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

pemerton

Legend
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.
No surprise there! But in Australia, unjust enrichment is a suspect analytic category. One of our most important equity decisions this century - Farah Constructions v Say-Dee - involved the then leading equity judges on our High Court taking a huge spray at Birks and the then leading judicial exponent of Birks, the President of one of our State Courts of Appeal.

We now have a leading Birksean on our High Court - Edelman J - and those other judges are gone, so things may change. (But hopefully not too much before I retire - I don't want to have to rewrite my notes!)
 

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Steel_Wind

Legend
No surprise there! But in Australia, unjust enrichment is a suspect analytic category. One of our most important equity decisions this century - Farah Constructions v Say-Dee - involved the then leading equity judges on our High Court taking a huge spray at Birks and the then leading judicial exponent of Birks, the President of one of our State Courts of Appeal.

We now have a leading Birksean on our High Court - Edelman J - and those other judges are gone, so things may change. (But hopefully not too much before I retire - I don't want to have to rewrite my notes!)

Quantum meruit has been wholly subsumed by unjust enrichment since the early 90s. This case simply re-stated it and doubled-down on it for valuation purposes. As I have mentioned a few times, for a variety of reasons, the UK is less in step with our perceived social and legal values each decade and the break is now significant and widespread throughoutt most of our law now. No, we aren't shifting to American ones; that attraction has never been lower in our courts. It's basically a case of going our own way now.
 

pemerton

Legend
Quantum meruit has been wholly subsumed by unjust enrichment since the early 90s. This case simply re-stated it and doubled-down on it for valuation purposes. As I have mentioned a few times, for a variety of reasons, the UK is less in step with our perceived social and legal values each decade and the break is now significant and widespread throughoutt most of our law now. No, we aren't shifting to American ones; that attraction has never been lower in our courts. It's basically a case of going our own way now.
Australia has also moved increasingly away from the UK , I would say since the 80s/90s. I think the general view in Australia (perhaps hubristic) is that the quality of judicial reasoning in our courts - especially State Courts of Appeal, the Federal Court and the High Court - is superior to that in the UK.

But we are not moving in the Canadian direction. We have our own ultra-orthodox equity jurisdiction (by our standards, NZ, the UK and Canada are mostly heretical), and an extreme textualist approach to statutory and constitutional interpretation. Visitors from North America, especially the US, are normally shocked by the prevalence of formalism in both common law and statutory reasoning.
 


pemerton

Legend
I'm looking at the Creative Commons licence for the 5e SRD. Here are what seem to be its main features:

* Acceptance of the licence is very similar to the OGL v 1.0/1.0a - rather than referring to "use" of OGC, you take up the licence by "exercising the Licensed Rights under this Public License": section 1.k

* The permissions that are granted seem pretty similar to the OGL v 1.0/1.0a - they include reproducing the licensed work, and permission to "provide [the] material to the public by any means or process that requires permission under the Licensed Rights, such as reproduction, public display, public performance, distribution, dissemination, communication, or importation, and to make material available to the public" including performances, broadcasts and performances. They also include permission to produce Adapted Material, which is material in which the licensed work "is translated, altered, arranged, transformed, or otherwise modified".

* The licence doesn't extend to trademarks: section 2.b.2. Thus, while the licensed SRD contains terms like umber hulk, beholder and mind flayer, WotC has not given up whatever trademark rights it may have in respect of them. But there is no notion analogous to the contractual notion of Product Identity under the OGL v 1.0.1.0a. WotC has requested a particular mode of attribution which precludes compatibility statements of the sort that the OGL v 1.0/1.0a also precludes, and the attribution provision (section 3.a.1.A.i) makes this part of the licence terms.

* The licence isn't viral, as best I can tell. A licensed party who produces adapted material has to ensure that, however they license their work, they ensure recipients are able to meet the requirements of the licence in respect of WotC's work (section 3.a.4). But they are not obliged to license their own work, on the CC terms or any other.

* WotC's offer of the licence is gratuitous, like the OGL, and so WotC can withdraw it, as the CC FAQ explicitly notes ("As a licensor, you may stop distributing under the CC license at any time"). However, licences once granted last for the duration of the copyright in the work, and furthermore, as the FAQ also notes "anyone who has access to a copy of the material may continue to redistribute it under the CC license terms." This is because of section 2.a.5.A, which provides that "Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License."

* The licence expressly states that there is no sub-licensing (2.a.1), and so I'm curious about the best legal analysis of the automatic offer - this may differ across jurisdictions, and my thinking is very firmly within the common law framework. One possibility is that WotC has contractually bound itself to make such offers as part of the licence terms; that seems a bit counterintuitive to me, however, as I can't see how there is a sufficient state of mind to actually constitute an offer. Another possibility is that the licensee is conferred a circumscribed agency (and because it would lack any discretion, it may not attract fiduciary obligations) permitting and requiring them to make an offer, to the one who receives the material, with every distribution of the material. @S'mon, can you help out here? What if anything have I missed or misunderstood?
 


FrogReaver

As long as i get to be the frog
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.
As I said - I was less certain I could explain how consideration flowed both ways. Not surprised I got it wrong. Though upon hearing a better answer I immediately agreed it was better.
 

Ondath

Hero
  1. * WotC's offer of the licence is gratuitous, like the OGL, and so WotC can withdraw it, as the CC FAQ explicitly notes ("As a licensor, you may stop distributing under the CC license at any time"). However, licences once granted last for the duration of the copyright in the work, and furthermore, as the FAQ also notes "anyone who has access to a copy of the material may continue to redistribute it under the CC license terms." This is because of section 2.a.5.A, which provides that "Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License."
So is this the right way to understand these provisions?
  • WotC can stop distributing the CC license, i.e., they can remove the current PDF from their websites, but if you've got a copy of the PDF with the CC provisions, you can keep using it.
  • The above rule only stops if SRD 5.1's copyright ends, but I'm guessing it becomes public domain then in any case, right?
 
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FrogReaver

As long as i get to be the frog
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.
I can't speak for anyone else but for me you never come across as clear in any discussion I've been in with you - which is part of why our discussions tend to go as they do. Maybe it's because you speak Australian ;)
What software licences are you talking about?
In general most if not all of them. I don't have a specific example in mind. I can dig one up if necessary, but it'd probably be just as easy for you to pick a random one, or one you feel contains the many common elements if you wanted to talk specifics.
Are they contractual licences? Gratuitous licences?
You're the lawyer. If that's why they work differently I'll accept that.
I'm not making a claim about how any software licences work.
Right, I did.
I'm talking about the OGL,
So am I, specifically in contrast to software licenses that allow a company to license to parties they do not know. Specifically, because you claimed that was something that could not be done in 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).
Agreed.

*Just for the record, when I say you aren't clear to me, it's partly because of comments like the above. Instead of just engaging with the idea I brought up you do this weird 50,000 questions thing, and often after I answer those questions - you tend to throw another 50,000 at me.
 
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