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My thoughts on the new OGL v1.2 draft
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<blockquote data-quote="pemerton" data-source="post: 8913229" data-attributes="member: 42582"><p>I don't think so. It's a well-established mode of contract formation in the common law: <a href="https://en.wikipedia.org/wiki/Carlill_v_Carbolic_Smoke_Ball_Co" target="_blank">Carlill v Carbolic Smoke Ball Co - Wikipedia</a></p><p></p><p>In legal reasoning, there are many methodologies for establishing intention, depending on the particular legal question being addressed.</p><p></p><p>"Agrees to enable to grant" is (i) not a synonym of "grants" and (ii) is not a technical legal notion.</p><p></p><p>In my post to which your replied I set out a technical legal analysis: each contributor (other than WotC) is contractually bound to offer a licence agreement on the terms set out in the OGL; and a party who takes up that offer (by using the offered OGC and thereby accepting the offer) both becomes bound to make an offer in the same terms, and is licensed to use the OGC including by licensing it to other parties. (These are the sub-licences that everyone is talking about.)</p><p></p><p>What do you mean by "issue"?</p><p></p><p>In my example in the post you quoted, WotC licenses X to B, who in turn licenses both X and Z to C. C enjoys a licence to use WotC's OGC X but that licence was not issued directly by WotC. Indeed, C may know nothing at all about WotC except that they are referenced in B's work (ie in the copyright statemen of the OGL, in section 9 of the licence, and in B's section 15 declaration). C's licence is granted by B, who have been authorised by WotC to license WotC's OGC (because B is licensed to "Use" that OGC, and "Use" includes "Distribute" and "Distribute" includes "license"). That is why it is being descibed as sub-licence.</p><p></p><p>"Authorized" is likewise not a technical term.</p><p></p><p>The only place in which that phrase appears, in the text of the OGL, is in section 9, which refers to "authorized versions" of the licence. The phrase appears in a sentence immediately following this sentence: "Wizards or its designated Agents may publish updated versions of this License." And the phrase is simply a shorthand way of referring to those updated versions published with appropriate authority ie by WotC or its agent.</p><p></p><p>If what you are asking is "Does B have permission to sub-license X to C?", then the answer depends. Everyone, including WotC, agrees that up until now the answer is Yes. Because that power is conferred by B's licence agreement with WotC, as I have described in this and my previous post.</p><p></p><p>Once WotC declares that it is no longer offering to license its SRD on the terms set out in the OGL v 1.0a (which it appears to be getting ready to do, based on the various documents released over the past few weeks), then there is a degree of legal uncertainty.</p><p></p><p>Some people appear to think that WotC enjoys a power under section 9 to unilaterally revoke all licences granted by it on the terms set out in any version of the licence that it has published. I don't think that they do enjoy such a power, even if one confines the analysis to the licence text. The only time I'm aware of that WotC appear to have adverted to such a power is in a leaked draft of an FAQ: <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8899300" target="_blank">OGL - Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a></p><p></p><p>As I posted upthread, in the post that prompted this exchange between us, I think there is a textual argument available to WotC that if they withdraw their offer to license their SRD on the terms of the OGL v 1.0a, then while all the contracts they and their sub-licensors have entered into remain on foot, the subject-matter of the licences granted evaporates. But that is not the only possible interpretation of the OGL. Hence, as I said, there is legal uncertainty.</p></blockquote><p></p>
[QUOTE="pemerton, post: 8913229, member: 42582"] I don't think so. It's a well-established mode of contract formation in the common law: [URL="https://en.wikipedia.org/wiki/Carlill_v_Carbolic_Smoke_Ball_Co"]Carlill v Carbolic Smoke Ball Co - Wikipedia[/URL] In legal reasoning, there are many methodologies for establishing intention, depending on the particular legal question being addressed. "Agrees to enable to grant" is (i) not a synonym of "grants" and (ii) is not a technical legal notion. In my post to which your replied I set out a technical legal analysis: each contributor (other than WotC) is contractually bound to offer a licence agreement on the terms set out in the OGL; and a party who takes up that offer (by using the offered OGC and thereby accepting the offer) both becomes bound to make an offer in the same terms, and is licensed to use the OGC including by licensing it to other parties. (These are the sub-licences that everyone is talking about.) What do you mean by "issue"? In my example in the post you quoted, WotC licenses X to B, who in turn licenses both X and Z to C. C enjoys a licence to use WotC's OGC X but that licence was not issued directly by WotC. Indeed, C may know nothing at all about WotC except that they are referenced in B's work (ie in the copyright statemen of the OGL, in section 9 of the licence, and in B's section 15 declaration). C's licence is granted by B, who have been authorised by WotC to license WotC's OGC (because B is licensed to "Use" that OGC, and "Use" includes "Distribute" and "Distribute" includes "license"). That is why it is being descibed as sub-licence. "Authorized" is likewise not a technical term. The only place in which that phrase appears, in the text of the OGL, is in section 9, which refers to "authorized versions" of the licence. The phrase appears in a sentence immediately following this sentence: "Wizards or its designated Agents may publish updated versions of this License." And the phrase is simply a shorthand way of referring to those updated versions published with appropriate authority ie by WotC or its agent. If what you are asking is "Does B have permission to sub-license X to C?", then the answer depends. Everyone, including WotC, agrees that up until now the answer is Yes. Because that power is conferred by B's licence agreement with WotC, as I have described in this and my previous post. Once WotC declares that it is no longer offering to license its SRD on the terms set out in the OGL v 1.0a (which it appears to be getting ready to do, based on the various documents released over the past few weeks), then there is a degree of legal uncertainty. Some people appear to think that WotC enjoys a power under section 9 to unilaterally revoke all licences granted by it on the terms set out in any version of the licence that it has published. I don't think that they do enjoy such a power, even if one confines the analysis to the licence text. The only time I'm aware of that WotC appear to have adverted to such a power is in a leaked draft of an FAQ: [URL="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8899300"]OGL - Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] As I posted upthread, in the post that prompted this exchange between us, I think there is a textual argument available to WotC that if they withdraw their offer to license their SRD on the terms of the OGL v 1.0a, then while all the contracts they and their sub-licensors have entered into remain on foot, the subject-matter of the licences granted evaporates. But that is not the only possible interpretation of the OGL. Hence, as I said, there is legal uncertainty. [/QUOTE]
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