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

[Greg Benage]

Clark Peterson, was literally the first publisher to use the OGL. And he was instrumental in the ogf-l discussions.

Yeah, criminal lawyer. I don't know if they consulted a commercial firm. I kind of assume someone must have. In any case, I can say with near certainty that everyone's understanding of the license at the time (including representatives at Wizards of the Coast) was not that the offer could be withdrawn at any time as a basic principle of contract law. I think Ryan's commentary during this fiasco backs that up pretty conclusively.

 

[Nylanfs]

Hey, you didn't specify type of lawyer. But the whole ogf-l mailing list was loaded with publishers, lawyers, generally license interested people (like myself).

 

[pemerton]

Yeah, criminal lawyer. I don't know if they consulted a commercial firm. I kind of assume someone must have. In any case, I can say with near certainty that everyone's understanding of the license at the time (including representatives at Wizards of the Coast) was not that the offer could be withdrawn at any time as a basic principle of contract law. I think Ryan's commentary during this fiasco backs that up pretty conclusively.

I can't comment on Dancey. I know that throughout the lifetime of the OGL there has been a lot of discussion that has not taken seriously its status as the terms of a contractual offer/contractual agreement. I did a quick search of my own posts (keyword: OSRIC; user: pemerton) and saw the first thread I took part in, where this issues manifested, was in 2008 about the GSL.

I think, to the extent that the offer issue was considered, it was assumed - and perhaps correctly (see eg @S'mon's views on this) - that an enduring power to sub-license would make the withdrawal of WotC's offer irrelevant.

 

[mamba]

Am I correct that if Wizards can always withdraw their offer w/r/t to Licensed Content under OGL 1.2, that means they can always say "no new material," regardless of the terms of the license?

in the current form, yes

 

[mamba]

Yeah. When Wizards says, "...irrevocable (meaning that content licensed under this license can never be withdrawn from the license)," does that mean that the offer is irrevocable? I hope that's what it means...but I'm not sure.

no, the offer is still very much revocable

 

[mamba]

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

supposedly by making it fully irrevocable, at least some layer used that term


"WotC needs to address the remaining issues above (especially inserting full irrevocability and express “royalty free” language into Section 2)"

 

[mamba]

It's not in dispute that WotC can revoke their licence to offer at any time.

My question is can we prevent this for 1.2, because I see no reason to even bother if we cannot

 

[pemerton]

supposedly by making it fully irrevocable, at least some layer used that term


"WotC needs to address the remaining issues above (especially inserting full irrevocability and express “royalty free” language into Section 2)"

They are not talking about the offer. They are talking about the terms of the licence for someone who becomes a party to the contract.

My question is can we prevent this for 1.2, because I see no reason to even bother if we cannot

I think that, before anyone starts deciding whether or not to bother, it's worth asking what legal result are you trying to achieve?

For instance, a licence agreement which, once entered into, (i) granted a licensee permission to use all of the content in the licensed work (not just the content that the licensee uses in the course of becoming a party), and (ii) made it clear that the permission to use included a permission to sub-license even if the offer to enter into new licences is withdrawn, would seem to do what everyone wants.

 

[Thomas Shey]

For instance, a licence agreement which, once entered into, (i) granted a licensee permission to use all of the content in the licensed work (not just the content that the licensee uses in the course of becoming a party), and (ii) made it clear that the permission to use included a permission to sub-license even if the offer to enter into new licences is withdrawn, would seem to do what everyone wants.

I maintain that as long as the morals clause is still present, it doesn't matter what else the contract says; they still have an ability to pull the plug at any time, and their reasoning is a black box that cannot be addressed. As someone else said, walking into that beartrap is a fool's choice.

 

[Enrahim2]

I think, to the extent that the offer issue was considered, it was assumed - and perhaps correctly (see eg @S'mon's views on this) - that an enduring power to sub-license would make the withdrawal of WotC's offer irrelevant.

Assuming well established open source schemes do not have this withdrawal of offer issue - what mechanism do they have to prevent that? Is it reliance on this assumption, or might there be something else, like formulation in a way that do not place it into the domain of contract law? If it indeed is this mechanism, it seem like a reasonable assumption that this would hold, given the stated intention of the project. If there however is a (conscious) departure from the state of art with regard to mechanisms for ensuring permanent availability, I agree this would be a very risky assumption.