OGL and ORC; A Marriage made in Heaven?

[Alzrius]

But I agree fully that the resuer is not in any contractual relationship with WotC.

So, to be clear, your position is that if someone violates a provision of the OGL, there's nothing WotC can do about it unless it's with regard to their content?

 

[pemerton]

So, to be clear, your position is that if someone violates a provision of the OGL, there's nothing WotC can do about it unless it's with regard to their content?

No.

My position on that particular matter is that if someone violates a term of a contract they have entered into with WotC, then WotC can sue for breach of contract. If the violation does not concern WotC's content, that will likely affect the remedy they get for the breach of the promise made to them to handle others' content in a particular way.

But what I said in the post to which you replied is that if I am in a contract with another party, and WotC is not a party to that contract, then the fact that the terms of our contract are as set out in the current OGL gives WotC no legal connection to our contract except for the ones that I set out.

You are reasoning as if WotC is a public authority and the OGL is a statute that both (i) establishes general legal norms and (ii) confers a general power of enforcement on WotC. But that is all wrong.

 

[Alzrius]

No.

My position on that particular matter is that if someone violates a term of a contract they have entered into with WotC, then WotC can sue for breach of contract. If the violation does not concern WotC's content, that will likely affect the remedy they get for the breach of the promise made to them to handle others' content in a particular way.

But what I said in the post to which you replied is that if I am in a contract with another party, and WotC is not a party to that contract, then the fact that the terms of our contract are as set out in the current OGL gives WotC no legal connection to our contract except for the ones that I set out.

You are reasoning as if WotC is a public authority and the OGL is a statute that both (i) establishes general legal norms and (ii) confers a general power of enforcement on WotC. But that is all wrong.

So how would that work with regard to the scenario I proposed earlier, wherein someone entered an original RPG under the OGL v1.0a, using no other Open Game Content from anyone (WotC included), and yet violated one or more provisions of the OGL in doing so (e.g. no declaration of Open Game Content)?

I ask because the premise of the discussion (as I understood it) was whether or not WotC can take action with regard to a breach of the OGL's terms, even if the nature of the breach didn't involve their (WotC's) content. Which is to say, if just entering something under the OGL isn't enough to be considered as having "entered into a contract with WotC," then who enforces the termination of the contract as outlined in Section 13? Could White Wolf (I think they're the other party) potentially bring a claim of violation against WotC for their incorrect use of the OGC in the 3.0 Monster Manual II that was used from the Creature Collection, as the MM2 is still being sold in PDF form?

 

[pemerton]

So how would that work with regard to the scenario I proposed earlier, wherein someone entered an original RPG under the OGL v1.0a, using no other Open Game Content from anyone (WotC included), and yet violated one or more provisions of the OGL in doing so (e.g. no declaration of Open Game Content)?

What do you mean "entered an original RPG under the OGL v 1.0a"?

Do you mean they offer to license their work on the terms set out in the text of the OGL v 1.0a? If they offer to do that, but have not actually stated what text they are offering to license (eg they don't explain what OGC they are putting forth), then their offer probably fails to be sufficiently certain to actually be amenable to acceptance.

They are not violating any provisions of anything, as at this point they are not in any legal relationship with anyone (other than the fact that they are reproducing some text - ie the OGL - that is copyright WotC).

I ask because the premise of the discussion (as I understood it) was whether or not WotC can take action with regard to a breach of the OGL's terms, even if the nature of the breach didn't involve their (WotC's) content.

That is a different question. Suppose that I publish a PF1 supplement, in which I use some of Paizo's product identity, and in which I name WotC a one of the contributors and copyright holders in my section 15. There's at least an argument that in this case I have breached a contract with WotC, because there's at least an argument that I have made a contractual promise to them not to use any contributor's PI. And I have broken that promise.

But if WotC were to sue me, what would their remedy be? It won't be the same as the remedy Paizo would get if they were to sue me.

On the other hand, suppose I publish a Mongoose Traveller supplement in which I use some of Mongoose's product identity. WotC can't sue me for that, as I have not made any contractual promise to them in relation to Mongoose's material.

if just entering something under the OGL isn't enough to be considered as having "entered into a contract with WotC," then who enforces the termination of the contract as outlined in Section 13?

