Crippled OGC Questions

[jmucchiello]

I have a different question regarding OGC. What about when a book doesn't designate OGC or PI? How do we determine what content is OGC?

If the work contains the OGL, consensus on the mailing list is that everything is OGC. If the work does not have a copy of the OGL, it is a copyrighted work derivative of WotC IP and WotC can sue them for damages if they wish.

 

[philreed]

If the work contains the OGL, consensus on the mailing list is that everything is OGC. If the work does not have a copy of the OGL, it is a copyrighted work derivative of WotC IP and WotC can sue them for damages if they wish.

That's pretty scary. So products like Way of the Witch from Citizen Games (I can't find a designation of OGC) and Materia Magica from Dark Nebulae (again, no designation of OGC) are assumed to be 100% OGC?

What legal backing is there for this? Or is it just a mess waiting to happen?

 

[jaerdaph]

Hmmm. I wonder if there is a need for an organization (perhaps even an existing one) that is actively (key word) dedicated to educating new publishers and consumers about the Open Game License, OGC, etc.

Hmmm....

 

[The Sigil]

If the work contains the OGL, consensus on the mailing list is that everything is OGC. If the work does not have a copy of the OGL, it is a copyrighted work derivative of WotC IP and WotC can sue them for damages if they wish.

That's pretty scary. So products like Way of the Witch from Citizen Games (I can't find a designation of OGC) and Materia Magica from Dark Nebulae (again, no designation of OGC) are assumed to be 100% OGC?

What legal backing is there for this? Or is it just a mess waiting to happen?

IANAL, blah, blah, blah...

(1d)"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. (Emphasis added)

This can be thought of as breaking down OGC into several branches of "stuff:"

Open Game Content means
(1) the game mechanic [which means] the methods, procedures, processes and routines [except for] Product Identity - the so-called "default" or "must be open no matter what stuff."

AND

(2) any additional content clearly identified as Open Game Content by the Contributor - this one is pretty easy to understand as it is, "anything else the publisher says is open."

AND

(3)any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity - pretty straightforward: "any work covered by the OGL that is not PI."

Let me rephrase, cutting and pasting a bit... to cut out some of the "logical branches" to get to the meaty part for our argument:

"Open Game Content"... means any work covered by this License... specifically excluding Product Identity.

Now, let's look at the context of this statement with the rest of the OGL...

2. The License: 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. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.

This one is a little bit obtuse, but here's why I included it.

If you use OGC, you must include the OGL.

Corollary: If you use the OGL, you must have included OGC (otherwise why bother with the OGL?). It's not strictly logically correct based only on "If you use OGC, you must include the OGL," but given the question in parentheses above, it seems to fall out logically.

Therefore, it is reasonable to assume that any work that contains the OGL does so because it also contains OGC. Furthermore, any product bearing the d20 logo must by terms of the d20 licence contain a minimum of 5% OGC, so in the case of a d20 product, we know for certain that there must be OGC involved. For sake of argument, let's keep our discussion to products bearing the d20 logo only. Then we know that the corollary "If you use the OGL, you must have included OGC" is true because we already have from the d20STL the premise that you must include OGC.

Now, here's the rub:

8. Identification: If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content.

Look at this carefully. This serves a dual purpose.

You are allowed under #8 to designate only certain portions of a larger work that are considered OGC. In other words, you are allowed to designate a subset of your work as "work that is distributed under the Open Gaming License." As an example, if I publish a book with 5 chapters, and declare "only the text of Chapters 1, 2, and 4 is Open Game Content" I have in effect created a designation that tells you that Chapters 1, 2, and 4 are to be considered "a work published under the OGL" - Chapters 3 and 5 are, by default, published under normal copyright law, even if they happen to be in the same physical book.

Now, let's look at point 1d again:

(1d)"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. (Emphasis added)

What I have done in making an OGC designation is designate what constitutes the "work covered by this License." (As we all know, PI allows you to make "exceptions to the rule" within a broader OGC designation and is not worth rehashing here).

However, if I do NOT specifically make an OGC designation, the only logical definition as to what constitutes (in the emphasis portion above) the "work published under the OGL" is "the entirety of the physical book."

This is, I believe, where the "legal foundation" for the concept of, "if you don't make a designation at all, your entire book is OGC" comes from.

