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

[FrogReaver]

I'm looking at the Creative Commons licence for the 5e SRD. Here are what seem to be its main features:

* Acceptance of the licence is very similar to the OGL v 1.0/1.0a - rather than referring to "use" of OGC, you take up the licence by "exercising the Licensed Rights under this Public License": section 1.k

* The permissions that are granted seem pretty similar to the OGL v 1.0/1.0a - they include reproducing the licensed work, and permission to "provide [the] material to the public by any means or process that requires permission under the Licensed Rights, such as reproduction, public display, public performance, distribution, dissemination, communication, or importation, and to make material available to the public" including performances, broadcasts and performances. They also include permission to produce Adapted Material, which is material in which the licensed work "is translated, altered, arranged, transformed, or otherwise modified".

* The licence doesn't extend to trademarks: section 2.b.2. Thus, while the licensed SRD contains terms like umber hulk, beholder and mind flayer, WotC has not given up whatever trademark rights it may have in respect of them. But there is no notion analogous to the contractual notion of Product Identity under the OGL v 1.0.1.0a. WotC has requested a particular mode of attribution which precludes compatibility statements of the sort that the OGL v 1.0/1.0a also precludes, and the attribution provision (section 3.a.1.A.i) makes this part of the licence terms.

* The licence isn't viral, as best I can tell. A licensed party who produces adapted material has to ensure that, however they license their work, they ensure recipients are able to meet the requirements of the licence in respect of WotC's work (section 3.a.4). But they are not obliged to license their own work, on the CC terms or any other.

* WotC's offer of the licence is gratuitous, like the OGL, and so WotC can withdraw it, as the CC FAQ explicitly notes ("As a licensor, you may stop distributing under the CC license at any time"). However, licences once granted last for the duration of the copyright in the work, and furthermore, as the FAQ also notes "anyone who has access to a copy of the material may continue to redistribute it under the CC license terms." This is because of section 2.a.5.A, which provides that "Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License."

* The licence expressly states that there is no sub-licensing (2.a.1), and so I'm curious about the best legal analysis of the automatic offer - this may differ across jurisdictions, and my thinking is very firmly within the common law framework. One possibility is that WotC has contractually bound itself to make such offers as part of the licence terms; that seems a bit counterintuitive to me, however, as I can't see how there is a sufficient state of mind to actually constitute an offer. Another possibility is that the licensee is conferred a circumscribed agency (and because it would lack any discretion, it may not attract fiduciary obligations) permitting and requiring them to make an offer, to the one who receives the material, with every distribution of the material. @S'mon, can you help out here? What if anything have I missed or misunderstood?

Since I made such a big todo about clearness, this in itself reads very clear to me!

 

[FrogReaver]

* WotC's offer of the licence is gratuitous, like the OGL, and so WotC can withdraw it, as the CC FAQ explicitly notes ("As a licensor, you may stop distributing under the CC license at any time"). However, licences once granted last for the duration of the copyright in the work, and furthermore, as the FAQ also notes "anyone who has access to a copy of the material may continue to redistribute it under the CC license terms." This is because of section 2.a.5.A, which provides that "Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License."

* The licence expressly states that there is no sub-licensing (2.a.1), and so I'm curious about the best legal analysis of the automatic offer - this may differ across jurisdictions, and my thinking is very firmly within the common law framework. One possibility is that WotC has contractually bound itself to make such offers as part of the licence terms; that seems a bit counterintuitive to me, however, as I can't see how there is a sufficient state of mind to actually constitute an offer. Another possibility is that the licensee is conferred a circumscribed agency (and because it would lack any discretion, it may not attract fiduciary obligations) permitting and requiring them to make an offer, to the one who receives the material, with every distribution of the material. @S'mon, can you help out here? What if anything have I missed or misunderstood?

In our specific case it reads to me that WOTC and a user of the CC-BY-4.0 agree in the license agreement that future recipients of that material will be offered by WOTC the same contract. (as you summarized it - contractually bound).

'Lease with option to buy' comes to my mind as a potential example of a contract where the property owner makes an offer in the contract that they will in the future sell the leased property to you. I don't think anyone would argue about 'state of mind' in the lease with option to buy example? Maybe another analogy is better?

 

[pemerton]

So is this the right way to understand these provisions?

• WotC can stop distributing the CC license, i.e., they can remove the current PDF from their websites, but if you've got a copy of the PDF with the CC provisions, you can keep using it.
• The above rule only stops if SRD 5.1's copyright ends, but I'm guessing it becomes public domain then in any case, right?

I would guess the answer to your second question is "yes", but a proper IP person should be able to give you a more confident answer.

With your first question, not only can you keep using it (as you have accepted the licence, which lasts for as long as the copyright) but you can pass it on to others, who upon receipt can accept an offer from WotC to enter into the licence, thereby getting all the same permissions that you enjoy as licensee.

This is the functional analogue, in CC, of the sub-licensing found in the OGL. You'll have seen that in my post that you quoted I had a go at making sense of it in legal terms, but am not certain of the best analysis. It's clear that the CC is indended to make the power of existing licensees to make those offers independent of any decision by the licensor not to make offers directly itself - ie that power of making automatic offers is intended to survive even if WotC removes the current PDF, repudiates the idea of offering under CC, etc.