Section 13 doesn't need to be enforced. It sets out a condition of automatic termination of a breaching party's contract.

Could White Wolf (I think they're the other party) potentially bring a claim of violation against WotC for their incorrect use of the OGL in the 3.0 Monster Manual II that was used from the Creature Collection, as the MM2 is still being sold in PDF form?

If WotC have used WW's OGC in their MMII, and are not conforming to the terms of their contractual promise to WW as set out in the OGL v 1.0/1.0a (whichever one is relevant), then yes, WW might have a cause of action against WotC for breach of contract and/or copyright infringement.

 

[gamerprinter]

Well as I stated on other threads, my next product, Arcane Armada, is a Spelljammer supplement I am releasing which will be published under One D&D license at the DM's Guild, so that one doesn't require OGL, since One D&D is a license unto itself. Many of my products were previously OGL 1.0a, but some of those products while published OGL doesn't have any OGC content in it, so I'm likely to drop the license from such products not needing a license at all (though it could be licensed under ORC, once that is available). 70% of my products are map sets and map symbol sets which are fully unlicenseable, and they never had a license. So I'll continue to create and publish, but I'll rely on One D&D and ORC, and I may not touch OGL of any version again.

 

[Alzrius]

What do you mean "entered an original RPG under the OGL v 1.0a"?

Do you mean they offer to license their work on the terms set out in the text of the OGL v 1.0a? If they offer to do that, but have not actually stated what text they are offering to license (eg they don't explain what OGC they are putting forth), then their offer probably fails to be sufficiently certain to actually be amenable to acceptance.

Would that hold true in all aspects of a potential breach of the terms of the OGL? For instance, if they were to properly declare what part of their work was Open Game Content, but didn't list a copyright notice for their own work in the Section 15 of the OGL, that's technically a failure to follow the terms of the license. So in that case, if they failed to correct that in thirty days, the license wouldn't terminate for them?

They are not violating any provisions of anything, as at this point they are not in any legal relationship with anyone (other than the fact that they are reproducing some text - ie the OGL - that is copyright WotC).

So if I'm understanding you correctly, using WotC's license isn't enough to enter into a contractual relationship with WotC? And as such, WotC has no standing to claim breach of contract if it doesn't involve their content?

That is a different question. Suppose that I publish a PF1 supplement, in which I use some of Paizo's product identity, and in which I name WotC a one of the contributors and copyright holders in my section 15. There's at least an argument that in this case I have breached a contract with WotC, because there's at least an argument that I have made a contractual promise to them not to use any contributor's PI. And I have broken that promise.

But if WotC were to sue me, what would their remedy be? It won't be the same as the remedy Paizo would get if they were to sue me.

I don't think grounds for a suit is necessarily what was being spoken about before. Rather, while the license does hold that termination occurs automatically within thirty days if a breach is found to have happened, there seems to be an expectation (perhaps mistakenly) that the party whose content was used in an OGL product where the breach occurred needs to take some sort of action in this manner.

If that's not the case, then I suppose the question is, doesn't that mean that the breaching party has already lost their right to use the OGL (once the thirty days has passed with no correction having taken place), as the license has terminated for them? In which case, WotC (based on the MM2 example posted above) has lost their right to post material under the OGL? (Though I suppose that might not be what "termination" entails, now that I think about it.)

 

[Matt Thomason]

If that's not the case, then I suppose the question is, doesn't that mean that the breaching party has already lost their right to use the OGL (once the thirty days has passed with no correction having taken place), as the license has terminated for them? In which case, WotC (based on the MM2 example posted above) has lost their right to post material under the OGL? (Though I suppose that might not be what "termination" entails, now that I think about it.)

Related to this, something that's bothered me for a while is this question:
Is there one single instance of the OGL license agreement between me and whichever party/parties involved, or one per work that I create using the OGL? Or one per work I reused? If the OGL for my Product A is terminated, does it apply to the OGL for my Product B? If Product A used SRD 3.0 while Product B used SRD 5.0, is it just my SRD 3.0 license that's terminated?

