What happens to OGC which violates OGL?

[Yair]

In a thread below, regarding the equipment rules in Monte Cook’s Arcana Unearthed, a legal point was made that sent me wondering. The point in issue was the designation of open game content being unclear. What I am interested in, though, is whether this violates the OGL that the work is published under, and more generally – does a violation of the OGL renders all the OGC supposedly released by the work unusable?

If this is the case, then it seems that to rely on OGC in a commercial undertaking is problematic. You must go to the source of the OGC, and verify that all terms of the OGL were indeed satisfied, which in practice is exceedingly difficult at times. The situation would be similar to the Open Source Community, in which code is carefully monitored before it is entered into the Linux kernel – a similar organization must be constructed to monitor OGC to be put into a “community SRD”, if it is to be usable at all. (I suppose the Fantasy Netbook Council serves as a good model for this.)
In practice, this is a small industry and I don’t see Monte Cook suing anyone due to use of OGC he failed to identify clearly. But I doubt any corporation would be hasty to enter such a legally shaky commercial enterprise. This flaw in the structure of OGC “heredity” seems to me to undermine the legality of the entire Open Game Content enterprise, which can’t be good for that time when the OGL will be put to the test in court.

Am I worried for nothing?

As for the case itself (I am not a lawyer, but it seems solid for me, as a laymen), to paraphrase:
Monte Cook’s designation of open game content arguably violated section 8 of the Open Game License, namely,
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.
AU’s designation of OGC included the following sentence:
“In Chapters Six, Seven, and Eight, all the material that also appears in the System Reference Document is open, and all other material is not.”
Following this designation of open game content, then, the following sentence from AU
“If using it properly, a character can add a +1 bonus on the opposed attack roll when attempting to disarm an enemy (including the opposed attack roll to avoid being disarmed himself, if he fails to disarm the enemy).”
would not be open content, as it is not included in the SRD.
Yet, it is clearly derivative off the SRD, and as such is OGC itself. (Unlike the name of the weapon, for example, which could be – and in fact is – designated as product identity, this is purely mechanical and hence – if I understand the OGL - Uses OGC, and so must be OGC itself.)
Since the declaration of open game content is not clear, in that it defines something as OGC where it cannot possibly be OGC, it violates the above-mentioned section 8 of the OGL.

 

[Wulf Ratbane]

I think you're asking this in the wrong forum for the best answers.

If a moderator were to slide this over to the publisher's forum (where, for example, Clark Peterson might see it) you would get a more reliable answer.

My understanding is that the license doesn't give you the ability to open content that is closed by another party, nor to close content that is open by another party. Such a designation would be invalid; that an invalid designation may propagate through the use of the license doesn't change the content's ultimate status as Open or not.


Wulf

 

[Gilwen]

It would be helpful if you included more than the below quote or at least the page number where the item in question is located.

Bryan

In a thread below, regarding the equipment rules in Monte <snip>
Following this designation of open game content, then, the following sentence from AU
“If using it properly, a character can add a +1 bonus on the opposed attack roll when attempting to disarm an enemy (including the opposed attack roll to avoid being disarmed himself, if he fails to disarm the enemy).”

 

[Yair]

Bryan: I am afraid I don't own AU, I am merely paraphrasing the original argument. All that I know is that it is the Sibeccai Khopesh's description, which (I believe) reads:
Sibeccai Khopesh: This sword's blade is straight near the hilt but ends in a curve. It is only about 2 feet long but very heavy. If using it properly, a character can add a +1 bonus on the opposed attack roll when attempting to disarm an enemy (including the opposed attack roll to avoid being disarmed himself, if he fails to disarm the enemy).

Wulf: Yes, I too believe the actual Open or Closed status of the content remains unchanged (in this case, I believe, open). That is precisely my concern. I am afraid that the publishing company making use of supposedly open content, when it is in fact closed or to be precise copyrighted material not covered under the OGL, will be liable to a lawsuit on copyright infirngement.

 

[Wulf Ratbane]

I am afraid that the publishing company making use of supposedly open content, when it is in fact closed or to be precise copyrighted material not covered under the OGL, will be liable to a lawsuit on copyright infirngement.

It would depend on who is responsible for the incorrect attribution and who is suing whom. It will be up to the court to determine who is responsible for any error.

