OGL My thoughts on the new OGL v1.2 draft

pemerton

Legend
There's also a moral argument for protecting the open gaming commons. If a person or company has contributed work to the commons under OGL 1.0a, they intended it to be shared forever under those terms. Some of those people and companies no longer exist. They won't be moving to another license. Even if the OGL commons doesn't grow like it used to because publishers begin using the ORC, we should fight for rights of new reusers to grow the OGL commons.
I'm mostly trying to talk about the legal issues. But I think that what we are seeing now was always the risk of people hitching their creative endeavours to a commercial entity's copyrighted work. To put it another way, it was never really - in legal terms - a commons. That's why I look at your desired outcome through the lens of what private rights are present licensees able to assert, and what powers do they continue to enjoy to sub-license to new parties.
 

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Haplo781

Legend
Until it isn’t.
And then it's a new precedent.

If a court were to find that an open license modeled on the GPL can be "deauthorized", then it means the GPL can probably be "deauthorized". And then everyone who licenses their software under the GPL can release a notice saying "Hasbro Inc., its subsidiaries and licensees are no longer authorized to use any software developed under the GPL" and suddenly they'd be unable to use anything more recent than Windows 3.11.
 


rcade

Hero
I'm mostly trying to talk about the legal issues. But I think that what we are seeing now was always the risk of people hitching their creative endeavours to a commercial entity's copyrighted work. To put it another way, it was never really - in legal terms - a commons. That's why I look at your desired outcome through the lens of what private rights are present licensees able to assert, and what powers do they continue to enjoy to sub-license to new parties.
It is a commons in the same way that the GPL created a commons. Expensive lawyers at a giant entertainment corporation can try to spin a new reality into existence, but for 23 years we all believed the OGL was completely risk-free to rely on and we had good reason to believe it.

Especially since the only WOTC copyrighted work being reused was a new document created for the specific purpose of being shared. We weren't touching D&D IP or the D&D brand.
 

Thomas Shey

Legend
Frankly, this is just bizarre. It's utterly routine for parties to contracts, or similar legal arrangements, to identify new possible constructions of their entitlements and powers under those contracts and try and exercise them.

Sometimes this is to try and wriggle out of things. Sometimes this is to try and get others to do new things. Sometimes it is "offensive", sometimes "defensive".

I'm perfectly willing to describe most of those as "confused" or "dishonest" too. Frankly, (Whether those are being applied to the participants or the court system, of course, varies from situation to situation) that seems a good description of most contract violation cases I've seen.

(If you interpret this is my having a slightly dubious of the U.S. l;egal system in general and contract law in specific, you would be interpreting my statement correctly).
 

pemerton

Legend
It is a commons in the same way that the GPL created a commons. Expensive lawyers at a giant entertainment corporation can try to spin a new reality into existence, but for 23 years we all believed the OGL was completely risk-free to rely on and we had good reason to believe it.
Well, when I posted 10 and 15 years ago about the possibility of WotC revoking its offer, and what might flow from that, I didn't get much traction! But I think that if I was thinking about this possible pathway to risk looking over the licence as a legally educated poster in my spare time, then Paizo's lawyers had probably noticed it too. So I doubt that they have been thinking the OGL is risk-free. But from their point of view, they couldn't have gone down the Pathfinder, "3.5 Thrives" pathway, in the way they did, without relying on the OGL So presumably they've been making a judgement call about how much risk they can tolerate; and also about what their appetite for litigation is.
 

Yaarel

Mind Mage
A declaration of right doesn't "nullify" anything. It does what it says on the tin. And as I posted upthread, a quick Google confirmed my suspicion that it is also available in US law.

"Australian games" don't have standing to sue WotC anymore than anyone else does.
If I am understanding a "declaration" right, it can preemptively prevent an attempt to "de-authorize" the OGL 1.0a. At least jurisdictionally.

If you are familiar with what a declaration can do, can you clarify?
 

pemerton

Legend
Uh-huh.

Doesn't change the fact that they'd be shooting themselves in the head if they won.
They will be arguing about the particular terms of their particular licence. I imagine that the other parties to the litigation might want to make the case about something else, but I would expect WotC's legal team to work hard to keep the focus of any case on the issues that matter to them.
 

I am not sure why people are using emotional arguments against what pemerton is saying.

If he says that the FAQ does not say and the license does not say that it will be offered forever, take that at face value. If he is wrong, point him to the text that WoTC put forth otherwise.

If you read the PSA thread and looked at the post he made in 2008, he is not saying that WoTC is in the right or that he does not think there is a good argument that WoTC cannot unilaterally deauthorize 1.0a.

He is just saying that he does not see evidence that they said they will ever stop offering the license.

I paid a lot of money to lawyers (like $10’s of millions) in my career and denying reality when they are giving you a legal reading is really counter productive.

If I am remembering right, he is not even a USA lawyer and has not passed the bar exam in a U.S. state.

His observations seem spot on to me and would be really helpful when preparing litigation/defense against an action that WoTC might take.

Publishers are near the spot where they would be able to sue. WoTC might have crossed the line where damages are really happening because they finally are public that they will stop offering the license for anything new (which may mean reprints or new pdf sales).

I had some hope that UK law is harder for them to overcome but if they sue one bookshelf and win in the USA (or just scare them), then how much does a UK victory really mean? Or Kickstarter? Every 1.0a launch gets a C&D?
 

pemerton

Legend
If I am understanding a "declaration" right, it can preemptively prevent an attempt to "de-authorize" the OGL 1.0a. At least jurisdictionally.

