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Comment by anigbrowl | Hacker News Reader

'Perpetual' has no meaning if it can just be revoked by fiat. Imagine trying to revoke your prior agreement to pay your legal fees.

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"Perpetual" has a precise meaning: it lasts until it is explicitly revoked; you don't have to re-license the IP on a regular basis, for example.

I.e. a temporary license will expire by default, but a perpetual one will not.

This is not legal advice but rather my personal understanding of the matter which may or may not be factually correct.

Please send this new definition to the compilers of my legal dictionary. What you write is arguable for the license as a while, but in no way inheres to the word itself. Interestingly there is a common law 'rule against perpetuities' due to the legal headaches they create in wills and trusts. This would probably bias a US court somewhat against a broad interpretation of the license, but then again it might also bias it against the licensor whose carelessness gave rise to the litigation in the first place.

which dictionary are you sing?

This one clearly shows the ambiguous definition:

https://thelawdictionary.org/perpetual

> Never ceasing; continuous ; enduring; lasting; unlimited in respect of time; continuing without intermission or interval.

Black's law dictionary

> "Perpetual" has a precise meaning: it lasts until it is explicitly revoked

I guess this explains why the Terms of Service for some sites that host user generated content state that as a user you grant the company a perpetual, irrevocable license to use your content. Makes sense, thank you.

So the new license would apply to past work by others under the old OGL as well?

Trust some more work went into the gpl if that is true.

No, unless they licensed their work in a way that makes the new OGL the correct license (like the "GPLv2 or later" language some software projects chose).

WOTC only has the ability to change the license of IP they own, even retroactively. However, works based on WOTC IP which were legal under the OGLv1.0 may no longer be legal under the new terms, putting them in a legal gray area (they may be illegal to distribute, or they may still be legal to distribute but only because they were legal at the time they were created).

Creating new works based on the old IP that would have been legal under the OGLv1.0 would almost certainly not be legal if WOTC changes the license, though.

Note that section 9 of the OGL is an "or later" clause allowing Wizards to publish new authorized versions. (Wizards are now also claiming they can deauthorize versions which is much more wishful on their behalf)

Unless the original license includes a revocation or termination clause, it cannot be unilaterally revoked or terminated. The OGL does include a termination clause but it doesn't apply in this context

A license doesn't limit the rights of the licensor in any way that is not explicitly mentioned in the license text. So any license can be implicitly revoked if it doesn't explicitly say it is irrevocable (e.g. the GPL says exactly that, to avoid this kind of loophole).

The GPL v3 uses the word "irrevocable". The GPL v2 and earlier, and many other open source licenses, don't.

But that the authors of GPL v3 wanted to close this gotcha loophole that you and the forum lawyer calls attention to, doesn't mean the gotcha loophole would have worked. Nor that it's going to work, or even will continue working even if it's worked before.

Courts aren't computers just executing legal code - for good and bad.

Sure, nothing is certain related to legal matters. I was looking into this some more and there are apparently even arguments that even the GPLv3 is actually revokeable as long as all the copies were given away for free. Of course, others argue that even the BSD or MIT license are irrevocable.

There is little case law about software re-licensing at least, so yeah, it's hard to say.

Where in US statutory law or case law is there an implicit right to revoke a license unilaterally?

There is plenty of case law that says the opposite. For instance Cohen v. Paramount Picture shows that copyright licenses are not unilaterally revocable even if the original license doesn't explicitly state it is irrevocable.

A license is an enforceable contract. Revocation requires the consent of both parties, if no exception is provided for originally. Eisenberg, The Revocation of Offers covers many of the nuances of when a contract or even an offer is no longer revocable.

I don't speak legalese, but does the absence of a termination clause mean it cannot be terminated, or does the presence of a non-terminable clause mean it cannot be terminated?

That is, if it's not explicitly mentioned, which one applies?

There is a termination clause which lists the acceptable reason as being a failure to fix a breach of the license within 30 days of being notified of that breach.

The fact that there is no "we have a new version" clause listed in the termination section would likely go against wizards but they are likely to claim deauthorization is different to termination.

That's a really common thing. In Polish copyright law, any license expires after five years by default unless it explicitly states that it's perpetual - which doesn't mean it becomes irrevocable at all (in fact, it's easier to revoke a perpetual license than a timed one).

That said, this is an open license rather than a regular two-sided contract, which makes a lot of things about it untested in courts and there are some pretty good legal arguments for considering it irrevocable flying around (just like in case of GPLv2, for example).

Like many legal terms, it has a specific meaning influenced by statutes and case law that differs from and is more precise than the standard dictionary definition. You’re not likely to win a legal case if your defence is pointing at ‘perpetual’ in your Webster’s. Although the lawyers might have a good laugh if you try.

I'm more of a black's guy. I don't think it's a simple case for either side, rather that WOTC and whoever drafted the contract now face a years-long headache in which both sides play citation bingo until one of them runs out of money or willpower. Given that gamers are involved, it could go on a while.

I generally read over those things, but the lack or ‘irrevocable’ in the OGL was very glaring.

that was apparently covered.

If you made something based on the license while it was in effect, you are perpetually covered.

Once they revoke the license, you can no longer make new work.

That's how I read it anyway

Even if thechange does not apply to works that have already been published, this is still newspeak. This is lawyers chosing words to mean what they say they mean whenever they say it.

The Apache license does have the word irrevocable. But BSD, MIT, EPL and others do not. Does that mean that if the copyright holder for lib v1.0 decides to change the licence for lib v1.0 (not subsequent versions) to something restrictive then everything using it gets frozen in time and nothing new can be made?

That's precisely the question up for debate. The answer is unknown.

Right, and I think the person trying to legally poke the status quo on this issue is an idiot (as in, they are in Carlo M. Cipolla's lower left quadrant) because it will either blow up in their face or it will blow up in everyone's face.

Same as with Oracle vs Google, other than a bunch of court room sophists, nobody really gained anything.

That's a separate matter. Perpetual just means it doesn't expire on its own - only if revoked by the authors. Separately, if you based a business on creating a work with a valid license, if the license is later revoked, there is a good chance courts will protect your right to keep selling the work you based your business on, even if the current license no longer allows it - that is what I understood the OP was explaining.

The problem with relying on a court to protect your small OGL derived business is that Hasbro has much deeper pockets to keep somebody tied up in litigation and appeals for years, that they probably can't afford.

Hasbro doesn't want to waste their money on your $0 infringement either.

You're missing the bigger picture... keep small fry tied up, make them not win and then nobody else has a precedent ruling. Take a proper money making business to court first time and you risk them actually fighting and winning.

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