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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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<blockquote data-quote="bmcdaniel" data-source="post: 8891046" data-attributes="member: 1772"><p>I note that you indicated you would say that "OGL 1.0" or "1.0" you are also referring to "1.0(a)." However, then you then proceeded to discuss "OGL" which you have not defined. I can typically tell what you mean from context, but accuracy is important here.</p><p></p><p></p><p>Nobody can tell you the answer to this question. Indeed, as asked, this is not a well-formulated question. The best that we can tell you is:</p><p></p><p>(a) How courts are "supposed" to respond if WOTC brought a claim against an OGL 1.0(a) counterparty, or a counterparty raised a defense against a WOTC claim after WOTC purported to revoke OGL 1.0(a). The answer to this question is that a court is supposed to look at the text of OGL 1.0(a) to determine the intention of the parties (taking into account the legal fiction that a corporation like WOTC can have an intention). If the court finds the text of OGL 1.0(a) to be ambiguous, it may then proceed to examine evidence outside the text of OGL 1.0(a) to determine the intention of the parties. </p><p></p><p>(b) A guess about how a court would rule if it follows the process above (i.e. how a court is supposed to rule); plus a guess about how a court would rule taking into account other known facts. Among those persons that have posted credible analysis, my own view is that the guesses range from "WOTC likely to lose" to "WOTC almost certain to lose." However, you can form your own view about who is credible or not.</p><p></p><p>(Side note: among the community of lawyers, we refer to a class of rules "like laches" as equitable principles, in contract to the class of legal rules. The reasons they are distinguished are historical arising out of the original organization of the English judiciary, some of whom exercised "equitable" jurisdiction and some of which exercised "legal" jurisdiction. So, if you ask (US) lawyers about "legal doctrines like laches" you are likely to create misunderstanding.)</p><p></p><p>This question is even more unanswerable than your first question. Equitable principles, like laches, but also promissory estoppel, detrimental reliance, quantum meruit, etc. look very closely at the behavior of the parties in front of the court and whether a party has behaved equitably (which is sort of like behaving well, but not exactly). In other words, equitable rules are specifically designed to allow judges to not act in a "rule-like" manner, but instead to do justice. Precisely because equitable principles are less "rule-like" (although neither are they completely discretionary!) it is harder to guess how and whether a court will apply equitable principles, especially without specifying exactly who the parties are, how they have behaved, etc. Having said that, credible persons have pointed out many WOTC behaviours that WOTC has engaged in that could prevent WOTC from making a successful claim under OGL 1.0(a) and/or allow a defendant to raise a defense against a WOTC claim.</p><p></p><p></p><p></p><p></p><p></p><p>The meaning of "authorization" in OGL 1.0(a), in the context of a specific case, would be determined by a court interpreting the intention of the parties in the manner described above. Various people have suggested different meanings, based on the text of OGL 1.0(a), outside evidence, or god-knows-what. Among the various meanings suggested are (1) an "authorized" license as opposed to a "draft" licensed; (2) a license that is promulgated by WOTC (including an updated license) as opposed to an updated license promulgated by others; (3) any license that WOTC ever said was authorized; or (4) any license that WOTC says is authorized right now (i.e. WOTC can unilaterally de-authorize the license at any time).</p><p></p><p>Because the act of interpretation is indeterminate, and because the evidence which is available to one court may be different than the evidence available to another court, there is no sense in which there can be a definitive determination of the meaning of the word "authorized." For example, suppose a court relies heavily on a contemporaneous public statement by Ryan Dancey that "authorization" has meaning #1 when adjudicating a claim between WOTC and Monte Cook Press. But, years later, a different court is adjudicating a claim between WOTC and Paizo, and new evidence is uncovered that both WOTC and Paizo interpreted "authorization" to have meaning #4. The second court is not bound by the first court's interpretation, and the second court could very well reach a different conclusion as to the meaning of the word "authorization."</p><p></p><p>My own view is that, based on the structure and text of OGL 1.0(a), a claim based on meaning #4 is very likely to fail. My own view is that it is likely that no other definitive legal interpretation of the word "authorization" will occur, because (unless meaning #4 is correct), whether the other meanings are correct is irrelevant. This is the difference between historians and lawyers/courts: historians are often interested in historical facts; lawyers and courts are only interested in facts that have effects outside the facts themselves.