OGL More thoughts on Opening Arguments 0675

ThorinTeague

Explorer
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 It said, "A perpetual statute until repealed by an act professing to repeal it, ..."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.
 

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mamba

Hero
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
 
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ThorinTeague

Explorer
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. :p
 

Snarf Zagyg

Notorious Liquefactionist
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. :)
 



aco175

Legend
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

Notorious Liquefactionist
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.

its-never-lupus-lupus.gif
 

ThorinTeague

Explorer
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

Notorious Liquefactionist
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.
 

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.
I am sure it is fixed now, but when I googled my symptoms way back when I was pregnant ... if so then I have been for 30ish years, and I should be rich since I am a guy.
but to be fair this entire thought process is funny because.
The correct answer seems to be ‘no one knows for sure’
The best we can tell is most are pretty sure that RAW it should work but RAI it should not. It depends on the judge.

My non lawyer understanding is that it will be an argument and depending on who has the better research team will have the better prep advantage, and the one with the lawyer that thinks best on there feet will make the best arguments... and all of that can mean nothing based on what judge they draw.

if EVER I saw a moment where a bunch of players would be standing watching each and every d20 roll with growing excitement and fear...
 

ThorinTeague

Explorer
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.
At this point I shall just reiterate what has always been my OFFICIAL stance on the whole mess:

Jeepers.

And you can quote me on that. :D
 

Iosue

Hero
(BTW, there's a second one now, OA0677... I think it's pretty much just doubling down but I feel no compunction to listen.)
Not so much doubling down, but certainly not a retraction or mea culpa. I don’t imagine that people unhappy with the first episode will be happy with the follow-up.

The episode mainly deals with three issues they didn’t have the time to go into previously:

1) Does what Dancey say about the intent of the OGL matter? (They fall on the side that it does not, and speaking generally, probably wouldn’t even be admissible.)

2) Is the OGL an open source document? (They think not, because it restricts the content that can be used [“can be copied verbatim” in GPL vs. “cannot be copied verbatim” in OGL 1.0], and while any additions to the source code must also be open source in GPL, this is explicitly not the case for the OGL. Therefore, if Dancey represented to 3PP that they were getting into an open source environment, he was being misleading.)

3) Can game mechanics be copyrighted? (They disagree with LegalEagle and the EFF, at least as far as RPGs go, inasmuch as many RPG rules seem to fall under “expression,” the rules for dragons being called out as an example.)

Legal interpretations aside, IMO their understanding of the situation as a whole is hampered by their inability to wrap their minds around why a commercial corporation would release their rules in an open license in the first place. Accordingly, they take WotC’s claim that the OGL was not intended for other big companies (ostensible competitors) at face value. But of course, the whole point of the OGL was not to help the little guy, the homebrewer, but for other companies to publish adventures and supplements that would feed into the D&D market. So they are mystified that Paizo was allowed to simply repackage and sell the whole game.
 

Mannahnin

Scion of Murgen (He/Him)
Legal interpretations aside, IMO their understanding of the situation as a whole is hampered by their inability to wrap their minds around why a commercial corporation would release their rules in an open license in the first place. Accordingly, they take WotC’s claim that the OGL was not intended for other big companies (ostensible competitors) at face value. But of course, the whole point of the OGL was not to help the little guy, the homebrewer, but for other companies to publish adventures and supplements that would feed into the D&D market. So they are mystified that Paizo was allowed to simply repackage and sell the whole game.
If they took the time to look at the facts of what the stated intent of the OGL was, how it was used for the past 22 years, and what WotC said about it officially and publicly (including on the FAQ on their website which only came down in November of 2021, in which they directly assured the world that it could never be revoked), perhaps they would be less mystified.

It might also help if they had any knowledge of TSR's prior litigiousness toward fans, the failure of that company, and the context in which WotC created the OGL.
 

raniE

Adventurer
It really seems these people would rather keep digging than admit they started talking naughty word about something they have absolutely no clue about and were wrong.
 

ThorinTeague

Explorer
If they took the time to look at the facts of what the stated intent of the OGL was, how it was used for the past 22 years, and what WotC said about it officially and publicly (including on the FAQ on their website which only came down in November of 2021, in which they directly assured the world that it could never be revoked), perhaps they would be less mystified.

It might also help if they had any knowledge of TSR's prior litigiousness toward fans, the failure of that company, and the context in which WotC created the OGL.
In 0675 (the first one) it was pretty laughable listening to the lawyer assert with 100% confidence what the authors of the OGL intended and did not intend. Other than the fact that making assumptions about the intentions of the authors of a legal document, when said authors are not around to confirm or disconfirm, is something I always thought pracitioners of law tried to avoid--their assertions were 180 degrees dead wrong. The complete opposite of correct. It'd be one thing if they were retired, staying silent, or gone from this world and we didn't know. But the people who wrote that document are not being silent... :unsure:
 

Maxperson

Morkus from Orkus
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.
As a complete aside, all of these OGL conversations have reminded me how much it irritates me that Revoke and Revoked use a K, but Revocation and Revocable use a C. Who came up with this stuff!? :mad:
 

Arakhor

Explorer
No one would pronounce revoke correctly if it was spelt with a C, as in the Latin  revocare, so it's spelt with a K to match its pronunciation. ;)
 

Maxperson

Morkus from Orkus
No one would pronounce revoke correctly if it was spelt with a C, as in the Latin  revocare, so it's spelt with a K to match its pronunciation. ;)
But then would it have been so much to ask for them to have spelled the others revokable and revokation? 🤔
 

Arakhor

Explorer
The simple answer is that's not what happened. The longer answer is that Western European languages are in love with Latin, and that simplifying spellings doesn't always have the ideal outcome. See  oistros -> oestrus -> estrus, with the pronunciation changing each time.
 

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