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

[FrogReaver]

Welcome to the absolute hellscape that is license compatibility analysis and linking exceptions, I guess.

Luckily they used CC-BY i guess. No share alike. Share alike would have been a bad thing for 3pp since IP and OGC cannot be separated in a work like it can under OGL. So it would have been the whole derivate/adapted work that must be licensed the same way when using the SA (Share Alike).

 

[pemerton]

For viral versions of CC licenses, they will have the ShareAlike (SA) license set. So, Cc-BY-SA, CC-BY-NC-SA, etc. those (attempt) to require all derivatives to be licensed under the same (or compatible) terms. I’m not sure how they legally define compatible or any of that.

Having a quick look at CC-BY-SA, the relevant provisions are these (sections 3.b.1, 1.c):

The Adapter’s License You apply must be a Creative Commons license with the same License Elements, this version or later, or a BY-SA Compatible License.

BY-SA Compatible License means a license listed at creativecommons.org/compatiblelicenses, approved by Creative Commons as essentially the equivalent of this Public License.​

My intuition is that a party to the CC-BY-SA licence who felt that another party's use of a CC-approved licence violated the terms of the contract could proceed that party, and perhaps also against CC (which is based in the US, I think: https://wiki.creativecommons.org/images/4/49/Charter_cc.pdf) to challenge their approval of the suspect licence. (Whether that latter would be a private law action or judicial review I'm not sure, but I would expect the standard to be a moderately permissive reasonableness test.)

 

[FrogReaver]

For viral versions of CC licenses, they will have the ShareAlike (SA) license set. So, Cc-BY-SA, CC-BY-NC-SA, etc. those (attempt) to require all derivatives to be licensed under the same (or compatible) terms. I’m not sure how they legally define compatible or any of that.

CC has a webpage discussing compatibility of their various licenses.

 

[S'mon]

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?

Without bothering to research (it will be a few weeks before my Agency class) it does not look like an Agency relationship to me.

 

[pemerton]

It seems to me there is an actual mental state here as well is between A and B. The mental state is just in respect to the first licensee (let's call him B), who presumably wouldn't have agreed to the contract if WOTC (let's call them A) wouldn't have agreed to make the same offer to everyone else (let's call them C).

Is your opinion that mental state that constitutes an offer cannot occur in that fashion?

My point is that the "automatic offer" is supposed to occur even if W(A) is unaware of it, not a participant in the relevant event, has retracted its own direct offer to licence, etc.

A contract in the common law is, at its core, a meeting of minds over a bargain. Where, here, is the licensor's mind?

I understand going to agency to resolve, but the license doesn't read like it's making anyone an agent so for me it doesn't seem like a strong theory.

The licence is meant to be neutral as between jurisdictions, so I'm not surprised that it doesn't use the language of common law private law. In civilian contract law, as I understand it, it is the intention to establish legal relations that is key, and not any notion of a bargain, and so the "automatic offer" may not be so puzzling.

But when I look around at the automatic offer for someone who is actually bargaining, the person whom I see is the licensee who has distributed the work such that it is received by the new party. And my generic term for a party who can bargain on behalf of another - in this case, a licensor - is agent.

Without bothering to research (it will be a few weeks before my Agency class) it does not look like an Agency relationship to me.

Are you comfortable with an automatic offer flowing directly from a licensor that is not connected to any action or event in which they participate? To me it seems very artificial. That's why I find the idea of agency attractive, because at least that puts some boots on the ground - though I find it unattractive for other reasons (eg the potential fiduciary implications).

EDIT: @S'mon, I added a reply to you after you hit the XP button. It doesn't add much except to reiterate my uncertainty!

 

[Aspirinsmurf]

A contract in the common law is, at its core, a meeting of minds over a bargain. Where, here, is the licensor's mind?

When he accepted those terms to begin with? If I voluntarily enter into a contractual relationship that obliges me to act in a certain way going forward, I've voluntarily done so, presumably because I see some benefit in doing so.

 

[FrogReaver]

When he accepted those terms to begin with? If I voluntarily enter into a contractual relationship that obliges me to act in a certain way going forward, I've voluntarily done so, presumably because I see some benefit in doing this.

Thank you, you said that more succinctly than I would have.

 

[pemerton]

When he accepted those terms to begin with? If I voluntarily enter into a contractual relationship that obliges me to act in a certain way going forward, I've voluntarily done so, presumably because I see some benefit in doing so.

But what action is the licensor taking? It's not like an option establishing a offer to a known party that is not revocable at will.

It's a promise to offer,in the future, to an indefinite and unknowable number of parties who are identified only by receiving your IP as distributed by your licensee - but not by way of sub-licence!

The common law has a default scepticism about offers to offer, but this has at least a hint of that about it. I'm not saying that it doesn't work - I'm just intrigued as to how it does.

 

[FrogReaver]

But what action is the licensor taking? It's not like an option establishing a offer to a known party that is not revocable at will.

IMO. No action is required per the license - it's automatic. Or if we go back to first principles - the act of forming the license agreement with their first licensee was the action the licensor took.

Legally I don't know if that is sufficient - you seem to have doubts.

It's a promise to offer,in the future, to an indefinite and unknowable number of parties who are identified only by receiving your IP as distributed by your licensee - but not by way of sub-licence!

The original offer is to an indefinite and unknowable number of parties who are only identified when they share your material or adapted material from it. If it's not a problem with the original offer then why would that be a problem here?

The only difference is the promise to do that (or promise isn't a good word as WOTC agreed to make the offer automatically).

The common law has a default scepticism about offers to offer, but this has at least a hint of that about it. I'm not saying that it doesn't work - I'm just intrigued as to how it does.

I understand that. I guess the question to explore is can you contractually bind yourself to make an offer in the future. Do you think it's never possible to do that, or just not possible in these circumstances?

 

[Aspirinsmurf]

In regards to the CC licenses, there might be some illuminating decisions that touch on the subject. I haven't read them all.

CC Legal Database

This database contains case law and legal scholarship about CC licenses and the issues that relate to their enforceability and interpretation.

legaldb.creativecommons.org