My thoughts on the new OGL v1.2 draft

[Thomas Shey]

Because either 1) it's not really something they can do, or; 2) no one thought of it before.

Or 1a)Its not something they thought at the time they could do. Whether they actually can or not is not relevant to their actions here; whether they think they can is.

 

[pemerton]

They presented the ogl as irrevocable for 20 years until now. So either they were lying then or they're lying now.

(1) I don't think they ever said that they couldn't withdraw their offer to license. (This is based on recollection of the FAQ; if I'm wrong I'm happy to be corrected.)

(2) They appeared to think that the power of licensees to sub-license couldn't be lost. Now they seem to think differently. That doesn't make either thing a lie - parties to contracts can discover new legal possibilities they didn't know about at an earlier time.

(3) Their remarks made on the FAQ, in other public forums, and to individual publishers, may give all or some 3PPs rights - either by informing the interpretation of the contract, or creating other rights around the contract (eg estoppel, waiver, etc). There's been quite a bit of discussion of that in the earlier pages of the PSA-lawyer thread. WotC may be asserting legal powers it doesn't have. That doesn't mean its lying - it's not uncommon for parties to a contract to disagree (in self-interested way) on what rights and powers it confers on each of them.

 

[Thomas Shey]

That doesn't mean its lying - it's not uncommon for parties to a contract to disagree (in self-interested way) on what rights and powers it confers on each of them.

Just to clarify, you position is that rather than knowingly expressing a falsehood there, they may be, effectively, self-deluded? (I know that's a pretty harsh way to express it, but I don't think either is a particularly benign position, so...)

 

[Clint_L]

I think he's saying that there is a lot of nuance when it comes to legal contracts, and there is room for different interpretations, especially when complicated licenses haven't been litigated. My best buddy is a lawyer, and one thing I've learned from many chats with him is that the law is extremely complicated and even experienced lawyers working within their specialization can and do disagree.

 

[pemerton]

Just to clarify, you position is that rather than knowingly expressing a falsehood there, they may be, effectively, self-deluded? (I know that's a pretty harsh way to express it, but I don't think either is a particularly benign position, so...)

What I'm saying is that establishing legal rights, based on the interpretation of a contract, is not always straightforward.

Some litigation involves arguing over facts. But a lot of it involves arguing over who has what rights, given the undisputed terms of an instrument. It's not always the case that one of the parties to the litigation must be lying or self-deluded.

 

[Jer]

(1) I don't think they ever said that they couldn't withdraw their offer to license. (This is based on recollection of the FAQ; if I'm wrong I'm happy to be corrected.)

Sure - here's one from the ogl faq:

Q: Can't Wizards of the Coast change the License in a way that I wouldn't like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

Open Game License:Frequently Asked Questions

Open Game License: Frequently Asked Questions -- Version 2.0 -- January 26, 2004

web.archive.org

Now I admit I'm not a lawyer. But as far as deciding whether a company is being deceptive or not, this is what they said when they wanted us to buy into the License- that even if Wizards wanted to change the license we could keep using the old one so it wouldn’t matter.

If you object to the term lie on some technical definition then fine. We'll agree to disagree. But they absolutely cannot be trusted to keep their word anymore about anything. Which to me makes them liars.

 

[pemerton]

Sure - here's one from the ogl faq:

Q: Can't Wizards of the Coast change the License in a way that I wouldn't like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

Open Game License:Frequently Asked Questions

Open Game License: Frequently Asked Questions -- Version 2.0 -- January 26, 2004

web.archive.org

Now I admit I'm not a lawyer. But as far as deciding whether a company is being deceptive or not, this is what they said when they wanted us to buy into the License- that even if Wizards wanted to change the license we could keep using the old one so it wouldn’t matter.

But that's not a statement that they won't withdraw their offer. It's a statement about the entitlements of existing licensees (ie those who accepted the offer).

That difference between the status of actual licensees, and the status of prospective future licensees, is crucial. And WotC is not lying about it in the FAQ passage above.

If you object to the term lie on some technical definition then fine. We'll agree to disagree. But they absolutely cannot be trusted to keep their word anymore about anything. Which to me makes them liars.

I'm not playing semantics. I'm pointing out that many many people did not read what WotC was saying accurately: eg they read "change in licence" and interpreted that as meaning change in the terms of the standing offer whereas I think it clearly meant change to the terms of an extent licence that is on foot with an existing licensee.

And this all flows from approaching this matter as if WotC was a legislator, rather than a licensor.

 

[mamba]

Pretty much exactly where I am. There is no way to wrangle this into an acceptable license that WotC cannot wiggle out of. Irrevocable 1.0a, nothing less

 

[Jer]

But that's not a statement that they won't withdraw their offer. It's a statement about the entitlements of existing licensees (ie those who accepted the offer).

That difference between the status of actual licensees, and the status of prospective future licensees, is crucial. And WotC is not lying about it in the FAQ passage above.

I'm not playing semantics. I'm pointing out that many many people did not read what WotC was saying accurately: eg they read "change in licence" and interpreted that as meaning change in the terms of the standing offer whereas I think it clearly meant change to the terms of an extent licence that is on foot with an existing licensee.

And this all flows from approaching this matter as if WotC was a legislator, rather than a licensor.

How can you read that sentence in italics and think it means they can deuthorize the ogl 1.0a? It's literally saying that they can't do that. That if they try to change the terms we can still use the old terms. The thing that wizards is expressly saying now we cannot do.

I'm serious. I do not understand how you square that.

 

[mamba]

Hasbro: What? We want a successful community and 3PP. This is just to make sure that we get to decide what is best for the brand. We would work with anyone in good faith. We just don't want to get tied up in court forever because we're trying to get rid of some Stormfront D&D. But if you're working in good faith, of course we'd work with you! You trust us, right?

3PP: .....you've got to be kidding me.

Pretty much, they have painted themselves into a corner, and I have no idea how to get them out of it. I guess they killed the OGL, if not legally, then at least effectively, and no 1.2 can revive it