 

[pemerton]

Would that hold true in all aspects of a potential breach of the terms of the OGL? For instance, if they were to properly declare what part of their work was Open Game Content, but didn't list a copyright notice for their own work in the Section 15 of the OGL, that's technically a failure to follow the terms of the license. So in that case, if they failed to correct that in thirty days, the license wouldn't terminate for them?

What licence? In the scenario you describe, there is no licence, only an offer.

Again, the offer may fail for want of certainty, in so far as it tells prospective licensees to replicate a section 15 statement that doesn't exist. Alternatively, it may be that the absence of a section 15 statement by the licensor means that their licensees can trivially comply with their section 6 obligation.

So if I'm understanding you correctly, using WotC's license isn't enough to enter into a contractual relationship with WotC? And as such, WotC has no standing to claim breach of contract if it doesn't involve their content.

More or less. You use the phrase "WotC's licence". But this is ambiguous, and you're not really disambiguating it.

Let's suppose that I purchase a car, that was built by Toyota. In one way of speaking the car is Toyota's - they designed it, built and probably own intellectual property rights in respect of various features and/or components of it. In another way of speaking the car is mine - I own it as a piece of personal, tangible property (in Australian law we call it a chattel or a chose in possession - I suspect the same terminology is used in US law).

Talking about WotC's licence can refer to a piece of text in which they own the copyright. It can also refer to a licence agreement to which they are a party. If enter into a licensing contract with you using (i), that does not make WotC a party to my contract with you. I mean, you could set up a webforum and copy your terms of service from the ones that ENworld uses. You could even call your forum "ENworld". Morrus might have claims against you for copyright and/or trademark infringement. But he would not have any power to change the legal relationship between you and your forum members.

while the license does hold that termination occurs automatically within thirty days if a breach is found to have happened, there seems to be an expectation (perhaps mistakenly) that the party whose content was used in an OGL product where the breach occurred needs to take some sort of action in this manner.

Who holds that expectation?

If that's not the case, then I suppose the question is, doesn't that mean that the breaching party has already lost their right to use the OGL (once the thirty days has passed with no correction having taken place), as the license has terminated for them? In which case, WotC (based on the MM2 example posted above) has lost their right to post material under the OGL?

You are still treating the OGL as a statute, rather than a written set of terms that two parties can adopt for the purposes of entering in a contract with one another.

If WotC's licence from WW terminated for breach, then that might expose it to a lawsuit from WW (eg for copyright infringement; perhaps also for breach of contract). That would not affect WotC's power to enter into new contracts with WW, nor its power to enter into contracts with anyone else; nor the terms of any of those contracts.

 

[pemerton]

Is there one single instance of the OGL license agreement between me and whichever party/parties involved, or one per work that I create using the OGL? Or one per work I reused? If the OGL for my Product A is terminated, does it apply to the OGL for my Product B? If Product A used SRD 3.0 while Product B used SRD 5.0, is it just my SRD 3.0 license that's terminated?

I don't think the answer to this is straightforward.

Likewise, when B sub-licences A's OGC to C, is C in a contract with A? Ten years ago I thought not, but now I'm inclined to think "probably".

On your question: the subject matter of the licence - as per section 4 - is the Open Game Content. But the reference of that phrase is not clear, as per my recent posts on the lawyer-PSA thread.

 

[Alzrius]

What licence? In the scenario you describe, there is no licence, only an offer.

Okay, I think we're getting down to the crux of the issue, here. Section 3 states that you accept the terms of the OGL (which sounds like acceptance of an offer, as per that Section's title "Offer and Acceptance") if you use Open Game Content. And while 1(g) defines "use" as including the use of "Derivative Material of Open Game Content," 1(b) holds that "Derivative Material" means copyrighted material, which would be the case for the Open Game Content in the scenario I described above (i.e. where someone created an original RPG, using no Open Game Content from anyone else, and published it as per the terms of the OGL, breach notwithstanding). While 1(b) goes on to say that copyrighted material includes derivative works and translations, it doesn't say it's limited to those things, so in that sense the use of "Derivative Material" seems to include original copyrighted material (as counterintuitive as that seems). So creating original Open Game Content (which you designate as such) of your own would count in that regard.

To that extent, doesn't that mean that there is a license, as per Section 3? And if so, wouldn't that be with WotC?

