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

[FrogReaver]

Sure, but that mental state is just a gratuitous promise and so not binding. Whereas the goal of the CC is to make the "automatic offers" immune to changes of mind.

My understanding is that a gratuitous promise/offer is one made without consideration.

Why does the consideration within the contract of A and B then not count as consideration in relation of the 'automatic offer' toward C? Is the principle that the consideration must flow from C to A?

 

[pemerton]

I agree with you that OGC must exist as OGC before it can be licensed. If it didn't exist then there would be nothing to license.

Obviously, a licence can only be granted over copyrighted work if the work exists.

But the work does not become OGC - in any sense that has legal meaning - except by being the subject matter of a licensing agreement on the terms set out in the OGL v 1.0/1.0a.

In practical terms, if someone wants to read WotC's SRD page <https://media.wizards.com/2016/downloads/DND/SRD-OGL_V5.1.pdf> and say "Cool, there's all this OGC there that is free to use" no one is going to quibble. Everyone knows what that person means.

But the point of this thread is to understand the legal operation and effect of the OGL licensing regime, including what powers (if any) WotC might enjoy to shut it down. In that context, blurring the difference between (a) an offer to license that is constituted by some notices pointing to (i) some content and (ii) some licence terms, and (b) an actual licence agreement expressed in those terms in respect of that content, is just hopeless. Because that blurring makes it impossible to understand any of the legal reasons and legal arguments that are actually relevant to addressing the matters at hand.

Similarly: when one of my kids is unpacking the shopping and comments (say) that the butter is heavier than the container of olives I know what they mean; but that doesn't make it unreasonable, in relevant contexts, to point out that what they're really noticing is density rather than mass. Sometimes, precision and care with descriptions actually matters to explanation and understanding.

 

[pemerton]

My understanding is that a gratuitous promise/offer is one made without consideration.

I'm particularly making the point that the offer is made freely, with no legal obligation to make it, and likewise no obligation to keep it on foot. It contrasts, for instance, with an option that is part of a contract.

Why does the consideration within the contract of A and B then not count as consideration in relation of the 'automatic offer' toward C? Is the principle that the consideration must flow from C to A?

A could contractually promise to B to make offers to C. If A revoked the offer, A would then be in breach of contract. The most obvious remedy would be damages to B for the loss they suffer as a result of C not having the opportunity to take up the object.

This is not what the CC licence is doing. It uses a notion of "automatic offer" that is triggered by any party receiving the licensed material, and which they accept by using that material. It does not seem to depend upon A actually offering at all, nor upon any meeting of minds over a bargain. I posted what I think is a good description of it, not too far upthread:

Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright, 14 GEO. Mason L. REV. 271 (2007).

The following is from pp 313-4 (footnotes omitted):

Professor Merges argues that "for content to stay in the semicommons envisioned by the Creative Commons device, there must be an unbroken chain of privity of contract between each successive user of the content." The restriction that any reuse or distribution of the work contain the license, or a link to the license, is an attempt to bring all users who might encounter a copy of the work and subsequently use the work into privity with the copyright owner. The Creative Commons licenses also attempt to assure privity through clauses in section eight of the licenses, which state that each time a copy of the work or a derivative work is distributed, publicly performed, or digitally performed, the copyright owner "offers to the recipient a license to the Work on the same terms and conditions as . . . under this license." The use of a license attached to copies of a copyrighted work and the requirement that users reproduce that license on any subsequent copies as a means of trying to assure privity of contract is a strange and yet ubiquitous phenomenon in recent decades.

The practice of attaching licenses to each copy might be more accurately characterized as creating equitable servitudes instead of contract
rights. Are these really contract rights that are being created, or are they more accurately characterized as equitable servitudes? While equitable servitudes are applicable to real property, the possibility of creating such servitudes on chattels was presented almost a century ago but never fully embraced. Perhaps it is appropriate to say that the Creative Commons licenses attempt to create an equitable servitude that "runs with" the intangible work embodied in the tangible "chattel" copy. Characterizing these license conditions as equitable servitudes may, in fact, be a more accurate characterization.​

The basic puzzle is - how does a contractual agreement between me and you create the result that every time some third party reads the work I've licensed to you, they are able to (as it were) accept an offer from me "automatically", regardless of any actual intention on my part.

