The OGL 1.1 is not an Open License

[S'mon]

That's a cruel barb!

It's often hard for lawyers to communicate effectively with laypersons. Everything you have said is legally correct, of course, but most of the people reading what you say don't understand it. They think you're saying that by withdrawing its offer, WOTC can "take away D&D" (the material in the 3e/3.5/5e SRD), when you are explaining the technicalities of offer & acceptance and have repeatedly said that it makes no practical difference.

 

[pemerton]

It's often hard for lawyers to communicate effectively with laypersons. Everything you have said is legally correct, of course, but most of the people reading what you say don't understand it. They think you're saying that by withdrawing its offer, WOTC can "take away D&D" (the material in the 3e/3.5/5e SRD), when you are explaining the technicalities of offer & acceptance and have repeatedly said that it makes no practical difference.

There are two things I find interesting about this discussion, beyond the details of the OGL speculation. They're related.

One is that this shows the limits of "private orderings" - if one of the powerful actors in the private order decides to change the terms on which they participate in it, that can have quite significant ramifications for everyone else. Such as, in this case, the potential of two "ecosystems" emerging (of course details would depend on what is in the revised SRD, what is in OGL v 1.1, and the section 9 argument). I assume that may ENworlders are Silicon Valley-style libertarians, and it's interesting seeing them confront these limits. I feel like they should read Durkheim's critique of Spencer's contract-based libertarianism.

The other is that many people seem to have what I would characterise as "proprietary" rather than "contractual" intuitions: they think that WotC, by making the offer to licence the SRD under the OGL, has created a new type of property right in all the rest of the world - as in, all the world has forever more a right to use the OGC found in the SRD under the terms of the OGL. This is the intuition that I am pushing against in my attempt to work through the contractual technicalities.

Of course, there is a party who can, fairly trivially, create (or impose) property-type rights: the state, via its exercise of public law powers. But that goes contrary to libertarian intuitions!

 

[S'mon]

Also, I know you've got better things to do then speculate about the OGL, but while you're here helping us speculate - what do you think is the purpose/effect of the language in the OGL that I bolded upthread (about the OGC including adaptations, expansions, derivative material etc)?

My word search on the OGL only locates these two uses of 'Derivative Material', in section 1:

(b)"Derivative Material" means copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted

(g) "Use", "Used" or "Using" means to use, Distribute, copy, edit,
format, modify, translate and otherwise create Derivative Material of Open Game Content

Then those relate to

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.

My fist impression was they were just trying to stop people closing off material from the SRD (etc) simply by changing the wording a bit. It's drafted like a creative commons licence and the architecture seems to be that of software coding, where you want to keep the whole ecosystem open.
But looking at it again, they seem to be just saying you are allowed to use the OGC to create derivative material. I don't see where it says that derivative material must itself be OGC?

(I'll go back over what you said)

 

[pemerton]

But looking at it again, they seem to be just saying you are allowed to use the OGC to create derivative material. I don't see where it says that derivative material must itself be OGC?

Definition of OGC in section 1 (the phrase used is "derivative works", not "derivative material":

”Open Game Content” means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.​

So my reading is that the OGC that a licensor licenses when they enter into the OGL includes "derivative works". (Not additions and extensions, though - that was me running together this part of the licence with the Derivative Material definition, which was an error on my part resulting from poor memory.)

But my problem is that I don't know much about what a "derivative work" is because my copyright law is weak. So, for instance, I don't know whether it's a concept that applies to the relationship between (eg) the 3.0 SRD and the 3.5 SRD; or that might apply to the relationship between the 5e SRD and a revised one-D&D SRD.

 

[S'mon]

That makes sense.

But does the definition of OGC in the OGL v 1.0/1.0a make a difference?

"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity​

(My emphasis.)

(d)"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity

The bit I have bolded at first sight seems nonsensical to me. I think it might be trying to say that you can't claim ownership over any new game mechanics in your material if you use the OGL. ie, any new game mechanics in your material that uses the OGL, automatically become OGC.

"enhancement over the prior art" seems a weird phrase to be using here, where we are talking copyright works not patents. Game mechanics are not protectable in copyright. Maybe this is trying to stop them being protected by contract?

