Reading 1.1 legalese

[Enrahim2]

There are already some threads discussing the release of claimed full text version of the OGL-1.1. Those I have seen have so far focused on discussing the validity of the document, and continued speculating around the consequences. These are fine discussions, but I wanted to make a thread for trying to make a more deep dive into the legal formulations that we now have. What I am curious about is things like if there are some non-obvious meanings or pitfalls that might not be obvious to the lay person; if there are things that might seem weird but is indeed quite common; or if there are anything that seem unusual/nonsensical (preferably beyond the already much discussed "no longer an authorized version"

I am not a lawyer, but I still have some thoughts that I hope to share soon, but want to get this thread started in case others also are burning to talk about this angle of the new developments.

 

[Ruin Explorer]

The legalese has been discussed pretty extensively. The most important parts of it were in the previous leaks. Deauthorization and its legality has been one of the central discussions (TLDR: no-one is sure). I'm not saying shut your thread down but it does seem unnecessary.

 

[Cadence]

The legalese has been discussed pretty extensively. The most important parts of it were in the previous leaks. Deauthorization has been one of the central discussions. I'm not saying shut your thread down but it does seem unnecessary.

The part that floored me was where they could make you pick up their legal fees for defending you if they thought you weren't doing it well enough. Is that a thing that shows up in other licenses?

 

[Enrahim2]

One thing that strike me is the clear seperation between 3 kinds of content: "Licensed Content" "Unlicensed Content" and "Licensed Work". These seem to be attempted defined as "keywords" with a much more specific meaning than what you would think of from "everyday" language. For instance "Licensed Content" and "Unlicensed Content" is not complimentary in the space of all "content" but rather in a more weakly defined space of WotC content.

When I say weakly defined I want to point to the missing "all", and the "includes" formulations that if all had been implied seem redundant from a legal standpoint.

Is this kind of definitions of terms that seem highly relevant for the subject matter away from a more common understanding of the terms common?

As a side note to that - in a comment Licensed Content is associated with the old term "Open Game Content" from the "old OGL". As this is outside the legal terms of the contract, do this still have any modulating effect on the actual legal interpretation of the definition in the definitions in section I. As those terms seem to be weaker defined than the corresponding 1.0a terms.

 

[Ruin Explorer]

These seem to be attempted defined as "keywords" with a much more specific meaning than what you would think of from "everyday" language.

Buddy. Dude.

No.

They're called Definitions.

It's a something that legal documents have done for centuries. Possibly millennia. They're such a basic concept it's actually quite hard to find a good explanation.

Is this kind of definitions of terms that seem highly relevant for the subject matter away from a more common understanding of the terms common?

Absolutely yes. Have you... never read a contract?

As a side note to that - in a comment Licensed Content is associated with the old term "Open Game Content" from the "old OGL". As this is outside the legal terms of the contract, do this still have any modulating effect on the actual legal interpretation of the definition in the definitions in section I. As those terms seem to be weaker defined than the corresponding 1.0a terms.

The comments have no real legal strength though they might end up being discussed in court in terms of intent or the like.

 

[Enrahim2]

The legalese has been discussed pretty extensively. The most important parts of it were in the previous leaks. Deauthorization and its legality has been one of the central discussions (TLDR: no-one is sure). I'm not saying shut your thread down but it does seem unnecessary.

I completely agree. The "No longer an authorized license" formulation has likely been discussed close to death (though I think my interpretation of it primarly being intended to ensure 1.1 content couldn't be used with 1.0a has been strangely ignored - and I think that interpretation is strengthened as I cannot see any other provisions in this full document that seem to protect against such a transfer, if the formulation "No longer an authorized license" should fall in court upon any of the many arguments against it not being valid from a legal standpoint)

Hence I stated my preference of looking at other things than this particular formulation in this thread, and I hope the posts after your can show that there might still be other questions and confusions around this document that someone might be interested in, beyond that single formulation

 

[Enrahim2]

Absolutely yes. Have you... never read a contract?

Yes, what confuses me about these is that most contract definitions I have seen appear to try to make the term more precise, and narrow, while still staying within the overall domain of the normal legal wording. With exception of "Licensed Work" I feel like the opposite is the case here. For instance the term "Unlicensed content" appear to be something I would more naturally have described as "Prohibited Content". Might there be any non-obvious legal consequence of choosing to use "Unlicensed" vs "Prohibited", or are these terms void of any outside meaning once they are defined with capital letters in the start of a legal document?

 

[Ruin Explorer]

Yes, what confuses me about these is that most contract definitions I have seen appear to try to make the term more precise, and narrow, while still staying within the overall domain of the normal legal wording. With exception of "Licensed Work" I feel like the opposite is the case here. For instance the term "Unlicensed content" appear to be something I would more naturally have described as "Prohibited Content". Might there be any non-obvious legal consequence of choosing to use "Unlicensed" vs "Prohibited", or are these terms void of any outside meaning once they are defined with capital letters in the start of a legal document?

I mean, you'd probably want an actual lawyer to advise on that, but broadly speaking definitions are about explaining how a term is used in that particular document.

In theory, I could say:

Usable D&D Content ("Deez Nuts") - then explain what I meant by it - and then refer repeatedly to Deez Nuts through the document when I was talking about that definition.

Stuff like Prohibited vs Unlicensed usually matters most when the terms are NOT defined. In fact this whole thing rests on that. Authorised was not defined in the OGL 1.0a. Hence the attempt to use it to de-authorize the 1.0a OGL in this OGL. If Authorized had been defined, we wouldn't be having this problem.

 

[Snarf Zagyg]

The part that floored me was where they could make you pick up their legal fees for defending you if they thought you weren't doing it well enough. Is that a thing that shows up in other licenses?

Yes. It’s referred to as indemnification. IIRC it was part of the 4e GSL as well.

Also? AFAIK, we’ve only seen various versions of the FAQ/explainer, and not the actual license/agreement.

 

[Cadence]

Yes. It’s referred to as indemnification. IIRC it was part of the 4e GSL as well.

I am on that edge of "do work I should because deadline" or "I can stay up later tonight". I will attempt to hold off googling that until tomorrow.

Also? AFAIK, we’ve only seen various versions of the FAQ/explainer, and not the actual license/agreement.

It read to me like it was supposed to be the FAQ + agreement interpsersed with explainer. :::: Unless it was obvious, I would have no way of knowing if it looked like some important agreement parts were missing.