OGL and ORC; A Marriage made in Heaven?

[pemerton]

Okay, I think we're getting down to the crux of the issue, here. Section 3 states that you accept the terms of the OGL (which sounds like acceptance of an offer) if you use Open Game Content.

No it doesn't. It says that "By Using the Open Game Content You indicate Your acceptance of the terms of this License."

The phrase "the Open Gaming Content" (emphasis added) fairly clearly refers to the content that the offeror has designated, in their offer, as OGC.

So, presuming I'm understanding you correctly, a breach of the OGL essentially does nothing unto itself, but rather opens the breaching party up to possible litigation...not from the owner of the OGL (i.e. Hasbro), but from other entities whose Open Game Content is used in the breaching product (provided it's not corrected within thirty days)? Given that, what's the practical aspect of "termination" of the License for a breaching party?

If the licence terminates then the licensee forfeits the legal powers and permissions they enjoyed under the licence. This includes the permission to use the licensor's copyrighted work. So the licensee might find themself infringing the licensor's copyright. I wouldn't describe that as "essentially nothing unto itself". That's what private law instruments do - they establish and define the legal relationships between those who are party to them.

 

[Alzrius]

No it doesn't. It says that "By Using the Open Game Content You indicate Your acceptance of the terms of this License."

The phrase "the Open Gaming Content" (emphasis added) fairly clearly refers to the content that the offeror has designated, in their offer, as OGC.

Right, but that section is "Offer and Acceptance," which makes it sound like Using (which as per Section 1(g) includes creating Derivative Material, which as per Section 1(b) seems to indicate includes copyrighted material that wasn't preexisting, and so includes Open Game Content original to that work as per Section 8), Open Game Content indicates acceptance of an offer implicit in the OGL itself. You're saying that's not correct?

 

[pemerton]

Right, but that section is "Offer and Acceptance," which makes it sound like Using (which as per Section 1(g) includes creating Derivative Material, which as per Section 1(b) seems to indicate includes copyrighted material that wasn't preexisting, and so includes Open Game Material original to that work as per Section 8), Open Game Content indicates acceptance of an offer implicit in the OGL itself. You're saying that's not correct?

I'm not sure I follow.

If I publish a work that contains material that is derivative of the 5e SRD, and if the bit of that SRD that my material is derivative of is OGC as per the statement in that SRD that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License", then I have accepted WotC's offer to licence that OGC to me and to permit me to use it, including by publishing material that is derivative of it.

That does not put me into a contractual relationship with Evil Hat.

If I publish a work that contains material that is derivative of the Evil Hate Fate Core SRD, and if the bit of that SRD that my material is derivative of is OGC as per the statement in that SRD that "All content in this document is considered open content", then I have accepted Evil Hat's offer to licence that OGC to me and to permit me to use it, including by publishing material that is derivative of it.

That does not put me into a contractual relationship with WotC.

 

[Alzrius]

I'm not sure I follow.

Let me try again, breaking this down into the individual points that I'm raising:

1) The title of Section 3 is "Offer and Acceptance." This seems to imply that the OGL as written contains an offer.

2) The rest of Section 3 reads, "By Using the Open Game Content You indicate Your acceptance of the terms of this License." This seems to state how one accepts the aforementioned offer.

3) More specifically, you accept the offer by "Using" the Open Game Content.

4) "Using" is defined in Section 1(g) as, "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content." So creating Derivative Material that didn't previously exist counts as Usage.

5) Compounding this, Section 1(b) defines "Derivative Material" as "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." Because this says "including derivative works [et al]" rather than "only derivative works" (or something similar), that seems to suggest that it doesn't have to be only derivative works of copyrighted material; any copyrighted material will do, including original material.

6) As such, "Derivative Material" of Open Game Content includes original Open Game Content (as counterintuitive as that sounds).

7) Hence, creating original work which is subsequently released as Open Game Content (and identified as such per Section 8) under the Open Game License constitutes acceptance of the offer mentioned in the title of Section 3.

8) This holds true even if no Open Game Content from any other OGL product is used in your OGL product (in which case the only things in your Section 15 are your product's copyright notice and the OGL copyright notice).

9) With all of that determined, the only question left is who made the offer which you're accepting. I'm not sure there's any other answer than WotC.

Hopefully that makes what I'm trying to outline clearer.

 

[pemerton]

Let me try again, breaking this down into the individual points that I'm raising:

1) The title of Section 3 is "Offer and Acceptance." This seems to imply that the OGL as written contains an offer.

Not quite. When a person who owns some copyrighted text offers to licence that text to all the world on the terms of the OGL, then section 3 sets out the basis on which acceptance of that offer can occur.

The offer is made by the owner of the copyright in the OGC. The acceptance occurs upon using that OGC with the intention, in doing so, to enter into the licence agreement. (There can be technical questions about whether "intention" is quite the right concept, and exactly how it is established, but I don't think they matter to this discussion.)

2) The rest of Section 3 reads, "By Using the Open Game Content You indicate Your acceptance of the terms of this License." This seems to state how one accepts the aforementioned offer.

3) More specifically, you accept the offer by "Using" the Open Game Content.

4) "Using" is defined in Section 1(g) as, "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content." So creating Derivative Material that didn't previously exist counts as Usage.

You haven't considered which OGC must be used to constitute acceptance of the offer; nor who the offer is coming from and hence who the contract arises between.

5) Compounding this, Section 1(b) defines "Derivative Material" as "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." Because this says "including derivative works [et al]" rather than "only derivative works" (or something similar), that seems to suggest that it doesn't have to be only derivative works of copyrighted material; any copyrighted material will do, including original material.

6) As such, "Derivative Material" of Open Game Content includes original Open Game Content (as counterintuitive as that sounds).

What you say here about the interpretation of section 1(b) does not seem very plausible. The reason for mentioning "copyrighted material" is to make clear that material in which copyright is not or cannot be enjoyed (perhaps because it is in the public domain) is not capable of being OGC. Of necessity, OGC is content in which someone owns the copyright.

But in any event, it doesn't matter. Using OGC includes both reproducing that content, or publishing content that is derivative of it. Either thing is sufficient to accept the contract.

7) Hence, creating original work which is subsequently released as Open Game Content (and identified as such per Section 8) under the Open Game License constitutes acceptance of the offer mentioned in the title of Section 3.

This is not the case. When Mongoose or Evil Hat publish their SRDs and offer to the world to license them on the terms set out in the OGL, they are not using any of the OGC in respect of which WotC made an offer. They do not enter into any legal relationship with WotC except as I set out above: (i) they are obliging their licensees to reproduce, under certain circumstances, text in which WotC claims the copyright; and (ii) they are conferring a permission on their licensees to use their OGC not only under the terms of the OGL v 1.0/1.0a, but any other version of the licence that WotC might publish pursuant to section 9.

Hopefully that makes what I'm trying to outline clearer.

Your analysis is mistaken for the reasons I've set out.

 

[gweinel]

If ORC acts as an umbrella for different game systems that means that as a creator you can use mechanics and rules from every system you want? For example could you use a mechanic that you found in Paizo's SRD and a mechanic from Chaosium's SRD and put these in your product?

 

[Alzrius]

Your analysis is mistaken for the reasons I've set out.

Thanks for taking the time to critique my flawed interpretation; I appreciate the insights.

 

[glass]

If ORC acts as an umbrella for different game systems that means that as a creator you can use mechanics and rules from every system you want? For example could you use a mechanic that you found in Paizo's SRD and a mechanic from Chaosium's SRD and put these in your product?

The licence has not been written yet, but presumably.