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

[rpd9803]

They tried that with the proposed 1.2 changes. They proposed in 1.2 that the current 1.0a licensees could continue on forever, and put in a 6 month grace period for new works released under 1.0a, but then after that no more could be done.

Yes it does. Count me among those who are shocked by this. I thought it was a possibility, but not before they tried another time or two to meet in the middle somewhere.

I have suspected that since before WOTC went down this path they had already figured out that the piece of the DND revenue that comes from the die-hard community is mostly negligable.. I get them wanting a piece of million dollar kickstarters, but from the jump it seemed unlike WOTC cared to even look at the 2$ pdf on DMs guild with rules for playing the banjo, let alone deal with taking a cut.

I think they did some math and figured that if they lost the long-tail of D&D players, who cares because they sell these books in Target now.. like the percentage of tables using 3pp content has to be a smaller piece of the pie than it seems from /r/rpg or en world.

It seems like they wanted:

• a piece of the pie for big projects
• revokation for the inevitable OGL content for some Bad Decisions
• indemnity from them persuing their publication schedule as they see fit (e.g. give us a license so you can't sue us because our newest adventure had some passing similarities to third party content)
• No license for video games, but VTTs would be fine (I'm not sure there's big market overlap for Foundry and the eventual DND VTT, for one example)

This is perhaps a bit of naiive take, because certainly there were plenty of people talking about how they meant WOTC didn't want anyone else to make money, they wanted to shut down people for no reason, they wanted authorship of your stuff, and they wanted to be the only ones that could make a VTT.

I'm sure the truth is somewhere between those two positions.

The drama farming has been incessant, and there have been many vocal critics, but also a section of people that already didn't buy WOTC books and already didn't play DND but hey, who doesn't love cancelling someone for trying to adjust commercial licensing terms with other business partners?

At the end of the day, CC license for SRD 5.1 seems clearly like the best possible outcome, clear and uneqivicable open-ness for core mechanics and NOW enougn game content to actually play a game.

Feels pretty good, but I do feel sorry for the drama farmers on YouTube who won't be able to sustain the burst in traffic this crisis hath wrought.

 

[rpd9803]

I guess we will never know for sure.

Bittersweet.. now everyone that had an absolutely wrong take will get to walk away from this thinking their expert legal analysis caused WOTC to cave I mean I'm certainly no lawyer, but I did manage image rights in a past life, so I've seen lots of licensing language, and honestly outside of a few oddballs, a lot of this is very similar to what you'd see from lots of other rights holders.

But on the other hand, the SRD is going to be licensed in a very Open way, and thats a huge win, IMO. I would have preferred CC-BY-SA, but my alignment is Chaotic Good

 

[pemerton]

Yep. For the most part it's all about the facts of the accident. Who is at fault and why(bunch of laws on that). What's covered by insurance. What the injuries are and the extent to which they affect the plaintiff. That's most of the battle since it's so interpretive. Both sides have experts playing up or down the injuries to the extent that they can get away with without jeopardizing license or reputation.

Now, sometimes there are details that matter. If an accident happens at insurance renewal time there can sometimes be issues that have to be determined about when the old coverage ended and the new coverage went into effect, and oddball cases that might or might not fall under the insurance policy that have to be argued by both sides. Liability can also be unclear sometimes.

That all makes sense!

 

[S'mon]

Let's take a moment to applaud all the lawyer nerds who have typed so furiously and so long!

 

[pemerton]

As far as I can understand, that might be considered quantum meruit.

Quantum meruit is a cause of action whereby - to speak fairly loosely - one party has done work that improves the value of another's property, or otherwise confers a benefit on that other party, but there is no contract between the parties establishing payment for that work. It entitles the applicant to fair payment.

It can be seen as a species of unjust enrichment - in the sense that, were the quantum meruit not awarded, the party who received the benefit would be unjustly enriched at the expense of the applicant.

The doctrine has no applicability in the context of the OGL, where no party performs labour or transfers assets without a juridical basis for that conduct, such that the other party would become unjustly enriched at the first party's expense.

 

[pemerton]

I would have used the idea that the OGL has helped WOTC maintain market dominance as the consideration flowing WOTCs way.

See, this is just more error and confusion.

Consideration is the benefit granted by one contracting party to another, in virtue of which a contract becomes binding in common law systems. (A teacher's summary of what constitutes a contract in the common law: the meeting of minds over a bargain. My understanding of the civil law of contract is that intention to create legal relations is key, and consideration plays more of an evidentiary than a constitutive role; but I'm happy to be corrected on that by any civilian lawyers in the thread.)

It is possible for consideration to be purely formal - ie the execution of a deed - but we can leave that to one side, as WotC has not made any offers or entered into any agreements under deed, in the context of the OGL, to the best of my knowledge.

With the case of a deed left to one side, the consideration must be something of benefit that flows from one party to the other. It can be executed (eg when you buy food at the supermarket, the formation of the contract coincides with you making the payment) or it can be executory (eg when you buy a car or a house, and enter into a contract in which the purchaser agrees to pay the price, and the vendor agrees to transfer the title, on the agreed settlement date).