If you are familiar with what a declaration can do, can you clarify?
A declaration of right - also called (at least in my jurisdiction) declaratory relief or just a declaration -is an authoritative statement, by a court, as to what the legal rights of the parties are.

That's what it does. It has no further consequences. It's not an injunction.
 

Yaarel

Mind Mage
A declaration of right - also called (at least in my jurisdiction) declaratory relief or just a declaration -is an authoritative statement, by a court, as to what the legal rights of the parties are.

That's what it does. It has no further consequences. It's not an injunction.
Can a Declaratory Relief enforce the right to continue using the OGL 1.0a?
 

pemerton

Legend
I am not sure why people are using emotional arguments against what pemerton is saying.

<snip>

If I am remembering right, he is not even a USA lawyer and has not passed the bar exam in a U.S. state.
I'm Australian. I'm not admitted to practise in any jurisdiction - I am an academic. I teach both private law and public law. I have published on some aspects of IP law, but it's not my field - I worked with a colleague who is an expert in trademark law. My expertise that is relevant in this context is in estoppel (as that doctrine works in Australia), private law theory, and legal interpretation (both theory and practice).

The arguments that I'm flagging - which focus on textual interpretation of the contract against the background of general private law principles - reflect my expertise. I do my best to make it clear that I'm not being dogmatic, and to explain what I see as the strengths and weaknesses of various interpretive arguments.

WotC's conduct and representations in its FAQ, on mailing lists, and in other correspondence, are also highly relevant to this OGL situation. Just as I said in 2008, they may establish an estoppel. And they may also be relevant to interpreting the contract. But I am not saying as much about them, for the reason that whether and how those facts could be led in litigation isn't something I can comment on with any expertise - except to say that those details will turn heavily on the broader details of WotC's case and the defence led by a 3PP.
 

pemerton

Legend
Can a Declaratory Relief enforce the right to continue using the OGL 1.0a?
No. It's a declaration of right. That's it. It's not an order that generates new obligations on any party. (And so contrasts with specific remedies like injunction or specific performance, or money remedies like damages, all of which impose new obligations on the party against whom they are made.)
 

Yaarel

Mind Mage
No. It's a declaration of right. That's it. It's not an order that generates new obligations on any party. (And so contrasts with specific remedies like injunction or specific performance, or money remedies like damages, all of which impose new obligations on the party against whom they are made.)
But there is no "new obligation".

The point is to declare, the same rights enjoyed since year 2000 remain in effect.

Can a Declaratory Relief apply in this case?
 

rcade

Hero
I paid a lot of money to lawyers (like $10’s of millions) in my career and denying reality when they are giving you a legal reading is really counter productive.
The contributions of lawyers and legal experts are extremely valuable but there are aspects of what they say that are worth some pushback.

This isn't just about the law. It's about what thousands of gamers believed about the OGL for 23 years, the actions taken because of the OGL and what we should do in response to Hasbro's attack on the commons.

If Hasbro loses badly enough in the present it could declare victory and do nothing to the OGL. There'd never be a court case for the lawyers here to be right about.
 

overgeeked

B/X Known World
And then it's a new precedent.

If a court were to find that an open license modeled on the GPL can be "deauthorized", then it means the GPL can probably be "deauthorized". And then everyone who licenses their software under the GPL can release a notice saying "Hasbro Inc., its subsidiaries and licensees are no longer authorized to use any software developed under the GPL" and suddenly they'd be unable to use anything more recent than Windows 3.11.
Yeah. But that won’t happen. So why spend time talking about it? You honestly think all software companies will magically band together and deny Hasbro the ability to use their collective software?
 

pemerton

Legend
But there is no "new obligation".

The point is to declare, the same rights enjoyed since year 2000 remain in effect.

Can a Declaratory Relief apply in this case?
I'm not sure what you're asking.

A party to the OGL with WotC could sue seeking a declaration that it continues to enjoy contractual rights in respect of use of OGC even if WotC were to withdraw its offer to license the SRD to all comers. If it won, then the court would declare that they enjoy those rights under the contract.

How WotC responded to that would depend on its legal advice.

Generally, declaratory relief is sort against parties who can be relied upon to bring their behaviour into conformity with their known legal obligations - governments (at least in rule-of-law countries), law and accounting firms (at least those that rely on their reputation for excellence and probity), etc. Whether WotC could be relied upon to bring its behaviour into conformity with its declared legal entitlements is something that others can conjecture on.
 

Yaarel

Mind Mage
I'm not sure what you're asking.
Heh, how can you not be sure what I am asking?

How would you use the Declaratory Relief to end the threat of an Anti-OGL?


A party to the OGL with WotC could sue seeking a declaration that it continues to enjoy contractual rights in respect of use of OGC even if WotC were to withdraw its offer to license the SRD to all comers. If it won, then the court would declare that they enjoy those rights under the contract.
Ok. So here you are saying, if WotC tries to de-authorize the OGL 1.0a, those who participate in the OGL 1.0a can seek a Declaration to continue using the OGL 1.0a.

Is there nothing to be done preemptively, before Hasbro-WotC tries to deauthorize?


Whether WotC could be relied upon to bring its behaviour into conformity with its declared legal entitlements is something that others can conjecture on.
Yeah.
 


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