This is why it is being described as a servitude, like a restrictive covenant in the real estate context: what it actually seems that the contract tries to do is to add a new "attribute" to the licensed content, namely, the attribute of triggering a relationship of legal obligation and permission between me and the third party that is triggered by them engaging with my property, that I've licensed to you, in a certain way. It's a fiction to describe that as a contract between me and them.

Whether it is a legally effective fiction I don't know. I haven't yet found anyone - scholar or court - actually arguing that, or explaining how, it works. But my literature review hasn't been comprehensive - I just did a couple of keyword searches on Hein Online.

 

[FrogReaver]

I'm particularly making the point that the offer is made freely,

Can it be said the offer is made freely if it's made to fulfill a contractual obligation?

with no legal obligation to make it, and likewise no obligation to keep it on foot. It contrasts, for instance, with an option that is part of a contract.

Aren't contractual obligations, legal obligations?

 

[FrogReaver]

A could contractually promise to B to make offers to C. If A revoked the offer, A would then be in breach of contract. The most obvious remedy would be damages to B for the loss they suffer as a result of C not having the opportunity to take up the object.

I think we all agree here.

This is not what the CC licence is doing. It uses a notion of "automatic offer" that is triggered by any party receiving the licensed material, and which they accept by using that material. It does not seem to depend upon A actually offering at all,

The CC-BY-4.0 license says the offer is from the Licensor. Are you asserting that what the license claims is an offer from the Licensor is not actually an offer at all?

For reference:
"Every recipient of the Licensed Material automatically receives an offer from the Licensor"

 

[tomBitonti]

This statement is false. The phrase Open Gaming Content has no legal meaning except as part of the language used by parties to a licensing agreement to identify the subject matter of the agreement, as well as the permissions and obligations that arise under the agreement.

Sure, I’ll go with this. Anyways, it’s largely besides the point. My core question was about how section 4 works and how understand how the ”Contributors grant” text fits with the “sub-licenses” text that appears elsewhere. Despite my failure to detail the section 4 mechanism, I’m still left with what seems to be a plain text contradiction. My layman’s read of section 4 is that there is an initial action (acceptance) and a consequential action (the grant by the contributors).

I think you object to that read because it breaks basic contract rules — the problem being, and pardon my stumbling language use, that a contributor not party to the acceptance action can’t be made to grant a license in such a manner. But then there is a second problem: If this is true, then what does section 4 actually mean, if anything?

TomB

 

[pemerton]

My core question was about how section 4 works and how understand how the ”Contributors grant” text fits with the “sub-licenses” text that appears elsewhere. Despite my failure to detail the section 4 mechanism, I’m still left with what seems to be a plain text contradiction. My layman’s read of section 4 is that there is an initial action (acceptance) and a consequential action (the grant by the contributors).

Section 4:

In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.​

Notice that section 4 says nothing about acceptance.

I'm not sure what you mean by "consequential" - but the exchange of consideration and the acceptance of the offer are simultaneous. If they are not, then no contract arises. Suppose someone says "Do you want to buy my bike" (invitation to treat) and I think about it for a few minutes and say "OK, sure, here's $100" (offer) and then they say "Yeah, OK" (acceptance), we have offer, acceptance, consideration - a promise to transfer the bike in exchange for a promise to pay $100 - and hence a contract. The promises to transfer and to pay become binding at the moment the contract is formed by the vendor's acceptance of my offer of $100.

In the case of the OGL, at the moment a would-be licensee uses the offered material they accept the offer, the consideration passes (ie the grants of licences from licensors, and the duty on the licensee to uphold their obligations under the OGL).

Consider the following scenario, in which each of A, B, C, D and W is a corporation, and all agreements are on the terms set out in terms of the OGL v 1.0a.

W licenses its material X and its material Y to A. A publishes a work that contains X and also their own material Z; Z is derivative of X. A's section 15 statement includes W's work and A's work.

W also licenses X and Y to B. B publishes a work that contains Y and also their own material Q; Q is derivative of X. B's section 15 statement includes W's work and B's work.

