Just reposting from Heath's Geekverse

[Snarf Zagyg]

I mean, in Snarf's own thread he points out that the morality clause is not standard for this sort of thing. We assume nefarious intent because they've been taking nefarious actions and they add things in that seem to allow them to do what we asked them to change.

So, on that. "Morality clauses" (which is what I have been calling this) are not common in these types of licensing agreements simply because most licensing agreements are easy to terminate for other reasons through a specified procedure, and often have a limited term that can be renewed only upon specified conditions being met. But this isn't most licensing agreements, this is supposedly an open license.

To back up again, the fundamental drafting (and PR) issue appears to be this-
Hasbro wants some control over licensees in terms of the brand.
But that type of control over the derivative works is anathema to most concepts of an open license that allow the propagation of derivative works.

I'm curious to see what they produce with additional time and feedback. I think the next version will tell us a lot about what they are really thinking.

 

[Haplo781]

Gee, it's almost like you are trying to lecture me on something I have never read and never have experienced.

Wait ... oh ... you mean I've actually written entire posts and threads on the subject? On this specific clause even????

This should be interesting.



See, here's the thing. You obviously don't understand what you just read. Here- allow me to show you.

This what you wrote-
If you would like to claim that it is not possible for Wizards, or some future management that holds this, to execute the "declare the entire license void [...] in its entirety",

This is the problem. You're ignoring the actual language that you just quoted. And, of course, the entire history of construing a severanace clause. This is the part that you didn't bold-

If any part of this license is held to be unenforceable or invalid for any reason.

So what does this mean? It means that you just transformed the word "held" to be "held by Wizards," when that is not the actual meaning. The actual meaning of held in that clause is held by a court.

So, yeah, the rest of the my comment stands. I find that this is to be disingenuous, and I find this type of misleading rhetoric to be harmful to actual discussion.

Thanks!

Is there any reason Wizards couldn't go "we hold this license invalid"?

 

[Snarf Zagyg]

Is there any reason Wizards couldn't go "we hold this license invalid"?

Because in general, and but more specifically in severance clauses, "hold" has a meaning. It is when a court holds a provision to be unenforceable or invalid.

So to understand that clause, you realize that it's a multi-part process.

1. First, there has to be a judgment from a Court that holds a provision to be unenforceable or invalid.
2. Then, Wizards can declare the license void, either between it and the particular licensee that obtained the ruling from the Court, or invalid in toto.
3. If Wizards does not elect option 2, then the invalid provision is severed and the remaining license continues to be enforceable.

 

[Haplo781]

Because in general, and but more specifically in severance clauses, "hold" has a meaning. It is when a court holds a provision to be unenforceable or invalid.

So to understand that clause, you realize that it's a multi-part process.

1. First, there has to be a judgment from a Court that holds a provision to be unenforceable or invalid.
2. Then, Wizards can declare the license void, either between it and the particular licensee that obtained the ruling from the Court, or invalid in toto.
3. If Wizards does not elect option 2, then the invalid provision is severed and the remaining license continues to be enforceable.

Is this more or less ironclad than the term "authorized"?

 

[Justice and Rule]

So, on that. "Morality clauses" (which is what I have been calling this) are not common in these types of licensing agreements simply because most licensing agreements are easy to terminate for other reasons through a specified procedure, and often have a limited term that can be renewed only upon specified conditions being met. But this isn't most licensing agreements, this is supposedly an open license.

To back up again, the fundamental drafting (and PR) issue appears to be this-
Hasbro wants some control over licensees in terms of the brand.
But that type of control over the derivative works is anathema to most concepts of an open license that allow the propagation of derivative works.

I'm curious to see what they produce with additional time and feedback. I think the next version will tell us a lot about what they are really thinking.

No, you said as such in the post in the other thread. And l totally understand what you are saying here, but I also think it's fairly reasonable to look at the deal and not trust it simply because of what we saw before in 1.1. I get that they may want some level of control over their brand, but at the same time they've initiated bad-faith actions against other contract holders who were faithfully adhering to their contracts, along with their actions in trying to push OGL 1.1 out the door would be enough to have anyone look at such a thing and, given how much power it given them, to assume that it was a backdoor for them to do what they wanted to do in the first place.

I get trying to look at things with more understanding, but when someone reveals themselves as a killer GM, it's hard to get people to believe they've changed when they haven't haven't done all that much to prove it. And let's be honest, as a hobby we aren't exactly known for our great trust in authority figures: 10 foot poles got an item entry for a reason.

