Justin-
I still maintain my opinion that Wotc does not need to
put the OGL in Dungeon or Dragon if they decide to
designate content from either of those sources as Open
Content. They only time they would need to do so is if
they were using someone else's material such as
content from the Creature Collection.
This is tricky. Here is a walk-through of my legal
analysis. Of course, this is not a legal opinion.
Consult and attorney (other than me).
The license provides:
"2. This License applies to any Open Game Content that
contains a notice indicating that the Open Game
Content may only be Used under and in terms of this
License. You must affix such a notice to any Open Game
Content that you Use."
There are two parts here--what the license "applies
to" and when it must be "affixed to" something.
The license "applies to" any content containing a
notice that the content can only be used under the
terms of the license.
The license must be affixed to any open game content
that "you" "use".
Let's look at definitions:
The license defines "you" as meaning: "�You� or �Your�
means the licensee in terms of this agreement."
We are all the licensees in this case. WotC is the
licensor. That means WotC is not a "you," if that
makes any sense.
Then, right up above, the license defines "use" as:
"�Use�, �Used� or �Using� means to use, Distribute,
copy, edit, format, modify, translate and otherwise
create Derivative Material of Open Game Content."
Here, the use definition indicates use is doing stuff
with Derivative Material of Open Game Content.
So what does all this mean?
I think a reading of this means that WotC could simply
indicate that some new material, such as a new
monster, was not Open Game Content and designate by a
notice that it must be used in accordance with the
license. That does not trigger a requirement by them
to then affix the license to that newly designated
open content--they are not "you" "using" OGC.
That is why I say that WotC does not need to put a
copy of the OGL in Dungeon were they to decide to
release some additional material in that Magazine as
OGC. All they would have to do is indicate by notice
that the material is covered by the license.
They are in a unique position. They dont need to use
the OGL to create new OGC. We (generally) do. For
example, I cant make a new monster without relying on
the OGC to do so. I need to use terms like HP, AC,
etc, which all come from the d20 SRD, which by my use
requires that it may only be used under the OGL and
requires me to affix the license to it. WotC can
create new stuff without using OGC because they hold
the initial copyright to that material. They are not
"using" the OGC when they create new OGC because
"using" means "creating derivative material of Open
Game Content," it does not mean simply designating
content. In WotC's case they are not creating
Derivative Material.
The only way you could release open content without
using OGC (and thus the OGL) would be if you made your
own game with all original content (no d20/OGC stuff)
and released it under the OGL.
Ryan alluds to this type of use in the Q&A appended to
the OGL:
Q: Do I have to use this license with material from
WotC or based on something WotC publishes?
A: Not at all. You can use this license to provide a
strong copyleft to any material, including an entirely
new project.
Bottom Line: That is why I said WotC, IMHO, does not
need to include the OGL in Dungeon or Dragon if they
simply want to add to the content in the stream of
OGC. Pursuant to the license, they simply designate
the new content as being subject to the license. They
do not, as a result, need to affix the license to the
work, nor does the whole work then become subject to
the license.
I hope this helps. Maybe it also helps show why these
issues are difficult.
Clark
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http://www.necromancergames.com
"3rd Edition Rules, 1st Edition Feel"
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