C wishes to publish a work that contains Z, Q and also their own material R, where R is derivative of Q and X. C does not wish to infringe anyone's copyright without permission. C therefore needs a licence from each of W, A and B. Therefore C enters into a licence agreement with A and B, whereby A and B also exercise their powers to sub-license W's content to C. C's section 15 statement includes W's work, A's work, B's work and C's work. C has been granted a licence by three Contributors (using that phrase as it appears in section 4): W (grant by way of sub-licence from A and B), A and B (neither of these grants is by way of sub-licence - each of A and B is licensing their own work, ie Z and Q respectively).

Is there also a contract between W and C? Assuming W's offer remains on foot, probably yes: C is using W's content X and Y (and thus accepting the offer) and consideration is flowing from W to C (the grant of a licence). If W's has withdrawn its offer, than probably not, as there can be no contract with an offer. Does it matter whether or not there is a contract between W and C? I don't think anyone has yet identified such a scenario.

B winds up (ie ceases to exist). D wishes to publish a work that contains, inter alia, Q. D does not wish to infringe W's copyright - hence D needs a licence (Q is derivative of X, which is W's material). D therefore takes up C's offer, and receives a licence in respect of X (a sub-licence) and in respect of Q (a sub-licence). Is D also in a contract with W? See above. Is D also in a contract with B? No, B no longer exists. Is D also in a contract with D's successor in title to the copyright in Q? To me that seems unlikely: D probably doesn't know who that is, and that person is probably not making any offer. Does that person have any complaint against D for copyright infringement? Not that I can see: B granted C a power to sub-license in respect of Q, and nothing seems to have brought that grant of power to an end (maybe there is some such rule in the copyright law of a particular jurisdiction, about termination of licences upon expiration of the copyright holder - if so, I don't know about it).

I don't see where any contradictions are occurring.

I think you object to that read because it breaks basic contract rules — the problem being, and pardon my stumbling language use, that a contributor not party to the acceptance action can’t be made to grant a license in such a manner.

There is no "being made to grant". There is simply "granting", that is, the coming into being of a licence that permits a licensee to use the licensor's property. Some grants of licence are effectuated by the owners themselves. Some are effectuated by way of sub-licence. As per the example above, the way the OGL is designed to work - ie creating an ever-expanding network of contractual licence agreements - may mean that the act of sub-licensing also generates a licence agreement directly with the head licensor. But that is not essential: this is why the better legal view is (in my view) that W's withdrawal of its standing offer to license its work will not affect the existence and the possibility of expansion of an OGC ecology which has that work at its centre. Because the powers to sub-license, and thus to generate licence grants from W to new parties in respect of that work, endures.

 

[tomBitonti]

Section 4:

In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.​

Notice that section 4 says nothing about acceptance.

I'm not sure what you mean by "consequential" - but the exchange of consideration and the acceptance of the offer are simultaneous. If they are not, then no contract arises. Suppose someone says "Do you want to buy my bike" (invitation to treat) and I think about it for a few minutes and say "OK, sure, here's $100" (offer) and then they say "Yeah, OK" (acceptance), we have offer, acceptance, consideration - a promise to transfer the bike in exchange for a promise to pay $100 - and hence a contract. The promises to transfer and to pay become binding at the moment the contract is formed by the vendor's acceptance of my offer of $100.

In the case of the OGL, at the moment a would-be licensee uses the offered material they accept the offer, the consideration passes (ie the grants of licences from licensors, and the duty on the licensee to uphold their obligations under the OGL).

Consider the following scenario, in which each of A, B, C, D and W is a corporation, and all agreements are on the terms set out in terms of the OGL v 1.0a.

W licenses its material X and its material Y to A. A publishes a work that contains X and also their own material Z; Z is derivative of X. A's section 15 statement includes W's work and A's work.

W also licenses X and Y to B. B publishes a work that contains Y and also their own material Q; Q is derivative of X. B's section 15 statement includes W's work and B's work.

C wishes to publish a work that contains Z, Q and also their own material R, where R is derivative of Q and X. C does not wish to infringe anyone's copyright without permission. C therefore needs a licence from each of W, A and B. Therefore C enters into a licence agreement with A and B, whereby A and B also exercise their powers to sub-license W's content to C. C's section 15 statement includes W's work, A's work, B's work and C's work. C has been granted a licence by three Contributors (using that phrase as it appears in section 4): W (grant by way of sub-licence from A and B), A and B (neither of these grants is by way of sub-licence - each of A and B is licensing their own work, ie Z and Q respectively).

