Under this agreement, I determine what words mean
February 11, 2023 7:29 PM Subscribe
In the recent D&D license dispute, a draft included a clause disallowing obscene content, and said Wizards of the Coast would solely determine what was obscene.
In general, how much can a party get away with if they have that sort of power? Can they attack non-English meanings to words like "hateful" or do they at least have to make an attempt to justify it?
This is basically a hypothetical question about how much power someone can give themselves in a contract or agreement. I've long been curious about it. It's not about this specific license (which was never issued) and I'm already aware that agreeing to something like this without a lawyer in the real world would be very silly.
That said, here's the draft language:
Can they just say that? "Your sales numbers are hateful to us, your product is banned! And tough luck, no appeal!" This is obviously not what the meaning of "hateful" in that clause was, but everyone else has signed away the right to complain? They don't even need to come up with a fig leaf of an excuse because no court will hear them?
Or would the other party have leverage to go to court in that case? Are they bound by the fact that words have meanings, even though they've tried to get themselves made the arbiter of what words mean? Is there some trick for an aggrieved plaintiff to sue despite the wording?
This is basically a hypothetical question about how much power someone can give themselves in a contract or agreement. I've long been curious about it. It's not about this specific license (which was never issued) and I'm already aware that agreeing to something like this without a lawyer in the real world would be very silly.
That said, here's the draft language:
You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing [ . . . ] We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.In the plain English reading, this is pretty ironclad--they can decide anything at all is off limits, and I can't challenge or sue. So let's say they have a competitor they want to shut down using this clause because the sales are too high.
Can they just say that? "Your sales numbers are hateful to us, your product is banned! And tough luck, no appeal!" This is obviously not what the meaning of "hateful" in that clause was, but everyone else has signed away the right to complain? They don't even need to come up with a fig leaf of an excuse because no court will hear them?
Or would the other party have leverage to go to court in that case? Are they bound by the fact that words have meanings, even though they've tried to get themselves made the arbiter of what words mean? Is there some trick for an aggrieved plaintiff to sue despite the wording?
would solely determine what was obscene.
While this does apparently differ from the actual text
decide what conduct or content is hateful
it does does bring to mind the legal wrangling around postal Prohibitory Orders:
While this does apparently differ from the actual text
decide what conduct or content is hateful
it does does bring to mind the legal wrangling around postal Prohibitory Orders:
Historically, the Prohibitory Order was devised as a means of protecting freedom of speech, while recognizing the rights of individual recipients not to receive advertisements they deem to be pornographic or otherwise offensive, and the absolute and unreviewable right of the recipient of a mailpiece to determine whether or not it is offensive. A prohibitory order against a specific mailer, although the language of the application form implies that explicit sexual content is the only basis for finding a mailpiece offensive, has been extended by case law to allow the recipient to declare any mailpiece obscene, for any reason whatsoever, with no requirement to state the reason(s) for taking offense. The only absolute requirement is that it must be possible to construe the mailpiece as an offer to sell goods or services. Various rulings have upheld the Supreme Court decision that the postal customer's discretion is not subject to review.posted by zamboni at 10:19 PM on February 11, 2023
Laws vary from state to state. My state does not recognize an implied covenant of good faith and fair dealing. And many states will recognize a more formally stated rule of "my house, my rules."
posted by yclipse at 3:13 AM on February 12, 2023
posted by yclipse at 3:13 AM on February 12, 2023
It's also typically hard to overcome explicit terms of the contract via the implied covenant, including 'sole discretion.'
California: "Courts cannot imply the covenant of good faith and fair dealing if it conflicts with a contract’s express grant of discretionary power, unless the literal reading of the provision would render the contract illusory and unenforceable, contrary to the parties’ clear intention." Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798.
