Valinard's Tower

These two words have dominated the discussion of WotC’s attempts to eliminate #OGL 1.0a and replace it with something far more draconian.

Many people, including some lawyers, have argued that if a license doesn’t specifically state that it is irrevocable, it can be revoked at will.

But as far as I can tell, from what I’ve read and heard from lawyers and people who have spoken to lawyers in the open source community where they deal with this kind of thing as a matter of routine that simply isn’t true.

Take the MIT License, which has been used since the late 80s and is one of the most popular free software licenses in the world:

Copyright © (year) (copyright holders)

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

This license is widely considered to be valid, perpetual and non-revocable. Now, reading through it carefully, what two words do you not see?

Contracts are intended to be binding on both parties. That’s what a contract is – a binding agreement with particular terms. If you sign a contract that says “I will do X” you can’t simply get out of it by saying “I promised to do X, but I didn’t specifically promise not to not do X!”

Yet this is the consequence of assuming at-will revocation as the default – in order to really promise something, you have to not only make a promise, but make a separate promise to not renege on that promise.

There are two elements of the OGL that serve to make it irrevocable: One, the term “perpetual”. From what I’ve read, courts will generally tend toward the interpretation that when you specify a term, and don’t specify a termination clause, both parties meant and understood for the contract to last for that term.

Two, consideration. If you paid someone for a license they obviously can’t just cancel it at will unless they specify that they can in the contract – in effect saying “give us some money, and maybe we won’t just keep it in return for nothing.”

The OGL contains consideration, but it isn’t money – the consideration is “agreeing to use this License” – that is, publishing your work as Open Game Content under the OGL.

Some have claimed that there is no consideration in the OGL one one side or the other, but this is false. The license to the SRD and other OGC is valid consideration because the OGC contains copyrightable material, as well as uncopyrightable procedures and rules.

On the other side, the agreement to publish under the license has value too. Jacobsen v. Katzer in 2008 found that open source licenses do have consideration (emphasis mine):

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate.

Is it perhaps a good idea to specify both terms in future contracts? Absolutely, for the avoidance of doubt and stupid “no backsies” playground style arguments. Indeed, there may even be some uncertainty in certain jurisdictions as to which way the courts might rule.

But is it strictly necessary?

The long experience of the open source community – which seems to be our best source of evidence here – suggests no.

Of course I am not a lawyer, am not giving legal advice here, and I welcome clarification and corrections from actual lawyers if they care to weigh in.

But I have noticed several of the actual lawyers who have been weighing in on this issue don’t appear to have done their research. This is perhaps unsurprising. If anti-vaxxers can find doctors willing to claim COVID isn’t real, we must bear in mind that people with idiosyncratic interpretations of contract law are going to be able to find lawyers to swear to those, too.

And the danger here in focusing overly on these two words is that we end up getting hoodwinked with such things as “perpetual, irrevocable” licenses which have clear and draconian termination clauses, or can be updated to change their terms (including the term that makes them irrevocable) at will.

Because the law isn’t a game of Simon Says. The text of the contract in its entirety matters a lot more than whether you said the magic word.