Is there also a contract between W and C? Assuming W's offer remains on foot, probably yes: C is using W's content X and Y (and thus accepting the offer) and consideration is flowing from W to C (the grant of a licence). If W's has withdrawn its offer, than probably not, as there can be no contract with an offer. Does it matter whether or not there is a contract between W and C? I don't think anyone has yet identified such a scenario.

B winds up (ie ceases to exist). D wishes to publish a work that contains, inter alia, Q. D does not wish to infringe W's copyright - hence D needs a licence (Q is derivative of X, which is W's material). D therefore takes up C's offer, and receives a licence in respect of X (a sub-licence) and in respect of Q (a sub-licence). Is D also in a contract with W? See above. Is D also in a contract with B? No, B no longer exists. Is D also in a contract with D's successor in title to the copyright in Q? To me that seems unlikely: D probably doesn't know who that is, and that person is probably not making any offer. Does that person have any complaint against D for copyright infringement? Not that I can see: B granted C a power to sub-license in respect of Q, and nothing seems to have brought that grant of power to an end (maybe there is some such rule in the copyright law of a particular jurisdiction, about termination of licences upon expiration of the copyright holder - if so, I don't know about it).

I don't see where any contradictions are occurring.

There is no "being made to grant". There is simply "granting", that is, the coming into being of a licence that permits a licensee to use the licensor's property. Some grants of licence are effectuated by the owners themselves. Some are effectuated by way of sub-licence. As per the example above, the way the OGL is designed to work - ie creating an ever-expanding network of contractual licence agreements - may mean that the act of sub-licensing also generates a licence agreement directly with the head licensor. But that is not essential: this is why the better legal view is (in my view) that W's withdrawal of its standing offer to license its work will not affect the existence and the possibility of expansion of an OGC ecology which has that work at its centre. Because the powers to sub-license, and thus to generate licence grants from W to new parties in respect of that work, endures.

There’s too much here for me to respond to it in detail.

Re: “accept” vs “agree”, yes, I used the wrong word. But, that doesn’t take away my question: How to fit “Contributors grant” to “sub-license”. That’s the key question, which has still not been addressed.

Re: “consequence”. You have taken one meaning of the word while discounting others. For section 4, the grants do not occur unless there is an agreement. The timing of when the considerations happen seems irrelevant. That the grants occur because of the agreement make the grants a consequence of the agreement.

Re: lack of contradiction. Your statements that follow take it that the grant of licenses by section 4 is sub-licensing. Since my question is, basically, how can that be? The grants flow from the contributors and the text seems to nowhere says that a right of sub-licensing has been granted, other that the later use of the term. The conclusion — that there is sub-licensing — is being used to prove that there is sub-licensing.

Can you answer specifically how a contributor granting a license fits the meaning of sub-licensing? My plain text read is that the license is granted directly by the contributor, and that doesn’t seem to fit the definition of sub-licensing that you gave.

TomB

 

[pemerton]

There’s too much here for me to respond to it in detail.

Re: “accept” vs “agree”, yes, I used the wrong word. But, that doesn’t take away my question: How to fit “Contributors grant” to “sub-license”. That’s the key question, which has still not been addressed.

The contributor grants a licence. That grant is effectuated by way of sub-licence.

Your statements that follow take it that the grant of licenses by section 4 is sub-licensing. Since my question is, basically, how can that be? The grants flow from the contributors and the text seems to nowhere says that a right of sub-licensing has been granted, other that the later use of the term.

Section 4 - the licensee receives a permission to use the OGC. "Use" is a defined term. The definition includes "license". Hence the licensee is given a power to license the OGC. A licence granted by a licensee in respect of material in which they don't own the copyright (ie they are a mere licensee) is (by definition) a sub-licence.

 

[FrogReaver]

The contributor grants a licence. That grant is effectuated by way of sub-licence.

Section 4 - the licensee receives a permission to use the OGC. "Use" is a defined term. The definition includes "license". Hence the licensee is given a power to license the OGC. A licence granted by a licensee in respect of material in which they don't own the copyright (ie they are a mere licensee) is (by definition) a sub-licence.

consider a typical sub licensing agreement

Does it actually say the party that ‘owns’ the thing being licensed does the granting? - I don’t think so. I think it would say the sublicensor grants or something similar. Though you’ve seen a lot more sublicensing agreements than I do I could be wrong.