Alzrius
The EN World kitten
I thought someone else on here mentioned that it was this one, but I'm not sure:
OGL 1.1... quote the lawyers (and link)
That piece was very funny!I do not know case names, but back in 2003, SCO Group was challenging the legality of the GPL, in a suit against IBM. SCO had signed on to the license, then tried to sue IBM for copyright infringement. over it.
I thought someone else on here mentioned that it was this one, but I'm not sure:
Jacobsen v. Katzer - Wikipedia
en.wikipedia.org
I've been told in the thread it wasn't about that, though. But I'll check, thanks.
I just found this below on LexisNexis UK - quoted for the purposes of Criticism. Most important parts bolded. From BMS Computer Solutions v AB Agri it looks to me that the revocability of a Perpetual licence depends heavily on the circumstances, as I thought.
_______________________________________
The word ‘perpetual’ in a software licence can have different shades of meaning depending on the circumstances. It could mean:
Where a perpetual licence includes an obligation to support and maintain the software in perpetuity, there is no implied right for the supplier to terminate. It is essential that the right to terminate is specified in the agreement.
_______________________________________
‘Perpetual’ licences
Never ending or of indefinite duration?
The word ‘perpetual’ in a software licence can have different shades of meaning depending on the circumstances. It could mean:
- •
never ending, ie incapable of being bought to an end, or - •
operating without a specific limit of time (ie of indefinite duration) but still ultimately terminable
- •
the variation agreement was not intended to wholly displace the earlier licence agreement, which meant the original termination provisions survived the variation. The licence had simply been varied from being one of limited (ten-year) duration to being of indefinite duration. The use of the word ‘perpetual’ did not implicitly terminate earlier termination provisions, and - •
there was clearly a continued commercial need for the termination provisions in the licence agreement to continue, otherwise there was no way of bringing potentially onerous obligations in that agreement (eg reporting obligations) to an end
Where a perpetual licence includes an obligation to support and maintain the software in perpetuity, there is no implied right for the supplier to terminate. It is essential that the right to terminate is specified in the agreement.
Xethreau
Josh Gentry - Author, Minister in Training
And the OGL does specify a right to terminate. But as is said in the letter on behalf of Sad Fishe Games, The license can only be terminated in cases of IP infractions!
Henadic Theologian
Legend
I teach commercial IP & Contract in England. I am not a practicing lawyer, I do not have a legal practice qualification. I contributed to this thread Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
Apart from the OP there's (I believe) Snarf Zagyg Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Mistwell Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
There's Steelwind Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Pemerton Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.
This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).
It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which is expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." I dont see any argument there is not an offer and acceptance. Sec 4 of the OGL recites the consideration for the agreement: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that WOTC is the party specifying the consideration. More generalky, usage of contract terms like offer, acceptance and consideration by WOTC demonstrates an intent to form an agreement with the licensee. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.
So long as an agreement is not illegal, a party cannot unilaterally terminate an agreement except to the extent that the agreement permits them to terminate the agreement. The sole statement relating to termination in the OGL is Sec 13 which states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."
The commentary to-date revolves around Sec 9 which states "Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation. First, a principle of contract interpretation is "expresio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement. Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.
Finally, aside from the contractual analysis there are equitable doctrines that make additional difficulties if WOTC advanced this claim. For example, there is a doctrine called "detrimental reliance" that says, even in the absence of a contract, if one person induces another person to change their position in reliance on a statement by the first person, the second person can reasonably rely on the statement. The WOTC Q&A by itself could support a claim for detrimental reliance. Other equitable doctrines such as "laches" and "unclean hands" would prevent WOTC from enforcing the OGL is they waited too long to enforce or acted inequitably. Again, the public statements by WOTC and its representatives would support a claim under equitable doctrines.
There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.
None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR
Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O
Okay this seems like the winning arguement.
I found a discussion of why the GPLv2, which does not contain the word "irrevocable" still turned out to be so - it is along the same lines as what S'mon has posted.
Greg Benage
Legend
The article was informative, but I nearly spit out my Diet Coke at this part:
Wizards: No naughty word, buddy.
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