With all that in mind, there are multiple obvious reasons why the OGL helping WotC maintain market dominance is not consideration:

(1) It does not flow from the parties.
(2) It is neither executed (something the parties give to WotC in constituting the contract) nor executory (a promise of performance on a future date).
(3) WotC would not be relieved of its contractual obligations if in fact no market dominance occurred.
(4) The OGL makes no reference to it.

The OGL states expressly (in section 4) what the consideration is that flows WotC's way: it is the licensees promise to "use this licence". This use of the licence brings with it multiple duties which change the licensee's legal position, and it is that change of legal position that is the value that flows to WotC. @Aspirinsmurf has pointed out one element of the change of legal position - the promises under section 7 in relation to Product Identity. There are also the promises under section 2 and 8 to offer licences in respect of both used and newly-created OGC to all the world. And there's also the promise under section 9 to allow downstream licensees to choose from the authorised versions as to which one they use to make their offers to licence.

The fact that the consideration that flows to WotC is non-pecuniary is an interesting difference from the contracts of sale for goods and services, and contracts of employment, that most people are more familiar with. But it is not particularly remarkable: a contract whereby I agree to clean your gutters if you agree to mow my lawn would be a perfectly good contract even though it doesn't involve any payment nor a promise to pay.

None of the above is controversial. It's all basic common law of contract, that follows from the application of basic principles to the particular terms of the OGL. A person who can't read the licence and recognise these features of it is not really competent to express opinions about its legal effect and operation.

 

[pemerton]

Every lawyer in this thread has had different interpretations.

No they haven't. The only point of significant disagreement has between the OP and the other lawyers posting as to whether or not WotC enjoys a unilateral power to bring to an end the licences it has granted. No one but the OP has affirmed that view.

The only significant difference between @S'mon and me is that he is more confident than I am that there is no interpretive argument under which WotC's withdrawal of its offer would affect the subject-matter of existing licences. And we agree that once the argument goes beyond textual interpretation (eg to include considerations like the FAQ, and other conduct of and representations made by WotC) then there seems to be no argument which would produce any practical undoing of the licences granted, given that even if WotC were to withdraw its offer, existing licensees would retain their power to sub-license to new licensees.

Experts can be wrong. Their expertise means they should be making better more convincing arguments. I want to see those better more convincing arguments. So far all I get is a lawyer said it so it must be true. Give me the argument and the reasons or it's just a faulty appeal to authority.

I've provided very clear, in depth, analysis, with clear reference to the terms of the offer, the terms of the licence, and general principles of contract law.

One claim I’ll push back on is licensing with people you have never met. Software licenses accomplish this all the time and they don’t necessarily grant any rights to sublicensee. So I know it’s legally possible - though I don’t know the nuances involved.

I don't know the mechanisms or nuances here, but I do know software licenses accomplish this all the time. Maybe you can explain how they do it and what is different if anything about this proposed license or even better the OGL 1.0a.

What software licences are you talking about? Are they contractual licences? Gratuitous licences?

I'm not making a claim about how any software licences work. I'm talking about the OGL, which is a contractual licence in which the licence is expressly started to be granted as consideration for entering into a contract (see section 4).

We can unpack more intricate cases if we want.

Suppose, for instance, that A takes up the offer from W and publishes a work that contains X as OGC. And suppose that Z is derivative of X, which is some OGC in W's SRD. Under the definition of OGC, Z is OGC because it is derivative of X. A owns the copyright in Z. W owns the copyright in X.

For B to publish a work that includes Z, without infringing anyone else's IP rights, B needs a licence from W and another licence from A. W has no power to grant B a licence in respect of A's work. But A does enjoy a power to grant B a licence in respect of W's work, because has been granted that power by W in virtue of the contract that they have entered into (it is part of the consideration that flows from W to A pursuant to section 4). Furthermore, A is contractually obliged to W to make an offer to B of just such a licence (this obligation arises pursuant to sections 2, 3 and 4 of the OGL).

So when B takes up A's offer, B is granted a licence in respect of A's copyright in Z, and is also granted a licence in respect of W's copyright in X (this is a sub-licence, in the sense that A is not the copyright owner but is empowered, pursuant to their licence from W in respect of X, to confer a licence in respect of X upon downstream parties). This is why section 4 refers to a grant from the Contributors (plural). The grant of those two licences - one of which is a licence from W (effectuated, as I have just parenthetically explained, by way of sub-licensing) and the other of which is a licence from A - is the consideration that B receives in exchange for B's promise to conform to the terms of the OGL in their use of OGC and Product Identity. Just as section 4 sets out.

If B produces some further OGC Q, which is derivative of Z (and hence, let's assume, also derivate of X), and goes on to license that to C, then the analysis will be more intricate, because when C contracts with B C will be granted three licences as consideration (one from W, one from A and one from B). You can unpack the network of these grants of licence by looking at all the interlocking section 15 statements of all the parties.