 

[Snarf Zagyg]

Is this more or less ironclad than the term "authorized"?

Hard to tell if you're trying to make a point or trying to be clever, but there is a real answer to this.

It's a billion times more ironclad. You know how I've discussed (even had a whole thread!) about boilerplate language? Well, one advantage of that is that boilerplate ... is boilerplate. It's common. To start with, every attorney and every judge who reads a severance clause knows exactly what "held" means. Second, even if you ran into someone who didn't, the clause doesn't make sense without that meaning- because it then refers to the "party that obtained the ruling," which only makes sense in the context of a court case. Which ends with the court "holding" that a provision is invalid.

There is no ambiguity in that at all.

Now, I've repeatedly stated that a major problem with the OGL 1.0(a) is the poor drafting. So, let's look at the provision in question-

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

When you read this, there's a few things to note. First, most contracts have a boilerplate provision that says that you don't use the titles of sections to interpret them. This one? Nope. So "Updating the license" is part of the contract.

Next, this means that the contract can be updated. How? Well, Wizards will publish an updated version of it! Cool. So ... what happens then? Well, then you can use any authorized version of the contract.

Huh. Okay. So ... what does that mean? Is update defined or otherwise referred to? There's one reference to "update" in Section 6, but that doesn't help. So .... no. What about authorized? Authorized HAS to be defined or in there, right?

Nope.

So this is where it gets special. We all have ideas in our heads. Maybe you've heard from Ryan Dancey had to say about what he thought. Maybe you're thinking about what everyone knows to be true. But if you can push that down the memory hole and just focus on that provision ... it's not clear at all. At best, it's ambiguous. At worst, from a textual standpoint, the existence of authorized versions of the contract implies that in updating the license, in providing updated versions, Wizards determined which versions are ... authorized. Including which prior versions.

So yeah- it is completely different.

 

[dave2008]

Because in general, and but more specifically in severance clauses, "hold" has a meaning. It is when a court holds a provision to be unenforceable or invalid.

So to understand that clause, you realize that it's a multi-part process.

1. First, there has to be a judgment from a Court that holds a provision to be unenforceable or invalid.
2. Then, Wizards can declare the license void, either between it and the particular licensee that obtained the ruling from the Court, or invalid in toto.
3. If Wizards does not elect option 2, then the invalid provision is severed and the remaining license continues to be enforceable.

And I would assume WotC can't take their own license to court to get a judgement correct?

 

[Snarf Zagyg]

And I would assume WotC can't take their own license to court to get judgement correct?

Correct. You can't take yourself to court.

Leads to blindness and hairy palms. ... j/k. Seriously, though, you can't.

 

[dave2008]

Correct. You can't take yourself to court.

Leads to blindness and hairy palms. ... j/k. Seriously, though, you can't.

That is what I thought, but that was the only way Blue's statement made any sense so I wanted to make sure.

 

[Blue]

Well, gee, if you knew it, why didn't you write it?

blink

It says what it says. I never made any claims otherwise. That you assume I meant things I didn't say is on you. Trying to claim that because I didn't write something but you assumed it make me in the wrong is just you playing the victim card.

Instead, you used the word to imply that Wizards is the one that can unilaterally "hold" that it is invalid, and (in addition) you've been repeatedly banging this drum. If you didn't mean to, then maybe stop? And, for that matter, stop arguing with me to tell me that I'm correct. I already know that I'm correct on this.

Never used the world hold, I said there was a self destruct clause in it. Exactly as written. I never said WotC could initiate finding part of it invalid - that's your assumption. I just pointed out that if any part is found invalid, WotC can cancel the whole thing, for everybody.

If you are taking that as me telling you are right, I think you're projecting motivations on what I wrote. Again.

I didn't claim that. My words speak for themselves- I think anyone can judge my level of familiarity with legal concepts and with what is going on by seeing what I've written.

Do you have yet another incorrect assumption about me, that I've read all that you have written?

I just found it highly amusing that you thought it prudent to lecture me on not just severance clauses in general, but this one in particular. Amusing, that's the word for it, right?

I don't know if you found it amusing or not, but since you claimed that it did not have a clause that it did, I'm glad some one took you to task. Imaging boasting about how much you've written about it yet claim it doesn't contain something that it does.