A lot of the answers you want are so case by case that it's impossible to affirmatively say what a judge won't consider and what a judge would consider.
<<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.
The fact that WotC is the author of the license doesn't give them any
relevance?
>>
Unclear. All I can tell you is that were they a party to the suit from what I remember about contracts of adhesion the vague areas would be decided AGAINST WotC not FOR WotC. That may be different in normal contracts where both sides have a chance to make amendments. A contract of adhesion is drafted unilaterally, so, if memory serves vague areas are decided against the drafter to slap the drafter on the list for having all that power and knowledge. It's to prevent powerful companies (like insurance companies) from drafting vague language unilaterally and then trying to screw over policy holders with their novel "interpretations".
With WotC as a non-litigant, I don't know how a court would rule.
I suspect WotC would intervene (if they could) on any OGL-related case that had any possibility of having their license reformed against their will (via the reformation clause).
<< I'm
still not convinced that the license, taken on its own without any of
the discussions on this list, recognizes closed content>>
I think it does recognize it _outside_ of the covered work. So I think that since works can contain works, a magazine, for instance, might have one article which is a covered work and other articles might not be covered by the license at all.
However, I think this requires you to define a compilation or collected work so that you can say this book or article contains multiple works.
Similarly, a single article might contains various pieces of artwork plus text. You might list the text as one work, and the artwork as other works, covering only the text.
This might be quite reasonable and consistent with the license. However, I am not convinced you can exclude individual sentences or words here and there in a quasi-random fashion as I've seen some people doing, leaving them as neither OGC nor PI.
<<
Could you point to the FAQ, or
discussions on this list, or Ryan's say-so (as the impetus, if not
author), to overrule this? >>
My opinions on this subject are already well established (and briefly noted above). I think that the licensing language does not allow for a 3rd type of content _within_ a covered work. And since I think the license is pretty clear on this point, I think no outside source would overrule the plain language of the contract.
That last sentence is a general rule: when the language of the contract can be construed in an unambiguous fashion, one party's unilateral attempt to bring in other "unofficial" sources of interpretation should not hold any weight.
<<Or, in general, if the contract clearly
says one thing, but everyone behaves as if it says another, does this
behavior, whether codified and written down or not, have any weight
if someone insists on following the letter of the contract?
>>
If both parties in a suit agree to a behavior about what they won't sue over then neither party is going to raise the issue against the other and the court will likely not involve itself in an issue that nobody is fighting over even if it is behavior that's nominally inconsistent with the contract.
Courts have too much work on their plates to go worrying about behavior two parties don't want changed and aren't litigating.
Now, if your question were changed to:
"Most people behave X way, it is an inconsistent or extremely strained reading of the license, and somebody who doesn't believe X way wants the license interpreted in the most reasonable fashion what happens?"
Well, there I think that the most reasonable construction of the contract is not going to be turned on its head to punish the guy interpreting the license in a consistent reasonable fashion.
Where the license is really vague on a point and 99% of people are interpreting something one way, however, then a judge may take that into account and the impact it might have on an industry. At the same time, the judge may just nuke that clause with the reformation/severability language.
<<
I'm wondering what happens if it ever gets to court and it needs to
be determined what the contract says--would the court consider things
like consensual interpretation *over* the letter of the contract, or
only resort to secondary sources if the contract is not clear on its
own?>>
You only resort to secondary sources if the contract is not clear on its own, as a general rule. Again, the "everybody agrees but we're litigating it anyway" seems sort of an odd thing to litigate. Why are we litigating it if we agree?
<<Even if the contract is demonstrably at odds with the intent of the
drafter (say, due to legal incompetence)?>>
Well it depends if the intent of the drafter can be inferred from the language of the contract or if it is being "inferred" retroactively by the drafter merely claiming what his intent was. If the drafter's intent is clear and the language is bungled then perhaps the reformation clause would be called into effect. That's sort of a case-by-case situation.
Where the contract unambiguously states X and where the drafter wishes it said Y, then when a big company like WotC unilaterally drafts something as a contract of adhesion, then what they "wished" they had said may not hold a lot of weight with the courts.
Part of this depends on:
a) how it impacts the industry
b) whether any precedent or persuasive logic could be ported over to contracts of adhesion in the insurance industry
Courts are not going to want to signal to insurance companies that it is acceptable to draft vague language to retroactively screw over policy holders due hundreds of thousands of dollars. Do you see what I mean?
<<
But we know that Ryan was behind the drafting of the WotC OGL.>>
Did he draft the OGL, or did he constructs it's basic form and leave the attorneys to draft it?
<<
We
have evidence that WotC's current legal team disagrees with that
position (because they are making PI claims that would be nonsensical
if they agreed with Ryan, unless, i suppose, they are deliberately
acting in bad faith, counting on their economic muscle to prevent any
challenges). >>
Example?
<<
But what if WotC's interpretation is
correct, according to the letter of the license, yet we can
demonstrate that the license was drafted with the specific intent to
match Ryan's interpretation? As a general principle of US law, which
interpretation is favored?>>
If the letter of the license, without more, is unambiguous on a point, then that is the point of reference normally used if the license cannot be updated by subsequent agreement between the parties.
Licenses that can be amended without signing them and putting them in writing can definitely be inferred to be de facto amended by observing the behavior of all involved parties and hearing their testimony.
Where the license is not subject to changes without the express permission of all involved parties, then behavior contrary to the clear, reasonable construction of the party should not be used against any party that is construing the contract language in the most reasonable fashion possible.
Consider that there is some guy who has never heard of Ryan or this list and who has no email account. He picks up an OGL covered product and is thrilled and goes to work. Is a court really going to screw this guy over for interpreting the contract in the most reasonable manner possible? No, not if they are a good court. And since that hypothetical guy exists, courts tend to interpret contracts in the most reasonable fashion possible and only look to other factors when the language is ambiguous.
<<
>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.
or...?
>
Or what?
Lee
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