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

[pemerton]

I have a simple question about the requirement of adding the term irrevocable to make a license like the GPL or OGL truly unable to be revoked. What is the court case that decided this in various common law jurisdictions?

I was told that this was an addition added only in the late 2000s.

And if that was the case, why? What were the circumstances that led the courts to rule this way? Because it is my understanding courts don't like to create sweeping changes. Instead, if they find a corner situation not handled by existing jurisprudence they tend to craft a ruling to handle that situation and no more.

Just adding to @S'mon's reply:

There doesn't need to be a case establishing a "requirement" - it can be enough that a case expressed a view about how general interpretive principles might operate in respect of certain words and certain contexts, and so drafters decide its better to start including an express reference to irrevocability.

 

[jgbrowning]

Given the wording of the OGL I'm a bit more confident than you that the right to sub-licence for existing licences survives termination of the offer to licence. Certainly that is what the creators of the OGL intended, and I believe that is what they achieved. The OGL does of course say that sub-licences survive termination of a licence. I'm not sure if bmcdaniel analysed that section.

Certainly I admit that from his posts he seems much more of an expert on US contract law than you or I - and if he came out strongly against that position for some reason, I'd take that seriously. But I got the impression he simply wasn't speaking on that matter.

(Potentially silly) Question: There have been several 3PP of the SRD (cleaned up [formatting wise] and grouped together into a single searchable [sometimes hyperlinked] document) that have been released as independently-named works with a separate section 15 entry. Lets call this type of work "Work A" All of the content in Work A has been declared open game content by publisher A of Work A.

Publisher B then uses the open material from Work A (as indicated in their section 15) to make a new 3PP version of the SRD called Work B.

Is there then a surviving sub-licensing issue for Publisher C who then desires to use the work of Publisher B for a new product?

(ie. can WotC actually remove any of their copyrighted material that they had once termed Open Game Content which was then subsequently declared Open Game Content is a series of other works in a license that does not require specificity regarding where or what the OGC is other than a title, date, publisher).

joe b.

 

[S'mon]

I like to think this gives those strong claims I do make - like rejection of the whole fraud notion in the other thread, and my doubts that any wholesale revocation is possible - more weight!

Heh. Yeah, your jurisprudential tone is more magisterial than mine.

 

[S'mon]

Just adding to @S'mon's reply:

There doesn't need to be a case establishing a "requirement" - it can be enough that a case expressed a view about how general interpretive principles might operate in respect of certain words and certain contexts, and so drafters decide its better to start including an express reference to irrevocability.

Yes, as Pemerton says, you can get obiter dicta (side comments) that raise doubt where none existed before. Then to be safe the lawyers adjust their advice accordingly.

 

[pemerton]

Heh. Yeah, your jurisprudential tone is more magisterial than mine.

I just thought that fraud thing needed shutting down! I mean, idle speculation is a thing, but at the moment I think accurate commentary is more useful.

 

[S'mon]

(Potentially silly) Question: There have been several 3PP of the SRD (cleaned up [formatting wise] and grouped together into a single searchable [sometimes hyperlinked] document) that have been released as independently-named works with a separate section 15 entry. Lets call this type of work "Work A" All of the content in Work A has been declared open game content by publisher A of Work A.

Publisher B then uses the open material from Work A (as indicated in their section 15) to make a new 3PP version of the SRD called Work B.

Is there then a surviving sub-licensing issue for Publisher C who then desires to use the work of Publisher B for a new product?

(ie. can WotC actually remove any of their copyrighted material that they had once termed Open Game Content which was then subsequently declared Open Game Content is a series of other works in a license that does not require specificity regarding where or what the OGC is other than a title, date, publisher).

joe b.

You're asking about sub-licencing of SRD OGC by eg 5eSRD.com using the OGL 1.0, following revocation of WoTC's continuing offer to licence. As far as I can see, that is fine, and not something WoTC can stop. But Pemerton is less sure than I am, so take that with a grain of salt maybe.

 

[pemerton]

(Potentially silly) Question: There have been several 3PP of the SRD (cleaned up [formatting wise] and grouped together into a single searchable [sometimes hyperlinked] document) that have been released as independently-named works with a separate section 15 entry. Lets call this type of work "Work A" All of the content in Work A has been declared open game content by publisher A of Work A.

Publisher B then uses the open material from Work A (as indicated in their section 15) to make a new 3PP version of the SRD called Work B.

Is there then a surviving sub-licensing issue for Publisher C who then desires to use the work of Publisher B for a new product?

(ie. can WotC actually remove any of their copyrighted material that they had once termed Open Game Content which was then subsequently declared Open Game Content is a series of other works in a license that does not require specificity regarding where or what the OGC is other than a title, date, publisher).