You are still treating the OGL as a statute, rather than a written set of terms that two parties can adopt for the purposes of entering in a contract with one another.

If WotC's licence from WW terminated for breach, then that might expose it to a lawsuit from WW (eg for copyright infringement; perhaps also for breach of contract). That would not affect WotC's power to enter into new contracts with WW, nor its power to enter into contracts with anyone else; nor the terms of any of those contracts.

So, presuming I'm understanding you correctly, a breach of the OGL essentially does nothing unto itself, but rather opens the breaching party up to possible litigation...not from the owner of the OGL (i.e. Hasbro), but from other entities whose Open Game Content is used in the breaching product (provided it's not corrected within thirty days)? Given that, what's the practical aspect of "termination" of the License for a breaching party?

 

[pemerton]

Okay, I think we're getting down to the crux of the issue, here. Section 3 states that you accept the terms of the OGL (which sounds like acceptance of an offer) if you use Open Game Content.

No it doesn't. It says that "By Using the Open Game Content You indicate Your acceptance of the terms of this License."

The phrase "the Open Gaming Content" (emphasis added) fairly clearly refers to the content that the offeror has designated, in their offer, as OGC.

So, presuming I'm understanding you correctly, a breach of the OGL essentially does nothing unto itself, but rather opens the breaching party up to possible litigation...not from the owner of the OGL (i.e. Hasbro), but from other entities whose Open Game Content is used in the breaching product (provided it's not corrected within thirty days)? Given that, what's the practical aspect of "termination" of the License for a breaching party?

If the licence terminates then the licensee forfeits the legal powers and permissions they enjoyed under the licence. This includes the permission to use the licensor's copyrighted work. So the licensee might find themself infringing the licensor's copyright. I wouldn't describe that as "essentially nothing unto itself". That's what private law instruments do - they establish and define the legal relationships between those who are party to them.

 

[Alzrius]

No it doesn't. It says that "By Using the Open Game Content You indicate Your acceptance of the terms of this License."

The phrase "the Open Gaming Content" (emphasis added) fairly clearly refers to the content that the offeror has designated, in their offer, as OGC.

Right, but that section is "Offer and Acceptance," which makes it sound like Using (which as per Section 1(g) includes creating Derivative Material, which as per Section 1(b) seems to indicate includes copyrighted material that wasn't preexisting, and so includes Open Game Content original to that work as per Section 8), Open Game Content indicates acceptance of an offer implicit in the OGL itself. You're saying that's not correct?

 

[pemerton]

Right, but that section is "Offer and Acceptance," which makes it sound like Using (which as per Section 1(g) includes creating Derivative Material, which as per Section 1(b) seems to indicate includes copyrighted material that wasn't preexisting, and so includes Open Game Material original to that work as per Section 8), Open Game Content indicates acceptance of an offer implicit in the OGL itself. You're saying that's not correct?

I'm not sure I follow.

If I publish a work that contains material that is derivative of the 5e SRD, and if the bit of that SRD that my material is derivative of is OGC as per the statement in that SRD that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License", then I have accepted WotC's offer to licence that OGC to me and to permit me to use it, including by publishing material that is derivative of it.

That does not put me into a contractual relationship with Evil Hat.

If I publish a work that contains material that is derivative of the Evil Hate Fate Core SRD, and if the bit of that SRD that my material is derivative of is OGC as per the statement in that SRD that "All content in this document is considered open content", then I have accepted Evil Hat's offer to licence that OGC to me and to permit me to use it, including by publishing material that is derivative of it.

That does not put me into a contractual relationship with WotC.

 

[Alzrius]

I'm not sure I follow.

Let me try again, breaking this down into the individual points that I'm raising:

1) The title of Section 3 is "Offer and Acceptance." This seems to imply that the OGL as written contains an offer.

2) The rest of Section 3 reads, "By Using the Open Game Content You indicate Your acceptance of the terms of this License." This seems to state how one accepts the aforementioned offer.

3) More specifically, you accept the offer by "Using" the Open Game Content.

4) "Using" is defined in Section 1(g) as, "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content." So creating Derivative Material that didn't previously exist counts as Usage.