I think the latter bit any work covered by this License, including translations and derivative works under copyright law is also unclear, but again I think it is probably trying to say that material closely derived from OGC is itself OGC. I think it is trying to cover translations and other adaptations of OGC. So eg you could not reformat OGC and thereby make it not-OGC. I don't think it is trying to say that any material that incorporates OGC becomes entirely OGC itself.

 

[pemerton]

(d)"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity

The bit I have bolded at first sight seems nonsensical to me. I think it might be trying to say that you can't claim ownership over any new game mechanics in your material if you use the OGL. ie, any new game mechanics in your material that uses the OGL, automatically become OGC.

"enhancement over the prior art" seems a weird phrase to be using here, where we are talking copyright works not patents. Game mechanics are not protectable in copyright. Maybe this is trying to stop them being protected by contract?

I've always been curious about the patent law stuff ("enhancement over the prior art"). The sense I had tried to make of this is that (i) if game mechanics are not an enhancement over the prior art, then they're public domain (but I'm guessing a bit here as my patent law is no better than my copyright law) and hence don't need to be and cannot be licensed, and (ii) if they are an enhancement over the prior art then you are licensing them as OGC and hence - vis-a-vis the licensee - foregoing any patent-based claim against them.

I think the latter bit any work covered by this License, including translations and derivative works under copyright law is also unclear, but again I think it is probably trying to say that material closely derived from OGC is itself OGC. I think it is trying to cover translations and other adaptations of OGC. So eg you could not reformat OGC and thereby make it not-OGC. I don't think it is trying to say that any material that incorporates OGC becomes entirely OGC itself.

It would be amusing if WotC found itself needing to argue that it's transformation of an earlier iteration of the SRD into a later iteration is not so minor as to fall within the scope of your suggested interpretation of this clause.

 

[S'mon]

But my problem is that I don't know much about what a "derivative work" is because my copyright law is weak. So, for instance, I don't know whether it's a concept that applies to the relationship between (eg) the 3.0 SRD and the 3.5 SRD; or that might apply to the relationship between the 5e SRD and a revised one-D&D SRD.

'Derivative Work' is not a term that appears in the UK copyright law (the CDPA 1988) either, so I'm looking at it from the 'outside'. It definitely covers adaptations and translations. It can also cover what in the UK would be non-literal copyright infringement. An unauthorised sequel to Rocky was held (in California, afaicr) to be a copyright infringing derivative work of Rocky.

Wikipedia discussion Derivative work - Wikipedia

United States Copyright Act in 17 U.S.C. § 101:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

The important thing about a derivative work is that normally the author of the derivative work has copyright in the derivative work, but if unauthorised it will also infringe the copyright in the original work. (That's the UK situation. In the US they seem to treat derivative works as belonging to the original copyright owner, which I find odd)

 

[pemerton]

The important thing about a derivative work is that normally the author of the derivative work has copyright in the derivative work, but if unauthorised it will also infringe the copyright in the original work.

So one effect of the "derivative work" clause is to protect licensees from liability for copyright infringement when they publish work that does not include the literal OGC, but does include stuff that is derivative of the literal OGC (and hence is also OGC in virtue of the derivative work clause).

If WotC releases a revised SRD which contains X from the old SRD plus new Y; and then someone publishing under the OGL v 1.0a publishes a work that includes some of Y; that publisher might want to argue that Y is derivative of the old SRD and hence that they are not infringing, because licensed under the OGL v 1.0a.

(I'm trying to frame this at least somewhat analogously to your "Rocky" example.)

So WotC would want to be arguing that the revised SRD with X + Y is not derivative (or, at least, it's Y component is not derivative) of the old SRD that included X. Which seems a little odd, at least at first blush.

 

[S'mon]

It would be amusing if WotC found itself needing to argue that it's transformation of an earlier iteration of the SRD into a later iteration is not so minor as to fall within the scope of your suggested interpretation of this clause.

If I were WoTC I'd argue that the ONE D&D SRD was derived from the ONE D&D non-OGC rule books, not from the 5e SRD. So not a derivative work of the 5e SRD.

 

[pemerton]

If I were WoTC I'd argue that the ONE D&D SRD was derived from the ONE D&D non-OGC rule books, not from the 5e SRD. So not a derivative work of the 5e SRD.

I hadn't thought of that. Does derivation depend on intent, or stipulation, or history, or material resemblance?

(EDIT: This question pretty much supersedes my post 248 just upthread.)