You're asking about sub-licencing of SRD OGC by eg 5eSRD.com using the OGL 1.0, following revocation of WoTC's continuing offer to licence. As far as I can see, that is fine, and not something WoTC can stop. But Pemerton is less sure than I am, so take that with a grain of salt maybe.

Just to follow up on S'mon's post:

You are asking about the thing he and I have been discussing, over the most recent page or two of this thread but also in other recent threads, and in earlier threads going back 10 years or so!

I think S'mon is probably right.

Part of what WotC has conferred on A in your scenario is a power to licence the OGC to B, which is what makes B's publication lawful vis-a-vis WotC's copyright in the SRD. Now WotC rescinds its standing offer to license the SRD under the OGL v 1.0a. I think the better view is S'mon's: because WotC can't unilaterally end any of these contracts, B continues to enjoy a contractual power to license the OGC to C.

Thus, to put it in colloquial terms, WotC can't put the genie back in the bottle.

The reason I'm more hesitant than S'mon is not for any concrete reason, but (i) another expert poster, who is more expert than me, was less certain than I had been up to that point, and than S'mon still is - and so I'm dialling back my own certainty a little bit; and (ii) there may be relevant principles of US copyright and licensing law that come into play in this sort of situation, and if there are I don't know about them! Admittedly no one has pointed to any such principles, but again I'm not wanting to be more certain than I feel my expertise permits.

TL;DR - I think S'mon is probably right.

 

[robconley]

Appreciate you digging into this.

Summary
A variation to a software licensing agreement to make it perpetual rather than of limited duration extended the original agreement
rather than superseded it. The termination provisions in the original agreement had not been expressly deleted and they continued
to have effect.


Held
Application granted.
(1) The licence had been terminated. "Perpetual" had different shades of meaning, including "incapable of being brought to an
end" and "of indefinite duration, but subject to any contractual provisions governing termination". The latter interpretation of
"perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement
and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L
terminated the support agreement, it also terminated the licence. The variation agreement had plainly not been intended wholly
to displace the licence agreement: it stated that the licence would be extended rather than replaced.

So if I am reading this correctly that if I was to offer you (S'mon) perpetual terms but among those terms was a termination clause. The court held that the termination clause still applies?

Also @pemerton what is the key case in an Australian jurisdiction that references the need to include the use of irrevocable in the license to achieve the goals of the licenses like the GPL and OGL?

Rob's Notes: I am not a lawyer in my day job I am a software systems engineer who deals with the control (operations, motion) of complex machinery. My skill, the reason I get paid, is that I am very good at analysis. I can be asked about a feature or problem with one of these machines and usually figure it out pretty fast and accurately

When I got involved in my local government I found these skills useful there in coming up with solutions using the existing by-laws, laws, and regulations. What I don't know are the details of the various important procedures one has to do in the legal field. And I have to know enough to ask the right questions. But that is also one thing you learn as a systems engineer, how to ask the right questions to get that knowledge so you learn what needs to be done.

Also like the law, in the field, the problems associated with complex machinery rarely have black and white causes. There is a certain degree of fuzziness caused by factors like fatigue, the operating environment, and so on that often can be maddeningly hard to deal with.

 

[jgbrowning]

You're asking about sub-licencing of SRD OGC by eg 5eSRD.com using the OGL 1.0, following revocation of WoTC's continuing offer to licence. As far as I can see, that is fine, and not something WoTC can stop. But Pemerton is less sure than I am, so take that with a grain of salt maybe.

Just to follow up on S'mon's post:

[snip]

I just want to say thanks to both of you for taking the time to discuss this.

joe b.

 

[Enrahim2]

Who used this word? In what I have seen, the leak identifies as one term of the new OGL that the existing OGL is not an authorised licence agreement.

Sorry my mistake, correct formulation is "no longer authorized" as you say. By the way, this source give a bit more context to that statement tha the Gizmodo quote more clearly showing that the language us used in the explicit context of stating that 1.1 is an "update to the previously available OGL 1.0(a)" This context is missing from the Gizmodo quote, hence making the likely association with the section 9 update wording less clear.

Publishers who have licensed their work under the OGL v 1.0a oblige future licensees to conform to the terms of that licence. Section 9 allows a future licensee to use any authorised licence to use OGC. So the only way to bring OGC into the new scheme that I can see is to make v 1.1 an authorised licence for existing section 9 purposes. But that would then mean that existing licensees (plus future sub-licensees of those existing licensees) could use new OGC under the existing OGC (and presumably would do so, so as to avoid the royalty obligation).

I think this is what you get upside down. Section 9 is asymmeticly stated, but not in terms of "future" and "past", but rather in terms of "any authorized" and plain "any". Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), it could still be considered a version of this lisence per section 9. Hence anyone can distribute any 1.0a content as long as they use an authorized lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.