Checks on sole discretion are often a focus for negotiation. The most common is some kind of commercial reasonability standard. If there's no opportunity for negotiation it can also become part of an unconscionability analysis. See also 'contracts of adhesion' — which include shrinkwrap/clickwrap licenses, upheld as a matter of necessity in today's commerce. And in which context the 'intention' analysis tends to run aground.
posted by snuffleupagus at 5:53 AM on February 12, 2023 [1 favorite]
California: "Courts cannot imply the covenant of good faith and fair dealing if it conflicts with a contract’s express grant of discretionary power, unless the literal reading of the provision would render the contract illusory and unenforceable, contrary to the parties’ clear intention." Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798.
Checks on sole discretion are often a focus for negotiation. The most common is some kind of commercial reasonability standard. If there's no opportunity for negotiation it can also become part of an unconscionability analysis. See also 'contracts of adhesion' — which include shrinkwrap/clickwrap licenses, upheld as a matter of necessity in today's commerce. And in which context the 'intention' analysis tends to run aground.
posted by snuffleupagus at 5:53 AM on February 12, 2023 [1 favorite]
Legal Eagle did a great review of the whole law, and I think it covers this aspect pretty well.
In short, WotC doesn't want you to defame their brand because this is as light as possible a legal framework as doable for your own publications.
posted by Nanukthedog at 7:36 AM on February 12, 2023
In short, WotC doesn't want you to defame their brand because this is as light as possible a legal framework as doable for your own publications.
posted by Nanukthedog at 7:36 AM on February 12, 2023
Best answer: Laws vary from state to state. My state does not recognize an implied covenant of good faith and fair dealing.
Just looked it up. Washington does. Contract has a WA choice of law.
It's also typically hard to overcome explicit terms of the contract via the implied covenant, including 'sole discretion.'
It is, no question. However, the hypothetical is an unusual one in which the asserted breach is plainly pretextual. If "obscene, hateful, etc." has no meaning at all, such that Wizards need not even have any form of belief that the material actually fits some recognizable definition, then the contract is actually unilaterally terminable without cause by Wizard, and the obscene, hateful, etc. language is surplusage, which is not favored in contract interpretation. In most commercial scenarios of sole discretion, there will be a lot more ambiguity and a lack of a good third-party framework to evaluate the claim.
posted by praemunire at 10:48 AM on February 12, 2023 [1 favorite]
Just looked it up. Washington does. Contract has a WA choice of law.
It's also typically hard to overcome explicit terms of the contract via the implied covenant, including 'sole discretion.'
It is, no question. However, the hypothetical is an unusual one in which the asserted breach is plainly pretextual. If "obscene, hateful, etc." has no meaning at all, such that Wizards need not even have any form of belief that the material actually fits some recognizable definition, then the contract is actually unilaterally terminable without cause by Wizard, and the obscene, hateful, etc. language is surplusage, which is not favored in contract interpretation. In most commercial scenarios of sole discretion, there will be a lot more ambiguity and a lack of a good third-party framework to evaluate the claim.
posted by praemunire at 10:48 AM on February 12, 2023 [1 favorite]
I agree that this is not a typical situation, and my database access doesn't cover WA law, so 🤷♂️.
From a gut-level's RPG fan's perspective, I like Pathfinder (Paizo's) gambit to displace WOTC with a better license, if thats what it comes to.
Though I think WOTC has now seen the writing on the wall and will find a way to placate the fanbase.
This ask was more about the background law on interpretation of terms allocating sole discretion to one party, than this particular potential litigation on the merits of the specific IP in question.
posted by snuffleupagus at 4:20 PM on February 12, 2023
From a gut-level's RPG fan's perspective, I like Pathfinder (Paizo's) gambit to displace WOTC with a better license, if thats what it comes to.
Though I think WOTC has now seen the writing on the wall and will find a way to placate the fanbase.
This ask was more about the background law on interpretation of terms allocating sole discretion to one party, than this particular potential litigation on the merits of the specific IP in question.
posted by snuffleupagus at 4:20 PM on February 12, 2023
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posted by praemunire at 8:07 PM on February 11, 2023