 

[pemerton]

In our specific case it reads to me that WOTC and a user of the CC-BY-4.0 agree in the license agreement that future recipients of that material will be offered by WOTC the same contract. (as you summarized it - contractually bound).

'Lease with option to buy' comes to my mind as a potential example of a contract where the property owner makes an offer in the contract that they will in the future sell the leased property to you. I don't think anyone would argue about 'state of mind' in the lease with option to buy example? Maybe another analogy is better?

In the case of an option, there is normally a contract between A and B (a lease or licence or whatever) with one term of the contract being an offer to sell that is not revocable at will. But there is an actual mental state that constitutes that offer, namely, the contracting party entering into the option agreement with the other party.

In the case of the CC licence, the automatic offer is intended to arise with each event of receipt by a new party. I struggle to see an actual offer there from the original licensee, who is not participating at all in that event. Whereas I can see agency - the licensee who distributes is participating in the event and hence is readily capable of making the offer as an agent of the licensor.

But as I've indicated, I am not confident of this analysis. Agency brings additional baggage (eg in the typical case, fiduciary obligations) which may not be apt in this context. Hence why I was keen on @S'mon's help - but I appreciate that marking comes first!

 

[Aspirinsmurf]

With your first question, not only can you keep using it (as you have accepted the licence, which lasts for as long as the copyright) but you can pass it on to others, who upon receipt can accept an offer from WotC to enter into the licence, thereby getting all the same permissions that you enjoy as licensee.

This is the functional analogue, in CC, of the sub-licensing found in the OGL. You'll have seen that in my post that you quoted I had a go at making sense of it in legal terms, but am not certain of the best analysis. It's clear that the CC is indended to make the power of existing licensees to make those offers independent of any decision by the licensor not to make offers directly itself - ie that power of making automatic offers is intended to survive even if WotC removes the current PDF, repudiates the idea of offering under CC, etc.

This was how the OGL was intended to operate as well. Now, WotC have managed to cast doubts on the legal soundness of that. It wasn't a great a move.

But we've had an interesting discussion here as a result. Thank you for your patient explanation and analyses.

 

[pemerton]

This was how the OGL was intended to operate as well. Now, WotC have managed to cast doubts on the legal soundness of that. It wasn't a great a move.

As you know, I think the best view is that the OGL does work like that.

I actually find it clearer, in legal terms, than the CC licence because I find the "automatic offer that is not a sub-licence" a bit tricky to fit into a legal framework. I suspect that, at least in part, this may be a reflection of the intended jurisdiction-neutral functioning of the licence. As you can see, I am grasping at agency as one way of fleshing it out using the legal devices at my disposal.

 

[pemerton]

To echo Hussar and S'mon, this thread has been by far the most informative thing I've read on a message board in a long, long time.

Speaking particularly from my perspective as a formalist Australian, one thing I hope it has shown is that legal reasoning and argument are not just about who can spin the best line of b******t, but are a genuine field of technical knowledge and analysis.

 

[rpd9803]

* The licence isn't viral, as best I can tell. A licensed party who produces adapted material has to ensure that, however they license their work, they ensure recipients are able to meet the requirements of the licence in respect of WotC's work (section 3.a.4). But they are not obliged to license their own work, on the CC terms or any other.

For viral versions of CC licenses, they will have the ShareAlike (SA) license set. So, Cc-BY-SA, CC-BY-NC-SA, etc. those (attempt) to require all derivatives to be licensed under the same (or compatible) terms. I’m not sure how they legally define compatible or any of that.

 

[Aspirinsmurf]

For viral versions of CC licenses, they will have the ShareAlike (SA) license set. So, Cc-BY-SA, CC-BY-NC-SA, etc. those (attempt) to require all derivatives to be licensed under the same (or compatible) terms. I’m not sure how they legally define compatible or any of that.

Welcome to the absolute hellscape that is license compatibility analysis and linking exceptions, I guess.

 

[FrogReaver]

In the case of an option, there is normally a contract between A and B (a lease or licence or whatever) with one term of the contract being an offer to sell that is not revocable at will. But there is an actual mental state that constitutes that offer, namely, the contracting party entering into the option agreement with the other party.

It seems to me there is an actual mental state here as well is between A and B. The mental state is just in respect to the first licensee (let's call him B), who presumably wouldn't have agreed to the contract if WOTC (let's call them A) wouldn't have agreed to make the same offer to everyone else (let's call them C).

Is your opinion that mental state that constitutes an offer cannot occur in that fashion?

In the case of the CC licence, the automatic offer is intended to arise with each event of receipt by a new party. I struggle to see an actual offer there from the original licensee, who is not participating at all in that event. Whereas I can see agency - the licensee who distributes is participating in the event and hence is readily capable of making the offer as an agent of the licensor.

I understand going to agency to resolve, but the license doesn't read like it's making anyone an agent so for me it doesn't seem like a strong theory.

But as I've indicated, I am not confident of this analysis. Agency brings additional baggage (eg in the typical case, fiduciary obligations) which may not be apt in this context. Hence why I was keen on @S'mon's help - but I appreciate that marking comes first!