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

[pemerton]

I don't immediately see how this knowledge element prohibits an interpretation of collective licensing. After all the openess of the license by it's very nature mean that at least one part of the legal arangement need to be explicitly aware of the other. In your example A do not to be aware of B.

Yes, because it's a "unilateral" offer: Carlill v Carbolic Smoke Ball Co - Wikipedia

You'll notice that in the example in the post you quoted, I talked about mutual ignorance. You are positing that B and C who have never heard of one another nevertheless end up in a legal relationship with one another. How do you suppose that is happening? Who is initiating it?

It is for instance not obvious to me that A is unable to invoke section 13 on behalf of the contributors if they find D to be in breach of the terms in order to preserve the integrity of the license they rely on.

What do you mean "invoke section 13"? Here is the relevant text of section 13:

This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach.​

Section 13 does not confer a power on anyone other than the licensee in breach, who enjoys a power of cure.

Of course, if I notice that a party to the OGL is in breach then I could write to them and make them aware of the breach. That wouldn't depend on me being a party to the OGL.

I agree that the reading you describe make sense, but there seem to be more principles than what you present that need to be at work to decisively refute the alternative interpretation.

The "interpretation" that you and @FrogReaver are advancing makes no sense to me. It involves non-entities being parties to non-contractual agreements issuing licenses over works that don't exist using powers they haven't been granted.

 

[FrogReaver]

Like most definitions in legal instruments, it has to be read in the context of the agreement. Which OGC is being talked about? To what or whom must that OGC have been contributed? Section 4 answers that question - it is the OGC that is the subject-matter of the grant from the Contributors.

Agreed

In other words, the Contributors are those whose OGC is being licensed.

Agreed

And of course this can only be done by parties having the requisite legal authority, either because they own the relevant IP rights, or they have had that IP owner confer an appropriate power on them - perhaps pursuant to the OGL!

Agreed

You seem to be limiting ‘the OGC’ to mean ‘the OGC’ you ‘use’. The license itself doesn’t make that claim. When you accept the license you accept an offer from all contributors to use all the OGC.

 

[pemerton]

Playing Devil's Advocate, or in this case Devil's Layman. As much as I hate the bad taste it leaves in my mouth to bring this argument:

The initial licensee (one working directly off the SRD) creates a derivative work from the Open Game Content within the SRD. This can be anything from writing a character class based upon the concepts and rules within the SRD to taking the entire SRD and converting it to HTML, Markdown, or other formats.
The resulting work is a derivative work created by the licensee, using the permissions granted by the license to do so, but the copyright for the derivative work only covers the additions or changes to the original work, not the original itself. (derivative work)
It would therefore appear to follow that the licensee only has the right to offer a license to their additions or changes (or rather, to offer their OGC to be combined in the license with other contributors offers.)

This appears to be backed up slightly by


Stating that you need the rights in the first place to contribute material as OGC, an indication that Your Contributions are considered at least here, separate to the OGC within the work as a whole.

Now, taking into account

read in conjunction with

and

At no point does the license mention the right for the licensee to sublicense any of the Used OGC. Instead, it seems to pass on the license offer from "the Contributors". Not making on their behalf, simply passing on the message that the Contributors have made offers - so if one or more are rescinding that offer, it's no longer available to accept.

This leaves the downstream licensee only able to "pass down" the OGC for which a valid offer still remains - that which any remaining Contributors own copyright to - their specific enhancements made in their derivative works - plus of course their own. Or in other words, the offer is made with big holes in it where OGC has been withdrawn.

I'm hoping here that as someone with zero actual legal knowledge, that I've missed something important and am horribly wrong.

If you license X to me, and then I sub-license X to my friend, both my friend and I have licences with the same subject-matter - namely, X. Sub-licensing needn't involve any change in the subject-matter of the licence; the core feature of a sub-license is how it is created - ie by an exercise of legal power by an existing licensee.

The grant of licence under section 4 extends to "Use", which includes (via the definition of "Distribute") "licensing". This is where a licensee gets the power to issue, to downstream licensees, licences in respect of upstream licensors' works.

If the upstream licensor has withdrawn (or purported to withdraw) their offer to license, and they are contractually obliged not to withdraw it, then the first question is can they plead their purported withdrawal, and hence the non-existence of a downstream contract, to try and defeat a downstream licensee's claim to enjoy a contractual licence? My intuition is "no", but I'd be interested in a second opinion.

If the answer is "yes", then they find themself in the same position as an upstream licensor (eg WotC) who is not contractually obliged to keep their offer on foot. Does that withdrawal of the offer affect the power of their licensee to license to parties further downstream? I don't think this depends on the meaning of "Use". It depends on the construction of the subject matter of the section 4 grant.