</p><p></p><p></p><p>Its not clear to me how this question is supposed to be different than the question you asked above "Can Hasbro/WotC revoke the OGL at will?" except that you used different terms to express the same concept. I would refer you to the answer above. </p><p></p><p>See the answer above. </p><p></p><p>See the answer above. </p><p></p><p>The answer is not clear. This is one reason to interpret OGL 1.0(a) as not allowing authorization, although in my opinion only a weak reason. </p><p></p><p>Section 13 describes a termination for failure to comply with the terms of OGL 1.0(a). The premise of your hypothetical ("If 1.0 can be deauthorized at will") asserts that de-authorization of the license is permitted by the terms of OGL 1.0(a). If de-authorization of the license is permitted by the terms of OGL 1.0(a), it cannot be a failure to comply with the terms of OGL 1.0(a).</p><p></p><p></p><p></p><p>This is a good question, but not one that I'm particularly expert at answering. I will say that the intersection of copyright and antitrust is a particularly complex and uncertain area of law because (one of the) goal(s) of antitrust law is the prevention of monopolies, and the anti-consumer effects that flow from monopolies; while copyright is a government-authorized monopoly that is designed to benefit the copyright-holder, even at the expense of consumers (in order to encourage the production of copyrightable materials). </p><p></p><p></p><p>OGL 1.0(a) generally does not prohibit any licensing activity from a party to OGL 1.0(a). In particular, OGL 1.0(a) does not prohibit the copyright-holder of material that is offered as Open Game Content under OGL 1.0(a) from simultaneously offering that material under a different license. </p><p></p><p>The second part of your question seems self-evidently true. If a licensee has a right to sub-license material under OGL 1.0(a) and a different license, the licensee can choose whether to sub-license the material under OGL 1.0(a) or the different license (subject, of course, to the terms of the different license as well as any other obligations that the licensee may be subject to). </p><p></p><p>I get the sense that I'm not answering the question you are asking, but to be perfectly honest, I'm not sure what you are asking.</p><p></p><p></p><p></p><p>It would bind the parties to OGL 1.1. Generally, an employer and an employee are not considered the same employee. For example, if Microsoft agrees to pay $1 million to its landlord, its employees are not bound by Microsoft's agreement and are not required to pay. In certain special situations (typically involving closely-held entities), an employer and an employee may be merged. </p><p></p><p>As above, OGL 1.1, like all agreements cannot bind non-parties to OGL 1.1. However, do be aware that it may be possible to inadvertently become a party to OGL 1.1. I have explored this thoroughly elsewhere, so won't repeat the analysis here.</p><p></p><p>As above, the OGL 1.1 is not binding on non-parties. However, it is possible that if an employer is a party to OGL 1.1, OGL 1.1 could impose an obligation on the employer not to employ persons who are parties to OGL 1.0(a). I highly doubt it, but until we have final text on OGL 1.1 it is impossible to rule out. Furthermore, an employer that is a party to OGL 1.1 could elect not to employ persons who utilize OGL 1.0(a) out of a sense of loyalty to WOTC or risk mitigation.</p><p>-------------</p><p>In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.</p></blockquote><p></p>
[QUOTE="bmcdaniel, post: 8891046, member: 1772"] I note that you indicated you would say that "OGL 1.0" or "1.0" you are also referring to "1.0(a)." However, then you then proceeded to discuss "OGL" which you have not defined. I can typically tell what you mean from context, but accuracy is important here. Nobody can tell you the answer to this question. Indeed, as asked, this is not a well-formulated question. The best that we can tell you is: (a) How courts are "supposed" to respond if WOTC brought a claim against an OGL 1.0(a) counterparty, or a counterparty raised a defense against a WOTC claim after WOTC purported to revoke OGL 1.0(a). The answer to this question is that a court is supposed to look at the text of OGL 1.0(a) to determine the intention of the parties (taking into account the legal fiction that a corporation like WOTC can have an intention). If the court finds the text of OGL 1.0(a) to be ambiguous, it may then proceed to examine evidence outside the text of OGL 1.0(a) to determine the intention of the parties. (b) A guess about how a court would rule if it follows the process above (i.e. how a court is supposed to rule); plus a guess about how a court would rule taking into account other known facts. Among those persons that have posted credible analysis, my own view is that the guesses range from "WOTC likely to lose" to "WOTC almost certain to lose." However, you can form your own view about who is credible or not. (Side note: among the community of lawyers, we refer to a class of rules "like laches" as equitable principles, in contract to the class of legal rules. The reasons they are distinguished are historical arising out of the original organization of the English judiciary, some of whom exercised "equitable" jurisdiction and some of which exercised "legal" jurisdiction. So, if you ask (US) lawyers about "legal doctrines like laches" you are likely to create misunderstanding.) This question is even more unanswerable than your first question. Equitable principles, like laches, but also promissory estoppel, detrimental reliance, quantum meruit, etc. look very closely at the behavior of the parties in front of the court and whether a party has behaved equitably (which is sort of like behaving well, but not exactly). In other words, equitable rules are specifically designed to allow judges to not act in a "rule-like" manner, but instead to do justice. Precisely because equitable principles are less "rule-like" (although neither are they completely discretionary!) it is harder to guess how and whether a court will apply equitable principles, especially without specifying exactly who the parties are, how they have behaved, etc. Having