CONCERN: Copyright notice for the License.
Response: It's the copyright for the License itself, not the Open Game
Content you distribute. Permission to include the License is in the License
self-referentially, so you don't need WotC's permission to include the
License text when you're complying with the License.
ERROR: Missing (d) in Section 1, and missing a quotation mark.
Response: Got it - will make correction.
WORDING: "Derivative Technology"
Response: I'd like this text to say "Derivative Work", to conform to Title
17. I'll talk to legal about it. I also think all the modifiers that
follow are redundant - I'll ask them about those too.
ERROR: As defined, "Use" only applies to "Proprietary Content"
Response: I think you are correct. This should probably be fixed - I will
investigate.
WORDING: Can I provide a definition of "potation"?
Response: No, and therefore I think the word has to go. I have no idea
where it came from.
WORDING: Does the OGL take a position on Open vs. Closed software?
Response: It does not. You would be required to fulfil the terms of the
OGL if you created sofware using Open Game Content, but you would not be
required to render the resulting software Open Source.
ERROR: Why does Section 5 require you to have the "authority to
contribute"?
Response: Imagine a situation where you work for hire for a large game
publisher. You develop work product. Under the terms of your agreement
with the publisher, your work product is automatically owned by the
publisher, not by you.
In this case, the publisher is the only person with the "authority to
contribute"; you cannot do so even though the work might be your original
creation, and the publisher could subsequently seek to have the material you
illegally contributed removed from other people's products. In that case,
the affected people have a legal way to recover for their damages - they sue
you, for breach of contract, for failing to have had "the authority to
contribute".
WORDING: "Consideration"
Response: "Consideration" is a "term of art"; in contract law, a contract
is not considered binding unless there is an "offer", an "acceptance" and
"consideration". In this case, since no money changes hands, nor do any
exclusive rights, the license is made stronger by specifically identifying
the "consideration" - which will help if someone tries to circumvent the
license in court by claiming that it is not a valid contract.
ERROR: Does the use of term "Proprietary Content" in Section 7 consitute a
logic flaw?
Response: I belive it does. I think the proposed change of changing that
term to "Proprietary Trademarks" is the correct course. I will investigate.
OPINION: Does the restriction against use of Trademarks to indicate
compatibility in Section 7 violate the spirit of the Open Gaming movement?
Response: Not in my opinion. Anyone who wants to debate this issue on the
grounds of what is "ethical" should take the matter up in private email; I
think that as far as I am concerned, a decision has been reached and we're
going forward with this approach. This may be an unpalatable decision to
some members of the community. I am willing to gamble that not enough
people will care to materially harm the movement forward towards widespread
adoption of the OGL as the standard license for Open Game products.
ERROR: The description of "Open Game Content" in Seciontion 1(c) is
incompatible with the identification clause in Section 8.
Response: No, it is not. You retain the right to separate the copyrights
inherint in a given work through the use of the identification clause.
Three Days to Kill, for example, is not a "derivative work" of D20; only the
portions identified as Open Game Content are. In the >absence< of Section
8, the whole document might be found derivative under the terms of 1(c).
But the two clauses, working together, create the necessary carve-out to
identify the separate rights issues.
WORDING: Why not switch to the term "use" instead of "copy, modify and
distribute" after that term has been defined.
Response: We should pick one or the other. My preference would be to
undefine "use" and leave the "copy, modify and distribute" wording, because
that is the terminology used in Title 17, and it is an express indication to
the non-lawyer about what they can really do with Open Game Content. I will
argue with legal over usablility vs. legalese and see how far I get.
CONCERN: How big will the COPYRIGHT NOTICE section of the text become?
Response: It could become quite long. That is the nature of the beast - in
a gift-economy, the primary constrained resource is credit for contribution.
It is possible that over time, some heavily developed Open Games could have
very extensive credit lists. (There are, for example, more than 400 people
mentioned as Playtesters for 3e - we got them all on one page...)
CONERN: Does the License Modification clause (Section 9) control all Open
Game Content?
Response: Yes; and here's why. The current license is the "wide open"
version - with no restrictions. It forms the baseline "gold standard" for
Open Game Content. In the absolute worst case scenario, the OGL is changed
to make it "non-free", or hostile to the aims of the Open Gaming community.
