Just reposting from Heath's Geekverse

[Haplo781]

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.

I am genuinely curious. Don't have a dog in this race and zero legal background. WotC has show they don't act in good faith, so if there's a way to creatively interpret the language here they will likely try it sooner or later.

 

[Snarf Zagyg]

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.

Wow ... someone took me to task?

Looks like your ego is writing checks that your knowledge and writing can't cash. Now you're just making stuff up. Given that you've devolved from making a questionable claim to simply lying, I think we're good.

 

[dave2008]

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.

What, you most certainly did (underline and bold by me):

Let's look at 9(d), bolding mine:
Severability. If any part of this license is held to be unenforceable or invalid for any reason, Wizards may declare the entire license void, either as between it and the party that obtained the ruling or in its entirety. Unless Wizards elects to do so, the balance of this license will be enforced as if that part which is unenforceable or invalid did not exist.

If you would like to claim this isn't there, then you are mistaken. 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", then you are also wrong.

Now, I can't claim to have necessarily read or remember everything in this discussion, but...

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.

...I don't think Snarf ever claimed the OGL 1.2 didn't have severability clause. I know for a fact that Snarf knows it has one, see links below (FYI, both of these predate this conversation). Now, perhaps Snarf claimed it didn't mean what you seem to think it means.

Suggested Reading:
Snarf severability post 1
Snarf severability post 2

EDIT. There is another explanation of mutual misunderstanding. I can kind of see how that is possible.

 

[Snarf Zagyg]

...I don't think Snarf ever claimed the OGL 1.2 didn't have severability clause. I do know for a fact that knows it has they wrote a whole post about. Now, perhaps Snarf claimed it didn't mean what you seem to think it means.

I honestly don't know what he's thinking, given that I have been writing about the severance ... sorry, the "Self Destruct" clause for some time now. But you know ... I never knew it existed until he pointed it out! Because REASONS!

And I honestly have no idea what he seems to think it means, as the value for that does change over time.

 

[Staffan]

I feel like acting like there isn't a rhyme or reason to what's going on, that this is all innocuous really has to ignore a lot of WotC's actions up until now. Like, their lawsuits against Weis/Hickman regarding their Dragonlance book, as well as their lawsuit against GF9,

I may be misremembering things, but I'm pretty sure those lawsuits were in the opposite direction: Wizards were sued by Weis/Hickman and GF9. It still says something about Wizards' trustworthiness as a business partner though: the reason they were sued was that they misused the approvals process in Weis/Hickman's and GF9's licenses to prevent them from releasing things, effectively trying to cancel those licenses without actually canceling them.

 

[Justice and Rule]

I may be misremembering things, but I'm pretty sure those lawsuits were in the opposite direction: Wizards were sued by Weis/Hickman and GF9. It still says something about Wizards' trustworthiness as a business partner though: the reason they were sued was that they misused the approvals process in Weis/Hickman's and GF9's licenses to prevent them from releasing things, effectively trying to cancel those licenses without actually canceling them.

Yeah, I meant to say "with" rather than "against", but I was in a bit of a hurry to do some shoveling. But again, it's not simply people jumping at shadows in regards to WotC's intent, but rather their own aggressive (or possibly passive-aggressive when it comes to Weis/Hickman/GF9) moves on this front that are getting people to look at these things as trapdoors.

 

[mamba]

Actually, one could argue that the actual first public release (OGL 1.2) is proof that they are willing to listen and make changes.

nah, they were strongarmed into changes. They made them unilaterally in hopes this would go away, while keeping all the important ones (to them) in place.

The current offer is only marginally better, the fees went away

 

[mamba]

I will admit that I only recently started looking into what is going on there (VTT policy) and I can see your point. It seems pretty bad, but I still haven't gone in depth into it. IIRC the first survey didn't have many questions about the VTT policy (I only remember one), so I didn't pay much attention to it. I hope it is featured more in a future survey, because it has a lot of issues IMO.

not the least of which is that it is not part of the OGL, so they can change it whenever they feel like it

 

[mamba]

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

yes, it is not up to them to decide

 

[Enrahim2]

@Blue @Snarf Zagyg I dont know if there is some history here between you that I am not seeing? If not this seem to me to be a simple misunderstanding, and you both appear to agree on the funadamentals, you just talk about completely different things.

@Blue , you appear hurt that Snarf accused "you" of reading hasbroo as evil. It appear this hurt is that you agree with Snarf that such an outlook is wrong, and you hence dont want to be associated with it?

@Snarf Zagyg I assume your outburst regarding people reading the devil into hasbros actions was more an outburst of general frustration over laymens here problematic ignorance related to basic law than spesifically targeted at Blue? And that when Blue tried to clarify what he intended to say, you rather took it as him trying to lecturing/belitteling you? Even though what he basically said was that he agreed with your legal understanding?

I am not a moderator, and I might be off base with this, but I just find it sad to look at two people that seem like should be draging in the same direction get so unaligned due to seemingly unfortunate choice of words. And I really hoped this outside look at the situation could help clear some air.

(It is probably best if you dont reply to this, even (or maybe especially) if I am completely wrong with my reading of the situation)