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

[Yora]

So couldn't (for example) Paizo just create a dummy corporation based in the EU and register everything under that, leaving WotC without recourse?

Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.

 

[Art Waring]

Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.

Ouch, that's pretty harsh.

 

[GMforPowergamers]

Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.

is there a Pathfinder international market worth doing that?

 

[Yora]

I would assume it would be much easier to create a new Pathfinder 3rd edition system from scratch.

 

[Deset Gled]

I find it very hard to believe that WotC would attempt to revoke earlier versions of the OGL. That wouldn't just be burning bridges, it would be nuking their relationship with the community and third party creators. It would come with a guarantee of bad press and extreme likelihood of litigation. Not to mention how it would leave a huge opening for someone else to come along with a true open licence and challenge D&Ds market position.

I suppose it's a small possibility that they would try, but I find it very hard to believe they would go that far. I guess stranger things have happened.

 

[h4b3rm4s]

I have not been able to find any games mechanics cases on RPGs.

Did you find any case at all regarding RPGs specifically?

Also, would you (and other lawyers in the thread) recommend any casebook / book / resources regarding game law? I am a foreign lawyer with much interest in studying aspects of gaming (tabletop, videogames etc.) related to the law. Thx

 

[Snarf Zagyg]

True. But it is apt as an example, because of the strange nature of an open license. An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.

Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.

It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.

The open license will always be valid for any products published while the open license was open. WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any new material as of the date it was revoked.

So, no. I don't agree with your certainty, or the legislative analogy. Contract law varies greatly from state-to-state, and basic issues like whether or not reliance (and subsequent work) on a non-exclusive license makes it irrevocable turns on issues of state law, or even whether a license might be an implied contract. None of these are similar to legislation binding future legislatures- which is (afaik) incredibly settled.

Given the inherent complexities of the issues involved, I would be very hesitant to offer any kind of opinion without reviewing the pertinent parts of the Restatement of Contracts and Nimmer, and having a plausible jurisdiction to think about in terms of the law.

Also? It seems like work. I'm more into unicorns and stuff.

ETA- that said, I appreciate your efforts, although I am wondering when someone is going to start talking about the differences with broilers and young chickens.

 

[S'mon]

True. But it is apt as an example, because of the strange nature of an open license. An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.

Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.

It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.

The open license will always be valid for any products published while the open license was open. WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any new material as of the date it was revoked.

I agree the licence is a unilateral contract offer, and that offers can be revoked. But the real issue is that the OGL licences (eg) the 5e SRD to Party X, and permits Party X to sub-licence work including the 5e SRD to Party Y, on the same terms. That's how Open Source works. Since all WoTC OGC has already been republished by 3PPs, and is available for sub-licensing, the most important question is whether the third party publishers can continue to sub-licence, or whether (eg) 5eSRD.com can be taken down by WOTC. I think not, but obviously I can't be 100% certain how a judge would rule.

If sub-licencing continues, then WoTC de-authorising the 1.0 OGL is moot for publishers who don't sign the 1.1 OGL. They can just refer to another 3PP for their licencing.

 

[DavyGreenwind]

Yes, I'm aware of the parol evidence rule. I teach it.

It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.

Wow! I loved my Contracts class. And I think our disagreement highlights the difficulty of the question.

The reliance principle might be enough to overcome parol evidence issues, but there are other issues which, in my opinion, tip the balance away from irrevocability. 1. In licensing law, courts have expressed a strong inference against irrevocability unless irrevocability is explicitly stated. 2. The consideration given by licensees to WotC is exceptionally weak. They only have to agree to abide by the terms of the license, which basically reiterates what they are already not allowed to do under copyright and trademark law. In return, they've been given access to WotC material that has given some of them a living. (In in WotC's best interest to foster a healthy fan community, but that is beside the point legally speaking). Consideration makes a contract binding, no matter how minor, but as a factor in determining the strength of a reliance interest, it does not help.

And as I have mentioned above, this being an open license essentially makes it a unilateral contract, which has its own weird rules about offer, acceptance, and revocability.

Third, looking at WotC's language in the Q&A, they are not, strictly speaking, claiming the license is irrevocable. They could say they were merely describing the status of the current license (which does not revoke prior licenses), which does not preclude a future license that does revoke prior licenses.

It would certainly be strong evidence against them in court. It may even tip the scales towards irrevocability. But I just don't see a United States judge saying that the 5e SRD must be open for all time.

Gosh, this is some good debate.

 

[S'mon]

It would certainly be strong evidence against them in court. It may even tip the scales towards irrevocability. But I just don't see a United States judge saying that the 5e SRD must be open for all time.

That would imply that Open Software is not open either - the licence can be revoked?