Ugh, I missed one of the obvious Capitalized Definitions! (Wait, no, that's a good thing, we don't want my argument to be right )

And yes, the argument I've been making myself through all of this is that once I create my Work (even if it's, as you say, a verbatim cut+paste), I'm licencing out that (which I created with permission), and the license is now between me and the next Licensee and cannot be affected by anyone upstream. I did miss the part about "Contributors" in that argument though, so I may have to rethink on where that fits.

You can license "the Open Game Content" - that is the subject matter of the licence you have been granted.

You've probably read my posts upthread and in other threads about that topic, so I won't repeat myself in this post.

 

[pemerton]

You seem to be limiting ‘the OGC’ to mean ‘the OGC’ you ‘use’. The license itself doesn’t make that claim. When you accept the license you accept an offer from all contributors to use all the OGC.

I could, tomorrow, take up WotC still-extant offer to license some OGC to me in terms of the OGL. And I could then publish my work with (say) a new wizard spell. That would make me a "contributor" of OGC to anyone who enters into a licence agreement with me in terms of the OGC.

But you seem to be suggesting that parties accepted an offer from me before I made it. I don't know how you think that works.

As for your suggestion that I am taking "the OGC" to mean "the OGC that you Use", that's not correct. In reply to you I've canvassed multiple interpretations of that phrase: see eg post 2140 in this thread.

 

[tomBitonti]

Yes it does. The OGL makes them a licensee for all OGC by virtue of their distribution of OGC.

Trying to find a spot for this reply.

From this:

Generally, acceptance does not happen in the following instances:
…
The response comes with conditions:
…

As there are conditions - section 2, at least - section 3 would seem to require those conditions in addition to ”Use” (as defined in section 1g) before a license is given (granted?) I presume, legally, this goes without saying, hence the very compact wording of section 3.

TomB

 

[FrogReaver]

Trying to find a spot for this reply.

From this:



As there are conditions - section 2, at least - section 3 would seem to require those conditions in addition to ”Use” (as defined in section 1g) before a license is given (granted?) I presume, legally, this goes without saying, hence the very compact wording of section 3.

TomB

I'm not quite following.

The basic premise that acceptance isn't really acceptance if there is some unfilled condition isn't hard to grasp, but i'm not understanding the relevance here.

 

[FrogReaver]

I could, tomorrow, take up WotC still-extant offer to license some OGC to me in terms of the OGL. And I could then publish my work with (say) a new wizard spell. That would make me a "contributor" of OGC to anyone who enters into a licence agreement with me in terms of the OGC.

Contributors are not defined in relation to you. They are defined as:

1a. Definitions: (a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;​

You will thus be a contributor to anyone who enters into a license agreement to use the OGC.

But you seem to be suggesting that parties accepted an offer from me before I made it. I don't know how you think that works.

They accepted an offer from the contributors. After they accepted you then agreed to be a contributor by publishing your OGC under the OGL. The License itself in section 2 tells them that your material applies - 'This License applies to any Open Game Content that contains a notice....'

I don't know why you think this doesn't work.

As for your suggestion that I am taking "the OGC" to mean "the OGC that you Use", that's not correct. In reply to you I've canvassed multiple interpretations of that phrase: see eg post 2140 in this thread.

You certainly aren't taking it to mean all OGC. So which OGC do you take it to mean?

 

[pemerton]

Trying to find a spot for this reply.

From this:



As there are conditions - section 2, at least - section 3 would seem to require those conditions in addition to ”Use” (as defined in section 1g) before a license is given (granted?) I presume, legally, this goes without saying, hence the very compact wording of section 3.

TomB

The thing you're quoting is talking about conditions specified by the would-be acceptor that differ from the terms of the offer. If I make an offer in terms XYZ, and a party replies saying that they accept but on terms XYQ, then no contract arises as there is no meeting of minds over the terms of the agreement.

The OGL sets out the terms of the offer. There is no provision, within the OGL scheme, for negotiation over the terms.

 

[pemerton]

They accepted an offer from the contributors. After they accepted you then agreed to be a contributor by publishing your OGC under the OGL. The License itself in section 2 tells them that your material applies - 'This License applies to any Open Game Content that contains a notice....'

I don't know why you think this doesn't work.

I don't know what your "this" is. Who accepted what offer from which contributors? When you say that "I agreed to be a contributor", what does that mean in legal terms? Who am I agreeing with? What are you saying is the source of my legal powers and obligations? You're not describing any legal arrangement or process that I can make sense of.

 

[FrogReaver]

I don't know what your "this" is. Who accepted what offer from which contributors? When you say that "I agreed to be a contributor", what does that mean in legal terms? Who am I agreeing with? What are you saying is the source of my legal powers and obligations? You're not describing any legal arrangement or process that I can make sense of.

I’ve answered these same questions 5000 times. It gets old. If you can’t actually respond to my posts with substance please stop asking me the same 5000 questions I’ve already answered.