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

[glass]

I don't think the drafting of the OGL is the real issue here. The claims that WotC are making are of course expressed in terms of the drafting, but were it drafted differently WotC would just frame its claims differently.

It is not the only issue. But if it was more explicit about what "authorized" meant, they would not be trying their current angle of attack. That doesn't mean that they could not come up with a different fig-leaf, but every angle of attack you close of make that more difficult (and therefore less likely to be tried, or to succeed if attempted).

 

[robconley]

“A non-exclusive copyright license (such as most FOSS licenses) can be revoked at any time only if there was no consideration involved. The United States Federal Circuit Court of Appeal took this on in Jacobsen v. Katzer in 2008 and ruled that there is consideration exchanged in the use of FOSS by a licensee. This indicates that an FOSS license that's silent on revocation is likely revocable only for violation of it's conditions”

We have those crazy folks in the model railroading hobby to thank for this. And it was a ruling on the more vaguely defined Artistic License.

 

[Maxperson]

that sound intresting... could you give an example? What could they lose (other then the OGL becoming permanent non revocable)?

As an example, they could win Beholder, but lose Mind Flayer and Aboleth because those things also resemble Lovecraft monsters.

 

[jgbrowning]

New information from WotC: A Working Conversation About the Open Game License (OGL)

"Your OGL 1.0a content. Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a."

Again, this statement can only be true if the right to use and republish currently-published 1.0a material remains as it has been for 23 years. Any thing other than that definitely impacts the content "you" have published.

joe b.

 

[Vaalingrade]

Still not saying they won't revoke the OGL 1.0a for future use. Yeah, they can still suck it.

At least they put a human name to this one. Poor sacrificial lamb.

 

[jgbrowning]

Lawyerly question: If WotC is effectively trying to put an expiration date on the OGL 1.0a license (ie everything published before X date will continue to be publishable under that license but anything after X date cannot use the terms of that license to reuse, republish, or redistribute new material based upon the old material published before X even though WotC is saying that those works are not copyright infringing based upon the use of that license) how does such an idea interact with the idea of "Perpetual" in regards to the works that are considered non-infringing in WotC's eyes?

Does putting such an expiration date on a perpetual license (by creating works that are OK prior to X date and not OK after X date) create an additional conflict? (ie, does a "partial revocation" like this create additional problems?)

Dunno if that's a decent question or a silly one. Hrm.

joe b.

 

[Snarf Zagyg]

I think this is somewhere in the mess that was SCO vs IBM

EDIT: this also seems relevant

"See Carson v. Dynegy, Inc., 344 F.3d 446, 452 (5th Cir. 2003) (“Assuming, arguendo, that a nonexclusive license was created, whether such a license was irrevocable rests solely with whether [the plaintiff] received consideration.”). See also I.A.E., Inc. v. Shaver, 74 F.3d 768, 775–76 (7th Cir. 1996) (discussing the existence of explicit and implied non-exclusive non-contractual licenses)."

“A non-exclusive copyright license (such as most FOSS licenses) can be revoked at any time only if there was no consideration involved. The United States Federal Circuit Court of Appeal took this on in Jacobsen v. Katzer in 2008 and ruled that there is consideration exchanged in the use of FOSS by a licensee. This indicates that an FOSS license that's silent on revocation is likely revocable only for violation of it's conditions”

To be clear, since you keep citing to this case (Jacobsen v. Katzer), simply stands for the rather banal point that consideration does not have to be pecuniary (the "mere peppercorn" can include, inter alia, a change in legal rights).

I would recommend looking at the other case you cited- Carson. Note that in Carson, the appellate court is overturning the district court's determination that there was consideration, and did this by looking at state law, to find that "any license ostensibly granted to Dynergy was revocable by Carson." Carson, 344 F.3d at 452.

Again, I am just pointing this out because we are seeing a lot of certainty creeping in. "Look, ma, everything is okay because one time at Band Camp, someone beat back a completely different claim!" If life was so certain, then litigation would be a lot easier. It certainly looks like Hasbro is attempting to end the use of the old open license going forward, as opposed to going after past use, which is also a somewhat salient point (and interesting).

 

[masdog]

It certainly looks like Hasbro is attempting to end the use of the old open license going forward, as opposed to going after past use, which is also a somewhat salient point (and interesting).

Has anyone ever tried that before? And by that, I mean creating an open source license, getting people to adopt it, and the forcibly trying to stop them from using it going forward? I feel like this is breaking new ground in some ways...

If life was so certain, then litigation would be a lot easier.

In this case, it feels like things would have to go to litigation to get any solid answers. But from what I've read in this thread, that could end up being an even riskier proposition where a win could be very narrow and still cost all of the litigants more than just the financial costs of the suit...

 

[S'mon]

It certainly looks like Hasbro is attempting to end the use of the old open license going forward, as opposed to going after past use, which is also a somewhat salient point (and interesting).

I kind of think that's an even weaker claim by them, since the licenses they granted include the right & duty to re-license all OGC on the same terms. If the old OGL 1.0a licences are valid, then that term is valid, too!

Edit: They're not claiming to revoke a perpetual licence. They're claiming to alter the terms of the licence post acceptance. That seems an obvious no-no.

 

[Snarf Zagyg]

Has anyone ever tried that before? And by that, I mean creating an open source license, getting people to adopt it, and the forcibly trying to stop them from using it going forward? I feel like this is breaking new ground in some ways...

Well, that's a great question. And here's a few background things to be aware of-

1. Open licenses ... they are new. Relative to contract law and the law in general, they are barely a blip.
2. Open licenses are primarily used in the software industry; not entirely, but primarily.
3. There isn't a lot of caselaw specifically dealing with the issue, and most of it is rather muddled by other issues and by appellate judges who aren't tremendously well-versed on the issue. So you have only a limited number of cases, that usually touch on the issue in passing, and often touch on it poorly.

Which is to say ... not really, no.

In this case, it feels like things would have to go to litigation to get any solid answers. But from what I've read in this thread, that could end up being an even riskier proposition where a win could be very narrow and still cost all of the litigants more than just the financial costs of the suit...

I have another thread I did today about why litigation in America is so expensive. But even if this goes to litigation, there still might not be solid answers.