The OGL 1.1 is not an Open License

[pemerton]

Since the license can be revoked (according to him, not in reality) of access, not because this somehow means WotC managed to retract the license

The licence is not revocable once entered into. But that's different from ceasing to make the offer.

You've not read my posts very carefully.

 

[pemerton]

So, if you don't mind entertaining a series of increasingly deranged hypotheticals, here's a question that just occurred to me: Can licensees and sub-licensees withdraw their offers? And if not, who has standing to sue them over it?

In other words: Let's say I take you up during the window when you are licensing the Pemerton SRD, use some of it in Dausuul's Tome of Internet Arguments, and start selling copies. If I'm reading you right, I have now entered into a contract with you. Part of that contract is that I have to make the same offer: I have to identify your Open Game Content in the DToIA and allow anyone else to do what I did.

If I tried to withdraw that offer, I assume I would then be in breach of my contract with you, and you could sue me, right?

I think I agree with you up to this point. (And I'm now reading on.)

Of course, if you were trying to claw back the Pemerton SRD from the OGL, you wouldn't want to do that. But until and unless a statute of limitations comes into play, I face the risk that you could change your mind. We'd have to mutually agree to modify our contract. Can we even do that given the terms of the OGL?

I think all the parties to the licence agreement could agree to change it. In your scenario that's you and me. At which point, I think your standing offer to third parties would lapse.

But suppose we haven't actually entered into our mutual variation yet, and someone takes up your standing offer. My feeling is that, at that earlier point, you can't argue that you have withdrawn your offer in breach of your contractual obligation to me. This is because I don't think you can rely, in a legal argument, on your intention to depart from your own legal obligations.

If US contract law were actually more libertarian than my intuitions are, though, I wouldn't be completely surprised.

And if someone else takes me up on my offer, they too must extend the same offer to others. If they then withdraw the offer, can I sue them for it? Or do you remain the only person who can sue anybody over the Pemerton SRD at any point in the chain?

You could sue them, as they have entered into a contract with you. Perhaps I can also sue them - see my post not too far upthread mentioning agency and privity, where (citing @S'mon) I suggest that when someone enters into the contract directly with you they might, thereby, also enter into a contract with me (mediated by you in some technical fashion).

And at that point, the number of parties who need to come on board in order to vary all the interlocking contracts gets bigger. (And messier!)

 

[pemerton]

So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here if any?

Sorry incomplete hypothetical, Joe shares the modification of the MF RPG AFTER Wizards withdraws the offer. And also Joe basically doesn't do much on-line. He just happened to buy my book at North Texas Con. The same with Steve.

Keep in mind if we accept @pemerton conclusion. The OGL explicitly grants me the right to distribute the content I have modified in section 10. Th


So how is Joe or Steve supposed to know that Wizard's withdrew their offer? That is the question I am posing here. There is a logical problem with @pemerton argument. OK Wizards offered the d20 SRD under the OGL, OK they withdraw it, OK I get to keep using. But then I can only use the rights I was granted if I distribute the copy of the OGL with work. Which say that person who get my work can also share it and modify provided that one of the things they do is bundle a OGL with the work.

See the problem with the logical implications of @pemerton 's arguments?

As a historical note, the original author of open source licenses like the GPL deliberately designed it this way. That if you contribute content it is truly perpetual.

I think these questions have been answered in further posts. (See eg my reply to @Dausuul just upthread.)

WotC withdrawing their offer doesn't affect the existing licence agreement with Matt Finch, nor your rights obtained against WotC and against Matt Finch in virtue of you entering into the OGL when you author Majestic Fantasy.

If all Joe and Steve are doing is buying copies of your game and using it to play a RPG, I don't think they are parties to the OGL at all, with anyone. But if Joe makes and distributes modifications, and so is a publisher as well as a player, then Joe has entered into a licence agreement which gives rights against you, against Matt Finch and against WotC.

 

[FrogReaver]

Whether an offer is still in play or not is a pretty contextual matter. In the abstract, all that has to happen is that you cease to make it. But what does that consist in, in the practical circumstances of a given transaction?

It is my belief that they have no way to cease making the offer as everytime a licensee places a copy of the 5.1 SRD on the internet WOTC's offer in the 1.0 OGL gets remade. Since WOTC mandated their licensees via OGL 1.0 to attach OGL 1.0 to all OGC and OGL 1.0 includes the license offer with WOTC and acceptance criteria then effectively WOTC has mandated that their OGL 1.0 offer continually and perpetually be made. It's hard to see how WOTC can say they are ending OGL 1.0 for everything going forward when they don't have the power to end their current OGL licences that force that offer to be made repeatedly. Legally in the U.S. they 'should' lose in court if their only argument was that they can end their offer to a license at anytime, because while they normally could, due to the specifics here they actually set themselves up to be unable to for this particular license.

In the U.S. the right to rescind an offer isn't absolute. It doesn't trump all the other particulars.

Like, you're at the supermarket telling the checkout person that you want to buy the packet of flour in your hand, and then you notice its 1 kg and you need 1.5 kg - at what point between handing it to the person, and changing your mind, can you retract your offer to transact with the supermarket? At what point have they accepted your offer and so it can't be withdrawn? A lot of the time it's hard to draw a bright line.

Part of the logic of something like a public auction is to make the bright line as clear as possible.

Different situations different facts. The fact is WOTC mandates it's OGL 1.0 licensees to reproduce the OGL 1.0 for all OGC. Part of the OGL 1.0 includes the license offer and acceptance criteria.