My feeling is that if WoTC-Hasbro really pushes it, they will get a massive fight from interested parties. And they would probably get mauled, at least. They would be sensible not to try to 'revoke' the OGL 1.0. But conversely I do think they can get away with saying Section 9 of OGL 1.0 no longer applies to material published under OGL 1.1, and your legislation analogy I think may have some merit there.

 

[DavyGreenwind]

So, no. I don't agree with your certainty, or the legislative analogy. Contract law varies greatly from state-to-state, and basic issues like whether or not reliance (and subsequent work) on a non-exclusive license makes it irrevocable turns on issues of state law, or even whether a license might be an implied contract. None of these are similar to legislation binding future legislatures- which is (afaik) incredibly settled.

Given the inherent complexities of the issues involved, I would be very hesitant to offer any kind of opinion without reviewing the pertinent parts of the Restatement of Contracts and Nimmer, and having a plausible jurisdiction to think about in terms of the law.

Also? It seems like work. I'm more into unicorns and stuff.

ETA- that said, I appreciate your efforts, although I am wondering when someone is going to start talking about the differences with broilers and young chickens.

Hahaha, I thought about the young chickens.

And if I sound certain, that's on me. You are right, none of this is remotely settled and could have totally different outcomes depending on state and federal circuit.

For me, the bottom line is I don't see a United States judge making irrevocable a license that does not say "irrevocable." That's totally contrary to US common law and the restatement.

For the legislative analogy, I respect your opinion, but stand by it as a useful academic comparison.

 

[DavyGreenwind]

That would imply that Open Software is not open either - the licence can be revoked?

My feeling is that if WoTC-Hasbro really pushes it, they will get a massive fight from interested parties. And they would probably get mauled, at least. They would be sensible not to try to 'revoke' the OGL 1.0. But conversely I do think they can get away with saying Section 9 of OGL 1.0 no longer applies to material published under OGL 1.1, and your legislation analogy I think may have some merit there.

Open software is different, because software code and copyright is a huge can of worms. I only know enough about it to know to stay the hell away from it.

 

[S'mon]

Open software is different, because software code and copyright is a huge can of worms. I only know enough about it to know to stay the hell away from it.

The code is copyright protected as a literary work. Normal contract rules apply to software licensing.

 

[Snarf Zagyg]

Hahaha, I thought about the young chickens.

And if I sound certain, that's on me. You are right, none of this is remotely settled and could have totally different outcomes depending on state and federal circuit.

For me, the bottom line is I don't see a United States judge making irrevocable a license that does not say "irrevocable." That's totally contrary to US common law and the restatement.

For the legislative analogy, I respect your opinion, but stand by it as a useful academic comparison.

Eh, I try to avoid definite statements. For example, I know that judges can, and do, make licenses irrevocable by construing them as a contract supported by consideration ..... given that there are mutual obligations, an actual termination clause, and the possibility of the proverbial peppercorn (not to mention the change in status), it's rather hard to say.

But who knows? It's all idle speculation at this point.

 

[Mistwell]

This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.

So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."

I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.

So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their current policy, but I don't think it is an accurate representation of their own legal rights.

You know government legislative drafting isn't private open licensing and doesn't even draw from the same body of law and rules.

 

[DavyGreenwind]

You know government legislative drafting isn't private open licensing and doesn't even draw from the same body of law and rules.

It is a useful analogy nonetheless. See my response above.

 

[Mistwell]

Open software is different, because software code and copyright is a huge can of worms. I only know enough about it to know to stay the hell away from it.

Wait, you're speaking to open licensing rules but you stay away from open software, where all the court cases about open licensing can be found?

I'm going to give some genuine advice which you're free to ignore - you're making a mistake by speaking with authority on this topic. This is a complicated field and if you don't know open licensing software caselaw, you're probably a tad outside your areas of legal focus as there is a great deal of overlap.

 

[S'mon]

Wait, you're speaking to open licensing rules but you stay away from open software, where all the court cases about open licensing can be found?

I'm going to give some genuine advice which you're free to ignore - you're making a mistake by speaking with authority on this topic. This is a complicated field and if you don't know open licensing software caselaw, you're probably a tad outside your areas of legal focus as there is a great deal of overlap.

I think OP underestimated how many other lawyer nerds frequent EN World.

 

[Snarf Zagyg]

I think OP underestimated how many other lawyer nerds frequent EN World.

Three lawyers, four opinions.

Same as it ever was.

 

[Ulfgeir]

Three lawyers, four opinions.

Same as it ever was.

And all are mutually exclusive... As if it was done by deception, trickery and vaguely formulated statements. Everyone likens lawyers to devils, but seems Fey is more appropriate.