My thoughts on the new OGL v1.2 draft

[Myrdin Potter]

Looking for images to use for tokens that are public domain, I stumbled across this at rawpixel.com:

"

4. You cannot use our images in any ways that do not meet our basic Standards:​

You must not use our images in connection with any communication, document or material which:

• is defamatory of any person, obscene, blasphemous, offensive, hateful, inflammatory, or promotes or uses violent or sexually explicit material or pornography,
• promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age,
• infringes any copyright, design right, database right or trademark of any other person, or breaches any legal duty owed to a third party, such as a contractual duty or a duty of confidence,
• promotes any illegal activity or advocates, promotes, incites any person to commit, or assist any unlawful or criminal act, or is in contempt of court, or is likely to deceive any person,
• may be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety or is likely to harass, upset, embarrass, alarm or annoy any other person."

Really not that rare these days ...

 

[Thomas Shey]

Looking for images to use for tokens that are public domain, I stumbled across this at rawpixel.com:

"

4. You cannot use our images in any ways that do not meet our basic Standards:​

You must not use our images in connection with any communication, document or material which:

• is defamatory of any person, obscene, blasphemous, offensive, hateful, inflammatory, or promotes or uses violent or sexually explicit material or pornography,
• promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age,
• infringes any copyright, design right, database right or trademark of any other person, or breaches any legal duty owed to a third party, such as a contractual duty or a duty of confidence,
• promotes any illegal activity or advocates, promotes, incites any person to commit, or assist any unlawful or criminal act, or is in contempt of court, or is likely to deceive any person,
• may be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety or is likely to harass, upset, embarrass, alarm or annoy any other person."

Really not that rare these days ...

The question isn't whether a morals clause is legitimate (at least to most participants), but the combination of the black-box nature of WOTC's plan here, and the consequence of failing it.

Essentially, its presented as a morals clause, but in practice its a killswitch entirely at the discretion of Hasbro. There's no way from the outside to even tell if the decision was based on an ethical issue or a business one.

 

[mamba]

WotC needs to let the 3pp under NDA out of their NDA. And they need to release the OGL 1.1 and all associated paperwork.

what does that accomplish ? We see how bad 1.1 was, but we are looking at a very different 1.2 now...

 

[mamba]

I think the strongest arguments against WotC turn on their FAQ and related conduct and representations, rather than on purely textual interpretation.

agreed, I would have added the stated intent of the people involved in drafting the license as well though

 

[darjr]

what does that accomplish ? We see how bad 1.1 was, but we are looking at a very different 1.2 now...

It sets us both on the same playing field and doesn't let them coach what the 1.1 was.

 

[Clint_L]

The question isn't whether a morals clause is legitimate (at least to most participants), but the combination of the black-box nature of WOTC's plan here, and the consequence of failing it.

Essentially, its presented as a morals clause, but in practice its a killswitch entirely at the discretion of Hasbro. There's no way from the outside to even tell if the decision was based on an ethical issue or a business one.

I think they should do the morality clause through their new creator badge instead.

But that said, I think people are overstating the degree to which Hasbro could misuse it. As we have seen these past few weeks, public backlash is a real thing, and if they were seen to be abusing the morality clause for commercial purposes, the PR hit would be enormous. As well, lawyers on this forum have pointed out that it is not necessarily as unassailable as you might think. If they were using it for nakedly anti-competitive purposes, they might well get sued for process.

So I don't think it is either necessary or a good strategy for them, and while I do think it could be abused or enforced in ways that are dubious, it's also not a complete "do what you want" card.

 

[Justice and Rule]

But that said, I think people are overstating the degree to which Hasbro could misuse it. As we have seen these past few weeks, public backlash is a real thing, and if they were seen to be abusing the morality clause for commercial purposes, the PR hit would be enormous. As well, lawyers on this forum have pointed out that it is not necessarily as unassailable as you might think. If they were using it for nakedly anti-competitive purposes, they might well get sued for process.

If they can get past this PR hit, I'd say they'd think they can weather any other one. I'd also rather fight on the grounds of OGL 1.0a instead of uncompetitive business practices.

Really, allowing them to keep that clause will nullify anything they can give you, because they can always take it away.

 

[pemerton]

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.

No one needs any court order or court decision to keep using the OGL v 1.0a. If they are confident of their legal rights, they can just keep on publishing and be ready to defend themselves - by pleading their contract - if and when WotC commences against them for copyright infringement.

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

I'm not a litigator, but my view is that you wouldn't. You'd wait until WotC commences against you for copyright infringement and then plead the contract in your defence.

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

If someone is concerned that WotC is going to breach a contractual obligation, they can seek an injunction to try and prevent that breach. Not every threatened breach of contract entitles the "victim" of that breach to be awarded an injunction - there are various technical rules that apply. But the key thing here is that there is no clear sign that I can see that WotC is proposing to breach its contractual obligations to anyone.

In the lawyer-PSA thread I did canvass a possible argument that, contrary to what WotC seems to want to do, existing parties to licensing agreements with WotC that are under the terms of the OGL v 1.0a may have an entitlement that WotC not rescinds its offer to license to them. I don't know if it's a good argument - eg I'm not sure if contract law in the relevant jurisdictions even acknowledges the possibility of an offer being on foot in circumstances where a contract based on the same offer has already come into existence. But it might be a basis on which an existing licensee could seek an injunction against WotC. But a 3PP would need pretty solid and sophisticated legal advice - thought through in much more detail than I am able to work through in a message board post - before commencing that sort of suit.

 

[pemerton]

Could there be a case for WotC's current actions alone amounting to tortious interference, with all the FUD? One guy on Twitter wrote that he had lost Patreon supporters over this debacle. There are Kickstarter projects in shambles right now, with backers leaving left and right.

Torts is not my field. But to me this sounds implausible and also perhaps impractical.

WotC's argument would presumably be that it is exercising its clear rights under a contract and in respect of its IP. Where a business relies upon an IP licence from another firm, I'm going to guess that the threshold is pretty high to establish that that others' firms exercise of its rights is tortious interference with the relationship between the (first-mentioned) business and its customers. It seems to me that those relationships were always vulnerable to the licensing firm exercising its rights. (Eg I'm thinking about what happened with MHRP when Marvel withdrew/did not renew the licence.)

And the argument against WotC would seem to be in the same general neighbourhood as an argument in defence of a suit from WotC for IP infringement. Which seems to me the more natural place to want to be for a 3PP - defending oneself against a lawsuit on fairly sound legal terrain, rather than commencing an ambitious lawsuit.

 

[demoss]

Here's the text of the CC-BY, the version that WotC is proposing to use for some of its content: https://creativecommons.org/licenses/by/3.0/legalcode.txt

That's 3.0, they're using 4.0.

Differences between versions: What's New in 4.0 - Creative Commons

Simplified summary of 4.0: Creative Commons — Attribution 4.0 International — CC BY 4.0

Full 4.0 legalese: Creative Commons — Attribution 4.0 International — CC BY 4.0