I am not entirely sure whether I agree with this reading of the license or not - I would sure LIKE to agree with it as it would open up a lot more stuff - but I think it is of somewhat tenuous strength as a legal argument, so I'm not going to bet anything on it (including a product and possible legal trouble by trying to drop stuff in that isn't clearly OGC).

However, it also means that by a very tortured reading of the OGL, one could argue that the entirety of the MMII is in fact Open Game Content, as they did not specifically PI their monster names and they DID use the OGL... but it would be a VERY tortured reading of the OGL indeed... and one that I doubt very much would hold up in court - nor would making the attempt garner much goodwill among publishers.

--The Sigil

 

[BryonD]

That's pretty scary. So products like Way of the Witch from Citizen Games (I can't find a designation of OGC) and Materia Magica from Dark Nebulae (again, no designation of OGC) are assumed to be 100% OGC?

What legal backing is there for this? Or is it just a mess waiting to happen?

Why is that scary?

No one is forced to use the OGL.

If they want their products to be 100% open, then no problem. If they do not, but simply wanted to gain the benefits of the OGL without bothering to understand the deal, they have no one to blame but themselves. Nothing scary either way.

If you want to completely protect your ideas, don't share them, which means avoid open gaming.

 

[philreed]

Why is that scary?

Because a lot of people with no clue what they're doing are laying traps for many, many people after them.

Here's a game. I decide I want to create my own book of witches and use some sections of Way of the Witch. I make all of the text in my book OGC and release it to the public.

Six months later, someone else uses a portion of my witch book and the material is again released as OGC.

Another six months go by. Now Citizen Games notices that I used some of their content and they tell me what I used was not OGC. What happens to everyone who has used the OGC from my product (some of which is taken from Way of the Witch)?

It's a long, complicated mess when people don't follow the instructions. Kind of like firing a rocket launcher without reading the instructions (but not as much fun).

 

[philreed]

I decided to e-mail Citizen Games and get their take on what's OGC in Way of the Witch. Here's the response:

All of it is OGC.

The paragraph that contained the declaration was cut off from the end of the OGC in the layout process. All that made it in was the companies from which some of the content came from.

 

[jmucchiello]

You really should read the mailing list OGL-L@opengamingfoundation.org if you are truly interested is this kind of detail about the license. Sigil explanation of the "no OGC declartion = all is OGC" is identical to Ryan Dancey's explanation (and he is the architect of the license).

Because a lot of people with no clue what they're doing are laying traps for many, many people after them.

People with no clue are why we have warnings for the stupidest things on everything. "Do not use blow dryer in bath tub." Why would I attempt to dry something near water in the first place? Because you're clueless.

Here's a game. I decide I want to create my own book of witches and use some sections of Way of the Witch. I make all of the text in my book OGC and release it to the public.

Six months later, someone else uses a portion of my witch book and the material is again released as OGC.

Another six months go by. Now Citizen Games notices that I used some of their content and they tell me what I used was not OGC. What happens to everyone who has used the OGC from my product (some of which is taken from Way of the Witch)?

It's a long, complicated mess when people don't follow the instructions. Kind of like firing a rocket launcher without reading the instructions (but not as much fun).

This is why etiquette says you should ask about using OGC with the owner before just using it. While you are asking you can verify that your interpretation of the the OGC declaration jibes with theirs. If it doesn't you know that you are potentially entering the lawsuit zone and must proceed carefully. This is often referred to as Tainted OGC.

 

[Oldtimer]

That's pretty scary. So products like Way of the Witch from Citizen Games (I can't find a designation of OGC) and Materia Magica from Dark Nebulae (again, no designation of OGC) are assumed to be 100% OGC?

What legal backing is there for this? Or is it just a mess waiting to happen?

There is no legal backing for that. Rather, that publisher has violated section 8 of the OGL and therefore has no legal right to use the copyrighted material in the SRD and any other OGC they might have reused.

Without the cover of the OGL, their product is simply illegal and they should get smacked by lawsuits from the owners of the copyrights.

 

[jaerdaph]

Without the cover of the OGL, their product is simply illegal and they should get smacked by lawsuits from the owners of the copyrights.

The reality is, nobody's going to do that most likely because of the high cost of legal fees involved. It is ultimately up to WotC to determine if they are out of compliance with the license and do something about it.