In WotC's case, with respect to their offer to the all the world to license the SRD, they could withdraw the offer from their website. They could make a public statement to the effect that the offer is withdrawn. (See also @S'mon's post 295 upthread.)

See above.

 

[pemerton]

You say "...everyone who has [already] entered into the licence..." - what about those who have not yet entered into the licence, who as yet have no relations of any kind with WotC other than having purchased some of their products?

This is what I mean when I say get in before the lock - if by the time 1.1 comes out you're not already using 1.0 or 1.0a and they decide to revoke 1.0a (which would, I presume, drag 1.0 down with it) you would seem to be stuck with 1.1.

All you would need to do is find someone else who did get in before the lock - eg a hypertext SRD publisher - and enter into the OGL with them. As I've posted a few times, I think the main practical significance of this is it changes what you have to put in your section 15 declaration.

EDIT: Ninja'd by @Dausuul post 353.

 

[FrogReaver]

All you would need to do is find someone else who did get in before the lock - eg a hypertext SRD publisher - and enter into the OGL with them. As I've posted a few times, I think the main practical significance of this is it changes what you have to put in your section 15 declaration.

One addendum - Only the Copyright holders go in section 15. So if you essentially just distributed the SRD 5.1 content then WOTC would still need to be placed in section 15. If you also contributed OGC and appended it to the end then you would also need to list yourself in section 15, along with WOTC.

 

[pemerton]

In regards to who is licensing the work -

The OGL 1.0 in section 4 says the "the contributors grant you a pretextual license...". In section 1 Contributors are defined as "copyright and/or trademark owners who have contributed Open Game Content." In section 15 WOTC is indicated as the copyright holder of the SRD 5.1.

However, is section 13 it says that sublicenses shall survive the termination of this license.

To me it sounds like the license would be with WOTC and not non-affiliated party that chose to distribute the 5.1 SRD under the OGL 1.0. But I could be wrong as it's not clear what is meant by sublicenses to me.

Anyone have thoughts on this?

I think the termination thing is a red herring. That's referring to termination for breach, and the basic idea is that if (say) I breach in my Pemerton SRD, and hence lose the licence, that doesn't affect @Dausuul's rights to use OGC in his Tome of Internet Arguments that cites the Pemerton SRD in its section 15. The idea is to insulate people downstream from breaks in the chain.

With that aside:

What you've identified is the difference between how the contract is formed and what the contract licenses. Suppose that you publish a PF-compatible book, relying on the OGL to create a contractual relationship between you an Paizo. Well, you have probably now also entered into a contract with WotC, albeit indirectly (see a few posts not too far upthread). And you have definitely obtained rights as licensee against WotC as licensor - because in WotC's agreement with Paizo they conferred on Paizo (via the OGL) the capacity to further license the OGL to new parties, like you.

So you have a licence from both WotC and from Paizo. I believe you'd be obliged to cite both in your section 15 declaration, in order to comply with your own contractual obligations.

 

[mamba]

You've not read my posts very carefully.

I was sloppy with my terminology, I understand that according to you they can stop offering the license but not revoke the license of anyone who entered into an agreement by then.

I am disputing that they can stop offering it at all, or rather that them no longer offering it on their site has any impact whatsoever on anyone wanting to enter into the agreement after that point because the license and material are freely available elsewhere.

As long as that material (SRD under OGL 1.0a) is available anywhere, a third party can still enter into that agreement.

 

[pemerton]

One addendum - Only the Copyright holders go in section 15. So if you essentially just distributed the SRD 5.1 content then WOTC would still need to be placed in section 15. If you also contributed OGC and appended it to the end then you would also need to list yourself in section 15, along with WOTC.

Yes. Section 6 of the OGL says:

You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder’s name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute.​

If you are taking OGC from Dan, or from the hypertext SRD, or whatever, I think they will typically have added themselves to the notice. See eg: Legal Information :: 5e.d20srd.org.

And so I think you'd have to name them, in your section 15, even if everything you're taking from them is stuff that - under different circumstances - you could take straight from the SRD iteslf.

 

[pemerton]

It is my belief that they have no way to cease making the offer as everytime a licensee places a copy of the 5.1 SRD on the internet WOTC's offer in the 1.0 OGL gets remade. Since WOTC mandated their licensees via OGL 1.0 to attach OGL 1.0 to all OGC and OGL 1.0 includes the license offer with WOTC and acceptance criteria then effectively WOTC has mandated that their OGL 1.0 offer continually and perpetually be made. It's hard to see how WOTC can say they are ending OGL 1.0 for everything going forward when they don't have the power to end their current OGL licences that force that offer to be made repeatedly. Legally in the U.S. they 'should' lose in court if their only argument was that they can end their offer to a license at anytime, because while they normally could, due to the specifics here they actually set themselves up to be unable to for this particular license.

In the U.S. the right to rescind an offer isn't absolute. It doesn't trump all the other particulars.

If I've read you correctly, you're arguing that everyone who is licensed by WotC under the OGL v 1.0/1.0a has also, and irrevocably, been made an agent of WotC able to make offers on WotC's behalf in respect of the SRD.

That's an interesting argument. It replies to my question, way upthread, as to what is the legal argument that the offer can't be rescinded.

I don't think I agree with it, as I think the OGL permits the non-WotC party to sub-license the SRD but I don't think it otherwise makes the non-WotC party an agent. (The only reference to agents is to agents of WotC in clause 9. Of course that's not definitive in resolving the question of construction.) But I could be wrong.