From the fact that, as best I'm aware, WotC has never made a section 15 statement identifying any other contributor of OGC besides the 3E-era ones (UA/Green Ronin, and one of the MMs/White Wolf), we can also see that WotC has not been licensed by anyone else to use any of their OGC. Which is why the suggestion that Paizo has license any OGC to WotC is just wrong. Paizo has offered to do so, given that it offers to license its PF OGC to all the world - but WotC has never taken up that offer.

And for obvious reasons, in my view: WotC does not want to get bound up in the complex network contractual obligations that constitutes an OGC ecology. It wants to sit upstream of everyone else

 

[Steel_Wind]

It can be seen as a species of unjust enrichment

That is all it is in Canada. There is absolutely zero practical difference between the two in our courts. It's all unjust enrichment at this stage. Quantum meruit is still mentioned in our pleadings, but rarely in our judgments.

 

[Steel_Wind]

No they haven't. The only point of significant disagreement has between the OP and the other lawyers posting as to whether or not WotC enjoys a unilateral power to bring to an end the licences it has granted. No one but the OP has affirmed that view.

Correct. And while we were busy disagreeing with Kit Walsh (who was initially largely of the same view as the OP), she did a 180 and reversed her position in her blog later that same day - and agreed with the majority view here.

We've quibbled in the footnotes, but not in the main.

 

[pemerton]

I think I would like to take a shot at describing what I understand to be @FrogReaver 's position in terms of the neccessary component my understanding has to be present accordning to @pemerton 's exeedingly patient and informative answers. I am not a legal scholar, so I likely will mess this up, but I hope I can bring it at least one step closer to legal formulation.

I also would like to stress that I have been successfully convinced that this is not a reasonable interpretation of the OGL. This is mainly to try to bring clearity and hopefully some closure.

Assume we ignore the issue with the first publication of OGC by wizards for now, and look at the point in time where the first person A is applying the OGL to a work containing a combination of A's and WotC OGC. At this point WotC and A is in a obvious contractual relationship. However the mechanisms proposed by FrogReaver appear to require the following parts of the agreement:
(1) - Both WotC and A agree that all future offers they make of the OGL will "name" both A and WotC as licensors.
(2) - Whenever someone new is publishing any OGC A and WotC promise to add them to the list of parts of their offers
(3) - Whenever someone new is publishing any OGC A and WotC agree to effectively update the terms of their active contract to "name" the new entity a part of the contract.
Hence when next B is publishing a combination of B and WotC OGC, they are entering a legal relationship with both A and WotC, as that is what is stated in the offer from WotC. Moreover they agree to be entered into the offer and contract terms as outlined in (1)-(3) above. Hence:
(a) - Both B and WotC agree that all future offers from them will name A, B and WotC as part of the contract
(b) - All offers from A is also updated to include A, B and WotC of part of the contract (per the agreement under (2) )
(c) - The active contract between A and WotC is updated to also name B as a licensor, and part of the contract.
Under this scheme I believe it should be well defined who is parts in what contracts at any given time. However as I said I don't think this is going to work out.

The most glaring issue with this with regard to FrogReavers attempt at binding WotC contractually to the SRD is that while it might appear to be able to scale up inductively, it do not scale down to 1. A contract need to have two legal entities with the power to enter into contracts as parts from my understanding, and the definition of "Contributors" in the OGL is not enough to construct such an entity. And hence the bootstraping would require Wizards has to make that contract with either noone or themselves - which are clearly not working out.

Moreover I think there might be severe issues with (2) as it require "global knowledge" to concretize who the parts of an offer would be, something I would guess might be legally prohibited for practicality reasons. And I would think there also might be issues with an implicit update to a contract of the form required for mechanism (3) to work.

(1) is not the case - WotC don't promise to say anything about A, unless they take up A's offer of a licence in respect of A's OGC. A promises to WotC that it will name both itself and WotC in its section 15 statement.

(2) is the same - WotC make no promise to do what you have said. And we can see this in practice: WotC does not change the section 15 statement on its offer to license its SRD just because other parties have taken up that offer.

(3) I don't see that WotC has not give A any power of contractual variation of the sort you describe. What WotC has done is has given A a power to enter into new contracts which include, as consideration that flows from A, a grant of licence (by way of sub-licensing) by A to the new contractual party in respect of WotC's IP. The same point applies to (c).

(a) isn't the case, in my view - I don't see that WotC confers that sort of agency upon B.

(b) I don't get who is supposed to be updating A's offer, nor how this is understood to work. More generally, if I accept A's offer what permissions do I enjoy in respect of B's work? None that I can see.

I realise that you are not endorsing your proposal, but just putting it forward for consideration. But I really want to reiterate what I said upthread: I don't know why such heavy weather is being made of this - ie the basic viral mechanism of the OGL - when it is pretty straightforward. The interesting action is in the endurance of powers to sub-license OGC even when an upstream offer, especially WotC's upstream offer, has been withdrawn.