5) Compounding this, Section 1(b) defines "Derivative Material" as "copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted." Because this says "including derivative works [et al]" rather than "only derivative works" (or something similar), that seems to suggest that it doesn't have to be only derivative works of copyrighted material; any copyrighted material will do, including original material.

6) As such, "Derivative Material" of Open Game Content includes original Open Game Content (as counterintuitive as that sounds).

7) Hence, creating original work which is subsequently released as Open Game Content (and identified as such per Section 8) under the Open Game License constitutes acceptance of the offer mentioned in the title of Section 3.

8) This holds true even if no Open Game Content from any other OGL product is used in your OGL product (in which case the only things in your Section 15 are your product's copyright notice and the OGL copyright notice).

9) With all of that determined, the only question left is who made the offer which you're accepting. I'm not sure there's any other answer than WotC.

Hopefully that makes what I'm trying to outline clearer.

 

[pemerton]

Let me try again, breaking this down into the individual points that I'm raising:

1) The title of Section 3 is "Offer and Acceptance." This seems to imply that the OGL as written contains an offer.

Not quite. When a person who owns some copyrighted text offers to licence that text to all the world on the terms of the OGL, then section 3 sets out the basis on which acceptance of that offer can occur.

The offer is made by the owner of the copyright in the OGC. The acceptance occurs upon using that OGC with the intention, in doing so, to enter into the licence agreement. (There can be technical questions about whether "intention" is quite the right concept, and exactly how it is established, but I don't think they matter to this discussion.)

2) The rest of Section 3 reads, "By Using the Open Game Content You indicate Your acceptance of the terms of this License." This seems to state how one accepts the aforementioned offer.

3) More specifically, you accept the offer by "Using" the Open Game Content.

4) "Using" is defined in Section 1(g) as, "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content." So creating Derivative Material that didn't previously exist counts as Usage.

You haven't considered which OGC must be used to constitute acceptance of the offer; nor who the offer is coming from and hence who the contract arises between.

5) Compounding this, Section 1(b) defines "Derivative Material" as "copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted." Because this says "including derivative works [et al]" rather than "only derivative works" (or something similar), that seems to suggest that it doesn't have to be only derivative works of copyrighted material; any copyrighted material will do, including original material.

6) As such, "Derivative Material" of Open Game Content includes original Open Game Content (as counterintuitive as that sounds).

What you say here about the interpretation of section 1(b) does not seem very plausible. The reason for mentioning "copyrighted material" is to make clear that material in which copyright is not or cannot be enjoyed (perhaps because it is in the public domain) is not capable of being OGC. Of necessity, OGC is content in which someone owns the copyright.

But in any event, it doesn't matter. Using OGC includes both reproducing that content, or publishing content that is derivative of it. Either thing is sufficient to accept the contract.

7) Hence, creating original work which is subsequently released as Open Game Content (and identified as such per Section 8) under the Open Game License constitutes acceptance of the offer mentioned in the title of Section 3.

This is not the case. When Mongoose or Evil Hat publish their SRDs and offer to the world to license them on the terms set out in the OGL, they are not using any of the OGC in respect of which WotC made an offer. They do not enter into any legal relationship with WotC except as I set out above: (i) they are obliging their licensees to reproduce, under certain circumstances, text in which WotC claims the copyright; and (ii) they are conferring a permission on their licensees to use their OGC not only under the terms of the OGL v 1.0/1.0a, but any other version of the licence that WotC might publish pursuant to section 9.

Hopefully that makes what I'm trying to outline clearer.

Your analysis is mistaken for the reasons I've set out.

 

[gweinel]

If ORC acts as an umbrella for different game systems that means that as a creator you can use mechanics and rules from every system you want? For example could you use a mechanic that you found in Paizo's SRD and a mechanic from Chaosium's SRD and put these in your product?

 

[Alzrius]

Your analysis is mistaken for the reasons I've set out.

Thanks for taking the time to critique my flawed interpretation; I appreciate the insights.

 

[glass]

If ORC acts as an umbrella for different game systems that means that as a creator you can use mechanics and rules from every system you want? For example could you use a mechanic that you found in Paizo's SRD and a mechanic from Chaosium's SRD and put these in your product?

The licence has not been written yet, but presumably.