Even so, Open Game Content could still be derived from the material released
under this license, and everyone could ignore the future, "bad" version of
the license. In effect, this application of Section 9 means that nobody
will ever bother to make a "bad" version of the license - because it
wouldn't have any effect on the Open Game community except for completely
new material contributed only under those "bad" terms. The existence of the
"gold standard" license means that it is impossible to put the genie back in
the bottle, and thus reduces to close to zero the potential chance that
someone in the future will try to use the OGL to do so.
Likewise, it is possible that at some time in the future, some positive
addition to the license could be made; perhaps a grant of patent rights, or
something similar. In that case, the existing Open Game Content contributed
under a previous version of the license would be >excluded< from
participating in that benefit, unless the License provided a mechanism for
that older content to be retroactively covered by the new agreement. That
is what Section 9 provides for.
CONCERN: Can the terms of Section 9 be used to "deauthorize" a previous
version of the License?
Response: No, they cannot.
WORDING: How strict will the requirement that the Open Gaming License text
be provided with Open Gaming Content be enforced?
Response: Pretty strictly. The tie between the rights in the work that are
passed forward to future recipients and the enumeration of those rights in
the form of the License is one of the protections the License uses to ensure
the freedom granted by the License will not be forgotten or abridged. My
stance on this issue is that if you publish Open Game Content, you need to
directly include the text of the license.
Long term, I'm sure we'll have to deal with the issue of email and
discussion groups (when does a "distribution" of Open Game Content happen?
What happens if I post a two or three hundred word message describing a new
class in an email message - should I really be required to tack on the OGL
text as well? Probably not....)
WORDING: What does the term "sublicense" mean in Section 13?
Response: When you pass along the covered material, you are iteratively
sublicensing under the OGL. Section 13 means that a whole branch of Open
Game Content cannot be harmed even if someone higher up on the tree fails to
follow the terms of the OGL.
Of course, if someone successfully litigates to enforce a proprietary
copyright over material that has been mistakenly identified as Open Game
Content, that mistake propagates through the whole tree - a person's
copyright ownership isn't lost just because someone >else< screwed up.
=====================
My own notes:
OPINION: I think the license survived it's trip through the legal
department. Were I forced to use this license today with no changes, I think
we'd be o.k.
Whew!
WORDING: I want to scrap and rewrite all of Section 1 to be more clear and
more effective. I think it's clogged up with too much legal debris that are
not strengthing the license and is probably getting in the way of
understanding it. We'll see what can be done.
WORDING: In particular, I think 1(d) and 1(e) [as written] need to be
either deleted or reconfigured.
WORDING: Section 7 opens up a new path I had not considered previously. By
saying that you cannot use Proprietary Content (essentially "the setting")
without permission, the License now allows you to mix material that is
separate from Open Game Content in with Open Game Content. I think that
this is Legal's attempt to ensure that "the setting" doesn't accidentally
get rendered "Open" by mistake.
I wonder if this issue can be addressed in the reverse of the Open Game
Content identification, that is, some language could be added to the license
that allowed you to specifically indicate what was "Proprietary Content",
and exclude that material from the Open condition, even if it got mixed in
to some text that was otherwise Open Game Content.
Example:
let's say, I have a note at the beginning of my work that says:
"The words "Snakemen", "Eggmother", and "Snakewarrior", "Snakesense",
"Snakemagic", and the geographical description including maps of "Snakehome"
are Proprietary Content and may be copyrights, trademarks or registered
trademarks owned by Ryanco. The distribution of a work containing these
terms and descriptions by any entity other than RyanCo or its licensees is
not permitted."
This essentially creates a "carve out" for "the setting", without affecting
the utility of the rules themselves.
The thing I like about this approach is that it provides an affirmative way
for a publisher to ensure they don't accidentally Open "the setting", and it
gives us a great way to mesh licenses with Open Game Content in a protected
way.
Comments?
WORDING: One thing I would really like Legal to take a stab at is defining
"derivative". I will ask them to write some language that defines this
term, and see how effective it is in describing the scope of Open Gaming.
Ryan
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For more information, please link to www.opengamingfoundation.org