said that, credible persons have pointed out many WOTC behaviours that WOTC has engaged in that could prevent WOTC from making a successful claim under OGL 1.0(a) and/or allow a defendant to raise a defense against a WOTC claim. The meaning of "authorization" in OGL 1.0(a), in the context of a specific case, would be determined by a court interpreting the intention of the parties in the manner described above. Various people have suggested different meanings, based on the text of OGL 1.0(a), outside evidence, or god-knows-what. Among the various meanings suggested are (1) an "authorized" license as opposed to a "draft" licensed; (2) a license that is promulgated by WOTC (including an updated license) as opposed to an updated license promulgated by others; (3) any license that WOTC ever said was authorized; or (4) any license that WOTC says is authorized right now (i.e. WOTC can unilaterally de-authorize the license at any time). Because the act of interpretation is indeterminate, and because the evidence which is available to one court may be different than the evidence available to another court, there is no sense in which there can be a definitive determination of the meaning of the word "authorized." For example, suppose a court relies heavily on a contemporaneous public statement by Ryan Dancey that "authorization" has meaning #1 when adjudicating a claim between WOTC and Monte Cook Press. But, years later, a different court is adjudicating a claim between WOTC and Paizo, and new evidence is uncovered that both WOTC and Paizo interpreted "authorization" to have meaning #4. The second court is not bound by the first court's interpretation, and the second court could very well reach a different conclusion as to the meaning of the word "authorization." My own view is that, based on the structure and text of OGL 1.0(a), a claim based on meaning #4 is very likely to fail. My own view is that it is likely that no other definitive legal interpretation of the word "authorization" will occur, because (unless meaning #4 is correct), whether the other meanings are correct is irrelevant. This is the difference between historians and lawyers/courts: historians are often interested in historical facts; lawyers and courts are only interested in facts that have effects outside the facts themselves. Its not clear to me how this question is supposed to be different than the question you asked above "Can Hasbro/WotC revoke the OGL at will?" except that you used different terms to express the same concept. I would refer you to the answer above. See the answer above. See the answer above. The answer is not clear. This is one reason to interpret OGL 1.0(a) as not allowing authorization, although in my opinion only a weak reason. Section 13 describes a termination for failure to comply with the terms of OGL 1.0(a). The premise of your hypothetical ("If 1.0 can be deauthorized at will") asserts that de-authorization of the license is permitted by the terms of OGL 1.0(a). If de-authorization of the license is permitted by the terms of OGL 1.0(a), it cannot be a failure to comply with the terms of OGL 1.0(a). This is a good question, but not one that I'm particularly expert at answering. I will say that the intersection of copyright and antitrust is a particularly complex and uncertain area of law because (one of the) goal(s) of antitrust law is the prevention of monopolies, and the anti-consumer effects that flow from monopolies; while copyright is a government-authorized monopoly that is designed to benefit the copyright-holder, even at the expense of consumers (in order to encourage the production of copyrightable materials). OGL 1.0(a) generally does not prohibit any licensing activity from a party to OGL 1.0(a). In particular, OGL 1.0(a) does not prohibit the copyright-holder of material that is offered as Open Game Content under OGL 1.0(a) from simultaneously offering that material under a different license. The second part of your question seems self-evidently true. If a licensee has a right to sub-license material under OGL 1.0(a) and a different license, the licensee can choose whether to sub-license the material under OGL 1.0(a) or the different license (subject, of course, to the terms of the different license as well as any other obligations that the licensee may be subject to). I get the sense that I'm not answering the question you are asking, but to be perfectly honest, I'm not sure what you are asking. It would bind the parties to OGL 1.1. Generally, an employer and an employee are not considered the same employee. For example, if Microsoft agrees to pay $1 million to its landlord, its employees are not bound by Microsoft's agreement and are not required to pay. In certain special situations (typically involving closely-held entities), an employer and an employee may be merged. As above, OGL 1.1, like all agreements cannot bind non-parties to OGL 1.1. However, do be aware that it may be possible to inadvertently become a party to OGL 1.1. I have explored this thoroughly elsewhere, so won't repeat the analysis here. As above, the OGL 1.1 is not binding on non-parties. However, it is possible that if an employer is a party to OGL 1.1, OGL 1.1 could impose an obligation on the employer not to employ persons who are parties to OGL 1.0(a). I highly doubt it, but until we have final text on OGL 1.1 it is impossible to rule out. Furthermore, an employer that is a party to OGL 1.1 could elect not to employ persons who utilize OGL 1.0(a) out of a sense of loyalty to WOTC or risk mitigation. ------------- In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice. [/QUOTE]
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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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