More thoughts on Opening Arguments 0675

[ThorinTeague]

I am not a lawyer!

(BTW, there's a second one now, OA0677... I think it's pretty much just doubling down but I feel no compunction to listen.)

In my earlier posts, as I calmed down and slept a couple days, I postulated (in my 110% unqualified, unprofessional, untrained opinion), that OA0675's assertion that "perpetual" does not imply "irrevocable;" their assertion that the owner of a "perpetual" license CAN revoke it, is probably correct. E.g., put the "perpetual vs. irrevocable" idea in a vacuum, seal it up in a bottle, take it into court, and I felt confident in assuming OA has a case. An out-of-context, poorly spirited, exploitive case... but a case.

But then I got curious.

I have no authority to judge the validity of my sources or lack thereof so I can only tell you what I saw. I started searching for the legal definition of "perpetual." The first three sources didn't address the issue explicitly at all, but they all said to the effect of (paraphrasing) that perpetual means a license that is unaffected by the passage of time. Implying that something other than the passage of time can indeed affect it. Again, looking good for OA.

The fourth source I looked at addressed the question directly. It said, "A perpetual statute until repealed by an act professing to repeal it, ..." Right. OA is correct. Concluded.

BUT WAIT.

There's this one juicy, sexy little part of a sentance. Something that grabbed my attention pretty hard. I again am not a lawyer but if correct, this seems to blow OA's entire point completely out of the water: "notwithstanding an implication to the contrary."

Uhhhh.... hmmm. An implication to the contrary. Gosh. Do public statements from the authors of the OGL, directly contradicting the revocability of the OGL constitute an "implication" to the contrary? Does Paizo's unlitigated success from 2008-2012 constitute an "implication" to the contrary? Does the fact that everyone--EVERYONE knows what this license means, and have known what it means, for over 22 years, constitute an "implication" to the contrary?

I don't know, legally, but those are some pretty strong implications to the contrary.

From where I stand (in my completely unqualified opinion), OA is looking legally wrong to me now. Not just in a human/contextual/non-legalistic/narrative way, but actually legally wrong.

Love to hear any thoughts that might set me straight. And I'll keep digging as time permits.

 

[mamba]

The correct answer seems to be ‘no one knows for sure’.

The best answer Google found (imo) was

“A non-exclusive copyright license (such as most FOSS licenses) can be revoked at any time only if there was no consideration involved. The United States Federal Circuit Court of Appeal took this on in Jacobsen v. Katzer in 2008 and ruled that there is consideration exchanged in the use of FOSS by a licensee. This indicates that an FOSS license that's silent on revocation is likely revocable only for violation of it's conditions”

As the OGL involves consideration, that would make it (likely) irrevocable

 

[ThorinTeague]

The correct answers seems to be ‘no one knows for sure’.

The best answer Google found (imo) was

“A non-exclusive copyright license (such as most FOSS licenses) can be revoked at any time only if there was no consideration involved. The United States Federal Circuit Court of Appeal took this on in Jacobsen v. Katzer in 2008 and ruled that there is consideration exchanged in the use of FOSS by a licensee. This indicates that an FOSS license that's silent on revocation is likely revocable only for violation of it's conditions”

As the OGL involves consideration, that would make it (likely) irrevocable

Oh yeah, I know that's the actual, concretely correct answer. But that sentence was looking pretty sexy this morning.

 

[Snarf Zagyg]

I am not a lawyer!

First things first- if you don't know much about the law, and are not an attorney, it is probably for the best if you don't just start randomly googling things and then try and make a legal argument from it. Right? Right!

But then I got curious.

Oh .... oh no.

The fourth source I looked at addressed the question directly.

See, it's usually not a great idea to just keep looking for sources until you find something that might agree with you.

It said, "A perpetual statute until repealed by an act professing to repeal it, ..." Right. OA is correct. Concluded.

BUT WAIT.

There's this one juicy, sexy little part of a sentance. Something that grabbed my attention pretty hard. I again am not a lawyer but if correct, this seems to blow OA's entire point completely out of the water: "notwithstanding an implication to the contrary."

So this is what you are quoting (in full, from US Legal)-
A perpetual statute refers to a statute without limitation as to time. The continuance of a perpetual statute is not limited, although it is not expressly declared to be so.

The following is an example of a case law on perpetual statute:

A perpetual statute until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon. [Gaddis v. Board of Comm'rs, 93 Ind. App. 658, 664 (Ind. Ct. App. 1932)].

So here's the thing. See all those bolded things I just did? If you were reading this, with knowledge of the subject matter and without the desire to simply find words to support you, you'd see that what you were reading has nothing to do with licenses or contracts.

It is about legislation. Statutes. Laws passed by legislatures- which have completely different rules than licenses and contracts entered into by private parties.

Love to hear any thoughts that might set me straight. And I'll keep digging as time permits.

I appreciate the effort, but ... not great, Bob.

 

[mamba]

You should be called Snark Zagyg

 

[Shades of Eternity]

Yeah a lot of this pushback is on feels but the simple fact is in a perfect world, lawyers don't work on feels.

 

[aco175]

First things first- if you don't know much about the law, and are not an attorney, it is probably for the best if you don't just start randomly googling things and then try and make a legal argument from it. Right? Right!

Is this like the time I asked WebMD what is wrong with me and come to find out- I am not dying (at least not soon, that I know about) of some horrible disease that only affects 1 out of a gazilion.

 

[Snarf Zagyg]

Is this like the time I asked WebMD what is wrong with me and come to find out- I am not dying (at least not soon, that I know about) of some horrible disease that only affects 1 out of a gazilion.

 

[ThorinTeague]

First things first- if you don't know much about the law, and are not an attorney, it is probably for the best if you don't just start randomly googling things and then try and make a legal argument from it. Right? Right!



Oh .... oh no.



See, it's usually not a great idea to just keep looking for sources until you find something that might agree with you.




So this is what you are quoting (in full, from US Legal)-
A perpetual statute refers to a statute without limitation as to time. The continuance of a perpetual statute is not limited, although it is not expressly declared to be so.

The following is an example of a case law on perpetual statute:

A perpetual statute until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon. [Gaddis v. Board of Comm'rs, 93 Ind. App. 658, 664 (Ind. Ct. App. 1932)].

So here's the thing. See all those bolded things I just did? If you were reading this, with knowledge of the subject matter and without the desire to simply find words to support you, you'd see that what you were reading has nothing to do with licenses or contracts.

It is about legislation. Statutes. Laws passed by legislatures- which have completely different rules than licenses and contracts entered into by private parties.


I appreciate the effort, but ... not great, Bob.

Statute does not mean license. I wasn't getting that. I get it now.

Thank you!

 

[Snarf Zagyg]

Statute does not mean license. I wasn't getting that. I get it now.

Thank you!

If it helps, a primary issue in dispute for attorneys is the question about whether the OGL is, in fact, a "license."

The rule for licenses is that unless they are expressly stated to be irrevocable, they are revocable. This makes sense, because licenses tend to be things that are offered - and for various long-standing historical reasons, the law disfavors licenses that are both perpetual (last forever) and cannot be revoked.

On the other hand, if the OGL is a contract, the rules are slightly different. Contracts are "bilateral" (two parties have obligations) and the rules are different ... generally, the presumption is that contracts cannot be unilaterally revoked - a unilateral revocation of a contract would be a breach by a party.

Anyway, that's just the beginning of the issues in terms of the legal framework; it's even more difficult in terms of litigation.

Hope that helps.