion on the interpretation of these agreements and in predicting the outcome would, however, greatly benefit from the perspective that a few more decades of practice would bring: nothing is certain in litigation.

There is no prize to win by pronouncing definitive conclusions of law before there is any need to do so -- and especially before all the facts and circumstances are known.

tl;dr: slow down

 

[Steel_Wind]

Found this US law office page, discussion Can You Terminate a Perpetual Licensing Agreement? - as I expected, they say it's a grey area. I'd like to find an actual case on this though.

A perpetual licensing agreement, as the name implies, runs for an indefinite period of time. The agreement allows a licensee rights of access and use in perpetuity, usually for a one-time fee paid to the licensor.

But do these agreements really run until the end of time, or are there circumstances in which you can terminate a perpetual licensing agreement? The answer typically turns on your answers to two other questions:

What language is inside your licensing agreement?

In the United States, the issue of terminating a perpetual licensing agreement is not exactly settled. The law is somewhat gray on the matter. However, if you have included certain language in your licensing agreement, termination could be a simpler question. For instance, if your agreement says it is “revocable at will,” it is quite likely you can terminate the agreement for any reason at any time.

On the other hand, if your agreement contains the term “irrevocable,” it could be far more difficult to terminate. The possibility of termination will rest on the entirety of the agreement and its interpretation. These two scenarios demonstrate how important it is to make sure your original agreement contains the right language for your business.

The larger issue here is not whether WotC can revoke the OGL going forward, it is what the impact of previous uses of the OGL -- and then use of that material by sub-licensees means and whether that can be stopped. If it can be stopped, can that be stopped via injunction?

I think, that result to be unlikely. An injunction, under these circumstances? Won't happen. They might win at trial, or on appeal -- but an injunction? No, that is not a litigation bet I would make.

WotC can put the brakes on 1.0a and the 5.1 SRD, going forward concerning D&DOne (let's just call it 5.5 for now) and it can do whatever it and another party wants via express agreement (including clauses which wipe out rights under the OGL 1 and 1.0a.) But those are prospective concerns, not retrospective ones. I don't think WotC can easily put the Genie that has already been released back in the bottle in terms of the current and prior editions of the game -- and most importantly, what it based and derived from that already licensed material. There is a veritable boatload of commercial reliance premised upon the legal use of derivations of that initially licensed work, especially by Paizo Inc. in PF1 and PF2. To say that nobody else could make derivative use of Pathfinder products in the future, say?

I doubt that result would come after 23 years -- and so much reasonable commercial reliance. Indeed, there are banks and other lenders that have been granted security over the value of the marks and assets of businesses premised upon the legality of those ongoing rights and the underlying business, too.

I think we should wait and see where this is all going. Getting our knickers in a knot before there has been any new definitive statements by WotC on the topic is simply not helpful.

 

[S'mon]

I think we should wait and see where this is all going. Getting our knickers in a knot before there has been any new definitive statements by WotC on the topic is simply not helpful.

Well I'm an academic, we are inclined to speculation! But yes, the 3PPs definitely should be sitting tight and waiting for clarification. It may very well be that WoTC is only seeking to stop OGL 1.1 users from also using OGL 1.0. Which is bad, but not the Apocalypse.

 

[DavyGreenwind]

I read the introduction to that article. The second sentence after n 30 is

The role played by contract in the realm of license is a different one - it provides a means for licensors to protect a licensee's interest in non-revocation without granting an ownership interest in the property.​

That seems to me a fair description of what most people have understood the OGL to involve. A few sentences on, the author says

There is no reason, in principle, why copyright law, like land law, should not permit the creation of irrevocable and exclusive license interests by means of either property conveyance or contract, leaving each to be enforced through the appropriate means. A clear recognition that copyright owners are able to create irrevocable, nonexclusive licenses by unilateral deed would be particularly helpful to owners who wish to grant open-source or Creative Commons licenses.​

I don't think this contradicts the idea that the rights and powers granted under the OGL may be irrevocable, even if WotC were to rescind/revoke its (hitherto) standing offer to license to all comers.

This characterises the nature of a licence as a non-proprietary interest. Which I think everyone understands and agrees with.

But surely it is possible, by way of contract, to bind oneself not to exercise the power of revocation? What the remedy would then be for purported revocation - a voiding of the purported revocation, or damages for the consequences that flow from it - I don't know, as far as US contract law is concerned.

Well, I think the passages from the Iowa LR article provide support.

Of the cases you linked to, the only one I looked at is the Mueller one - which concerns oral licences giving a right of way to neighbours, and is primarily concerned with whether or not they can give rise to an easement by way of long user. It doesn't seem to me to have much bearing on whether or not a contract with the intricate written terms of the OGL can bind the parties not to revoke. The Court, at 33, even allows that "the agreement that the mutual use was to continue "as long as both houses stood" might give rise to a claim that defendants' revocation at this time operates as a fraud upon the plaintiffs" - but puts that matter to one side, as even so that would not establish the easement the plaintiff sought to claim.

I'm not saying that you are definitely wrong, but I'm not seeing how the two sources you point to that I've reviewed support the claim you're making. (It's late at night where I am, so I'm not going to check the other sources. Do they bear more directly on the issue at hand?)

Licenses CAN be irrevocable. That's not my point. My point is that the OGL is not. The presumption against irrevocability is so strong that courts generally do not hold a license irrevocable unless it says "irrevocable." The OGL doesn't say "irrevocable." Period. End.

That's all most courts need to look at. They may entertain claims of reliance or promissory estoppel, but do not overestimate the strength of those arguments. In the United States, reliance will trump property rights in extraordinary circumstances. But here, WotC has basically been giving it away for for free.

 

[GMforPowergamers]

Licenses CAN be irrevocable. That's not my point. My point is that the OGL is not. The presumption against irrevocability is so strong that courts generally do not hold a license irrevocable unless it says "irrevocable." The OGL doesn't say "irrevocable." Period. End.

That's all most courts need to look at. They may entertain claims of reliance or promissory estoppel, but do not overestimate the strength of those arguments. In the United States, reliance will trump property rights in extraordinary circumstances. But here, WotC has basically been giving it away for for free.

(Not a lawyer here)
that period sounds WAY more definitive then any lawyer I have ever delt with has been willing to put out. If I were in a meeting and a lawyer told a company I work for something that definitive I would be shocked and start to work on the fact that it isn't going to work.

 

[Morrus]

Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

Reading that, it seems to me that, while we don't know how this will ultimately play out, anybody who thinks they might conceivably want to use the OGL 1.0a in the future should do so immediately by releasing a tiny 'product' into the wild under the OGL before WotC stops 'offering' it. If this version turns out to be the way it goes, those people will perpetually have the right to use the current SRD contents.

 

[overgeeked]

One thing I was wondering about is the sublicensees bit. It reads as if anyone using the OGL "down the line" would be covered. So if I put out a product after WotC "de-authorizes" 1.0/a, but I used OGC from someone else who did publish prior to that point, I would therefore be a sublicensee of that person/content, so I'd be covered.