<<As for a FAQ, i've been wondering this for some time (and may even
have asked it here already--if so, and if i got an answer, my
apologies, but feel free to repeat yourselves, as i've obviously
forgotten it): would a FAQ have any legal weight. >>
I think posts on this list may or may not have a lot of legal weight. Given that I play devil's advocate a lot and explore positions, my posts from this list might not have a lot of weight as to my real opinion on a subject. Contrast that with a FAQ like the one I've prepared at:
http://members.aol.com/veritasgames/fudge_ogl_faq.html
If I took my real opinions, created a company faq for Veritas Games, and posted it on the web, then any place where I had an unambiguous opinion it could estop me from raising contrary claims in court. Now, I'm free to change my opinions as I think more on a subject, particularly since I'm a non-lawyer. However, if you rely on my opinions to our mutual detriment, even if have since changed my opinion, can I sue you for damages based upon my once bad opinions if your actions hurt me?
Consider, for example, were I to claim "you cannot PI a formula unless it's patented" and put that in my FAQ. Well, if I PI an unpatented formula, you use it ignoring the PI designation, and I drag you to court, you can haul out my FAQ.
The law has a concept called equitible estoppel, estoppel by deed, and promissory estoppel. These effectively prevent you from hazing somebody for taking actions which by your word, your deeds, or your promises would seem something that they could rely upon.
So, if you tell me it's OK, then even if it later turns out to not be OK you may be estopped from claiming damages against me in certain instances. You might be able to stop me from continuing my actions, but you probably can't get a lot in damages from me if I got in trouble with you for doing what you said is OK.
One lawyer on this list has eschewed getting involved with any OGL master FAQ or binding interpretive document saying explicitly that he didn't intend to be estopped by signing on to such a document, and he preferred to operate solely within the bounds of the OGL as it exists.
Keep in mind that estoppel is not a universal shield. It might only be useful in cases where you had reason to believe that what you were doing was OK. And it certainly may not shield you much from criminal violations -- I can't give you permission to break the law.
<<IOW, if the FAQ
says something that either is not included in the license at all, or
contradicts the current wording of the license (but which the license
would mean with, say, a bit of punctuation clean-up), does it have
any legal weight? >>
Define "legal weight"? It may shield you from some claims of damage. But unless _you_ wrote the FAQ, then it may not have a lot of weight.
Ambiguities in contracts are sometimes read in favor of the drafting party, but I can't remember if that's true of a contract of adhesion (where one party gets a "like it or lump it" contract). In that case, the ambiguities may be read against the drafter if he brings suit, on the grounds that he knew or should have known about the ambiguities and he was the only one in the position to effect the changes of the language to make it clear. IANAL and I can't remember the rules on interpreting contracts of adhesion very well.
That said, the FAQ of the drafter may assist him a little in establishing his reading of the vague areas during contractual construction in a court of law. However, if the contract isn't clear on a point, I don't think the court is necessarily obliged to consider the unilateral opinions of the drafter of a contract of adhesion and may consider alternative points of view, particularly with regards to ambiguities. So, a drafter's FAQ may limit how a court will interpret a contract of adhesion against the drafter (since the drafter's opinions may be widely known at the time of acceptance of the contract), but will likely also estop the drafter from making certain claims against licensees provided the licensees' behavior is consistent with the FAQ. At the same time, that FAQ, not being a formal part of the contract itself, and not being an interpretive document all parties have agreed to, may hold little weight at all if two users of the license (instead of a user and the drafter) get into litigation.
<<If i follow the FAQified interpretation of the
license, and someone challenges me on it by holding the literal
interpretation of the license, do i have a leg to stand on? >>
Where the FAQ is clearly at odds with the literal _expression_ of the contract, the contract is binding unless the contract provides that it can be amended in practice by both parties. However, while not binding, the FAQ may estop the party who drafted the FAQ from claiming damages from behavior consistent with the FAQ.
<<
Is the safest legal course to>
stick to the letter of the license, even in the face of known
discrepencies, until the license itself is fixed?
>
Where the license is clear and unambiguous you should stick with the language of the license, particularly if the language doesn't allow for amendments or changes based on practice or notification of all involved parties. The rules of contract construction will not allow for strained constructions of the contract which are clearly at odds with the plain language of the contract.
Where the license is vague, you should either stick to the single most conservative (i.e., the one least open to any attack) reading of the document to make yourself unassailable.
Relying on a WotC FAQ may hold little weight in a case where WotC is not one of the primary participants and where WotC is not an impleader.
If you are interested in contracts of adhesion, the most common ones historically have been insurance policies. The growing movement of shrinkwrap licenses (which some jurisdictions may not view as valid contracts) is adding to the case law on contracts of adhesion as well.
An article on insurance policies of adhesion is at:
http://www.aaisonline.com/articles/16rn5_03%20p056.pdf
I, for one, am utterly confounded with WotC's unwillingness to redraft some clearer language of the license and to encourage people to shift over to a new clearer license. As a contract of adhesion, any ambiguous points might be construed against them if they were a party to litigation.
Remember, IANAL. I'm an academic who does some legal study on the side (some coursework, some courses on tape to help me study in spite of my visual impairment, etc.). I also lobby and draft public policy, but primarily in the civil rights arena, not in the intellectual properties arena.
Lee
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