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

[Aspirinsmurf]

I'm not going to accept new terms, nor do I want to go into business with Hasbro/Wizards going forward. The OGL 1.3 is of no interest to me. I'm asking about the OGL 1.0a.

See this thread for reasons:

 

[Greg Benage]

To me it seems to mean that the licence that a party receives from WotC upon entering into the agreement with WotC is irrevocable. How could the offer be irrevocable? What obliges WotC to keep it on foot?

So is there any way to make an offer in this kind of license irrevocable? I feel like a lot of us have been asking for a kind or irrevocability that really isn't possible in contract law. And I understand there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.

 

[Aspirinsmurf]

So is there any way to make an offer in this kind of license irrevocable? I feel like a lot of us have been asking for a kind or irrevocability that really isn't possible in contract law. And I understand there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.

Yeah. Is the argument here that there is a fatal flaw in this particular license text (or the circumstances)? Or does this line of reasoning suggest that there is a problem with the very notion of a copyleft license to begin with?

Copyleft - Wikipedia

en.wikipedia.org

 

[clearstream]

So is there any way to make an offer in this kind of license irrevocable? I feel like a lot of us have been asking for a kind or irrevocability that really isn't possible in contract law. And I understand there is always risk in business, but I don't see how a publisher could build a business on an offer that can be withdrawn at any time--at least, not a business based on a line of products.

If one can safely create new works using OGC licensed and sub-licensed under the aegis of the OGL1.0, then doesn't the virality of that original structure largely accomplish it?

 

[Greg Benage]

If one can safely create new works using OGC licensed and sub-licensed under the aegis of the OGL1.0, then doesn't the virality of that original structure largely accomplish it?

@pemerton has an argument that it wouldn't, based purely on a textual analysis of 1.0a, though he characterizes it as "not particularly strong, but not absurd either." To a nonlawyer like myself, it certainly would explain the lack of any provision for sublicensing in 1.2.

 

[Aspirinsmurf]

If one can safely create new works using OGC licensed and sub-licensed under the aegis of the OGL1.0, then doesn't the virality of that original structure largely accomplish it?

@pemerton argues that the license text could be interpreted to somehow support a theory that the owner of the copyright to the top dependency can revoke their offer to license that text at-will and thus poison the entire ecosystem from the root.

 

[Greg Benage]

Yeah. Is the argument here that there is a fatal flaw in this particular license text (or the circumstances)? Or does this line of reasoning suggest that there is a problem with the very notion of a copyleft license to begin with?

Copyleft - Wikipedia

en.wikipedia.org

In the 1.2 legal thread, @pemerton writes:

There is no straightforward way for a private party to bind themselves in respect of a gratuitous offer made to all the world. That's the nature of the common law of contract.

As with every legal principle there are nuances etc. I don't immediately see any nuance here.

Which seems to answer my question. And what a banger. It makes me wonder if any publisher actually consulted a lawyer before publishing under this license! I know FFG didn't, but we only published OGL stuff during the bubble period. It was more of a "make hay while the sun shines" approach.

Maybe Paizo did and they knew this and always had a contingency plan in place. And maybe there are nuances, as @permerton says, in the open software copyleft licenses. But man, it makes ya think.

 

[Aspirinsmurf]

This has some unfortunate consequences for a lot of open source-software, some of which is responsible for running a lot of critical infrastructure (unlike the SRDs in the OGL, which are "merely" cultural products). I don't think the reasoning is very sound if this is a consequence of it.

 

[Snarf Zagyg]

Which seems to answer my question. And what a banger. It makes me wonder if any publisher actually consulted a lawyer before publishing under this license! I know FFG didn't, but we only published OGL stuff during the bubble period. It was more of a "make hay while the sun shines" approach.

Maybe Paizo did and they knew this and always had a contingency plan in place. And maybe there are nuances, as @permerton says, in the open software copyleft licenses. But man, it makes ya think.

That's not quite true. It's black-letter law in most jurisdictions (at least in terms on Contract 101) that you bind yourself and the offeror to a unilateral contract offer by fulfilling the requirements of the contract.

Ex.
"I'll pay $50,000.00 to the person who proves the Earth is flat by sailing off the edge."

The person who sails off the edge (completes the task) has bound themselves, and the offeror, to the terms. I think what was being said is that until the requirement is fulfilled, the "gratuitous offer" (unilateral contract) is not binding on an offeree, so even if someone is setting sail, they aren't bound.

 

[Greg Benage]

I think what was being said is that until the requirement is fulfilled, the "gratuitous offer" (unilateral contract) is not binding on an offeree, so even if someone is setting sail, they aren't bound.

I appreciate the clarification, but could you apply what you're saying to the actual case, rather than using a hypothetical? That's not meant as a criticism--I simply can't follow it.

Are you saying that Wizards can withdraw the offer at any time, but as soon as a publisher has published something under the terms of the license, then Wizards is bound to the offer for all time w/r/t that publisher? So once I publish something under 1.2, then I'll be able to publish new material under 1.2 forever?