D&D (2024) What's Irrevocable Anyway?

Contract law recently reared its head to remind us that people are relying on some agreements that remain largely untested in a court of law ... only for it to end up under creative commons after all of that.

Contract law recently reared its head to remind us that people are relying on some agreements that remain largely untested in a court of law ... only for it to end up under creative commons after all of that.

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Picture courtesy of Pixabay.

It has been an intense couple of weeks hasn’t it? There’s some basics of contract law that this piece will assume you are familiar with, and as the dust clears we can use this as an educational opportunity to look at contracts. I'm not a lawyer, and no information included herein should be construed as legal advice.

The Definition of Irrevocable​

As covered elsewhere, the term’s use in a legal sense is a relatively new phenomena. It often comes up in licenses like creative commons as a way to establish that the intent of the agreement is for it to last for an infinite amount of time, and for the regular course of business should not result in any changes to this.

That doesn’t mean the contract cannot be revoked, nor does it mean that simply including the term irrevocable will magically make the contract unable to be changed or ended. Terms that would constitute a breach of the contract would result in the termination of an agreement even if said agreement was termed irrevocable. If an irrevocable license, for example, had a term that the color orange would never be used in conjunction with the licensed material, using orange would result in a justifiable termination of the contract for breach.

The question arises as to why the term irrevocable was added to a large number of the licenses for software in relatively recent history. The history is complicated as some lawyers have suggested that the term may be unnecessary or imprecise. There’s even a tendency for terms to sometimes be added because they sound good even if they don’t work the way that they may have been intended. It may be for the purpose of making the proffering of the license itself to be irrevocable instead of (or in addition to) the agreement specifically.

Can You Change It?​

As we saw from some of the draft versions of the OGL, the license was sometimes paired with an assertion that it could be a contract that can be unilaterally changed by one side without the other party having any say in the matter. This may have other problems with its creation. From Ian Literovich, a lawyer at Karp Litigation:
...in the absence of [an amendment provision], what is the power of a single party to unilaterally change the terms? And if one party can make the entire contract into playdough at a moment’s notice, it could be that the agreement fails because it doesn’t have clear terms.
Further, there are times when the courts will step in to address power imbalances and other problems in a contract. Sometimes, saying “‘it’s unfair’ can move judges to act,” says Literovich. A common circumstance when the court will intervene is when one party lacks capacity, the legal term for whether a person is capable of understanding and agreeing to a contract. A court would probably step in and point out a newborn isn’t really capable of agreeing to anything, as an extreme.

As you can see, irrevocable does not, strictly speaking, mean irrevocable when used in a legal sense. Law has its own form of jargon and terms of phrase, just like game design, and you should rely on a lawyer or other legal expert whenever possible.
 

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Wepwawet

Explorer
IANAL but attempting to revoke an "irrevocable" license also has the highly desirable effect of getting everyone talking about it, with all the increased traffic to the websites where it's being talked about 😄

I have to say, I hadn't been following much of what happens in D&D and rarely came to ENWorld, but with the OGL controversy i was refreshing my browser every 5 minutes looking for developments :LOL:
 

Snarf Zagyg

Notorious Liquefactionist
Supporter
This is ... something. If people take only one thing from this, I hope that it is that issues are complicated- and that if you've heard someone say, "I know that a Court would decide X on the OGL because of REASONS," you should take that assertion not with a grain, but with a pound of salt.

That said, a few brief corrections-
1. It often comes up in licenses like creative commons as a way to establish that the intent of the agreement is for it to last for an infinite amount of time, and for the regular course of business should not result in any changes to this.

No. Irrevocable isn't about the term (duration) of the license, it's about the ability of the offeror (licensor) to revoke the offer during the term. This is an important distinction.

2. Further, there are times when the courts will step in to address power imbalances and other problems in a contract. Sometimes, saying “‘it’s unfair’ can move judges to act,” says Literovich. A common circumstance when the court will intervene is when one party lacks capacity, the legal term for whether a person is capable of understanding and agreeing to a contract. A court would probably step in and point out a newborn isn’t really capable of agreeing to anything, as an extreme.

Two different things are being confused here- "unfair" contracts (such as some contracts of adhesion) are one issue; for various reasons, courts in the United States generally no longer are too concerned about mere unfairness. The term is unconscionability, and that's a really tough argument in the US since, oh, the 80s. Yeah- the 80s. But that's not the same as "capacity," which is the ability of a party to form the contract.
 


Nylanfs

Adventurer
I'll say this much all this focus around the game table on contract language and how it can be interpreted brings me back to the good old days of 1e and spending three hours writing the verbiage of you Wish so the DM didn't Monkey Paw you.
PC's:<Creates an ironclad Wish document>
DM: Fun fact, the entity granting the wish hasn't interacted with the world for more than 500 years, and there's been some linguistic shifts and word definition changes ...
 



I wonder if a 'better' move legally would be to add a section into a contract specifying what 'irrevocable' is understood to mean in the particular matter at hand. I know people dealing in law generally like clarity and aren't afraid of wordiness - would this be a better move, so there is a clear record of the intent of the agreement?
 

ValamirCleaver

Ein Jäger aus Kurpfalz
I wonder if a 'better' move legally would be to add a section into a contract specifying what 'irrevocable' is understood to mean in the particular matter at hand. I know people dealing in law generally like clarity and aren't afraid of wordiness - would this be a better move, so there is a clear record of the intent of the agreement?
I think that plus releasing the 3.0, 3.5 & Modern SRDs into the CC would go a long to reassuring those that still have misgivings regarding this whole "de-authorize" fiasco. It definitely would for me, but it would have to be all these in toto.
 

I think that plus releasing the 3.0, 3.5 & Modern SRDs into the CC would go a long to reassuring those that still have misgivings regarding this whole "de-authorize" fiasco. It definitely would for me, but it would have to be all these in toto.
Agreed. And while doing so, basically putting any 'legacy' content or mechanics into CC, while openly communicating that going forward from that point to not have the expectation it will happen again and that anything else they decide to add to the CC will be a treat, not the expectation of business. Again, looking back at this, I find it very interesting that no one has said anything about other publishers who don't do ANY open content - I understand the reasons why this fiasco happened, but Steve Jackson Games has it very clearly in their FAQ about none of GURPS being open even in regards to computer software. I'm kind of curious when that got added - whether it is a recent action, or if it has been in there back since Fallout converted from GURPS to SPECIAL.
 

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