For the rights of third party beneficiary to be acknowledged by a court it must pass the following tests.
A third party is an intended third-party beneficiary of a contract, and thus is entitled to enforce the contract's terms, if:
1) The parties to the contract have not otherwise agreed;
The OGL does not expressly say that no third party beneficiaries are allowed, so the possibility is still alive.
2) Recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties;
Here the intent of the contract must be understood, which is primarily one of using PI to mark sections of an OGL covered work which are not licensed as OGC. It does not further the interest of any party of the contract to have the hands bound by any Tom, Dick, or Harry who wants to come along as a non-party and bind them with PI declarations they have never seen. It does not further the intent of any of the parties, the third party beneficiary is not explicitly allowed for, so it is unlikely that since it seems to be against the intent of the party that a third party would have contractual rights even though they have not been explicitly excluded.
Were this solely a contract of adhesion promulgated by WotC where they and only one party were involved, this section of the contract could be construed AGAINST WotC as the drafter if it benefited the other single party. However, since it is in industry wide use, the needs of the industry as a whole and industry patterns and practices of OGL usage would be weighed in such a fashion to exclude third party beneficiaries from declaring PI and suing for breach.
3) The terms of the contract or the circumstances surrounding performance indicate that either:
* the performance of the promise will satisfy an obligation or discharge a duty owed by the promisee to the beneficiary;or
* the promisee intends to give the beneficiary the benefit of the promised performance.
Since it is not clear that the promisee ever intended to benefit a non-party to the contract through explicit declaration of such intent, it is unlikely that a court would construe the contract as to allow for breaches to arise as a result of interactions with third parties who neither directly (nor indirectly through agents) have become a party to the OGL.
Now, a third party might be deemed a beneficiary if they gave an agent permission to declare something as PI in an OGL licensed work. Then their agent would be a party to the contract, and they might then be deemed to be an intentional, foreseeable, third party beneficiary of protections that would not conflict with the clear intentions of the contract (which would be to mark things in an OGL covered work as not being OGC).
In that instance if Anne authorizes me to make an OGL covered Dragonriders of Pern game and authorizes me, on her behalf, to declare certain parts as PI, she might gain the rights to bring suit for using her PI. Even if she didn't have that right, she would certainly have rights under traditional IP law.
This is the only instance that I can see where a third party beneficiary may have rights under the license -- where it is in line with the clear intents of the license.
Lee
_______________________________________________ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