The license itself allows for a 30-day breach and cure period, to help mitigate any "disaster."

I can give you a personal example.

Publisher A inadvertently attributed my work incorrectly. Once notified, and to their credit, they immediately moved to correct the Copyright information by placing a sticker over the incorrect version.

This "cure" won't account for books already in the retail system, unfortunately, but in weighing the risks against the cost of destroying all those books, it's highly preferable.

If I were to discover my OGC again in another work (Book B), with an incorrect attribution, I would contact the publisher of Book B to correct the error. Then they would have 30 days to enact a cure.

The only real sticky point is whether publisher B seeks out Publisher A to recover the costs of their cure-- assuming they can trace the error back.

In the long run, it pays to be attentive to the licenses, the designations, and the copyrights; leave nothing to chance; and cover your own ass.

Wulf

 

[Orcus]

There are lots of interesting variations of mis-designating OGC. The situation you present is one of the easier ones.

If I understand correctly, your issue is that Monte has failed to designate some content as open that you believe the license requires to be open (because it was derived from open game content).

I dont want to get into whether or not you are right. For purposes of this discussion, lets say you are.

The question now is, what can be done with that content that is not designated as open but that you believe (or, in this case, that we presume to be) should be open.

The first issue is who can complain? The answer is only WotC. If a publisher has failed to properly designate open content you (a third party) cant contact them and get them to cure it. Well, you can, but they dont have to. Maybe they will realize they made a boo boo and issue some errata to their designation or something. But only WotC can take legal action against them.

The second issue is can you safely use the content that is not designated as open but that you believe should be open? This gets trickier. If you do and the initial publisher believes that it was properly not open content, that publisher will contact you and notify you of a violation of the OGL and will most likely cc WotC. You can then cure or complain that the content should have been open and let the courts decide the matter. Because of this risk, we have come to call such OGC "polluted," referring to either poorly defined OGC or, in this case, OGC that you believe should be OGC but that is not declared as such. Generally, you should avoid touching polluted OGC.

Please remember, I am not coming to any conclusion about whether or not the content in question here is or is not properly designated. I am just presuming it is not for the sake of explanation.

The best approach is to contact the initial publisher and say:

"I was reading product X. I was hoping to use the following OGC: [detail the OGC]. But I noticed in your designation that it was not designated as OGC. I thought perhaps this is an oversigth on your part that you might correct by an amended designation. If so, please let me know so that I can use the OGC since I really like it. I will of course credit your section 15 properly in my section 15. If, on the other hand, you believe that content is not OGC would it be possible for you to grant me permission to use that content in my upcoming work [detail work]. I would of course indicate that such content is used by specific permission and is not OGC."

The real issue arises when someone erroneously opens content that should really be closed (ie: reuses someones closed content but designates that as open content). This is a killer. My interpretation is that erroneous opening of content is never valid. That means you better make damn sure when you are reusing content that someone themself is reusing. You should always go to the original source of the content.

Clark

 

[Yair]

Thak you very much, that was really helpful. Things are clearer now

I am not really that interested in the case per se, it was just an example (though I AM pretty frustrated at Monte's OGC policy, but that's another issue altogether).

Thanks again,
Yair

 

[kingpaul]

though I AM pretty frustrated at Monte's OGC policy

What parts are you frustrated with?

 

[philreed]

OGC and Sales

While publishers, and "wannabe" publishers, might care about the OGC declaration in books I seriously doubt if it has any impact on sales. If a publisher's OGC declaration is confusing or stingy do gamers really care? If the OGC in a product do they care? No. All they care about is how cool and useful the material is.

I'll admit that I've also been frustrated by the OGC declarations of some products but since confusing (and sometimes missing) OGC declarations have no effect on sales (and there's nothing enforcing declarations) publishers will continue with their current practices.

My favorite companies for OGC declaration that's clear and easy to use? Green Ronin, Atlas, and Bastion.

 

[jmucchiello]

While publishers, and "wannabe" publishers, might care about the OGC declaration in books I seriously doubt if it has any impact on sales.

It impacts my buying. I may be one of the "wannabes" but I have stopped buying books that contain questionable, vague, or stingy OGC designations. I will not buy books that close the names of spells, feats, or monsters. If it is necessary for me to write to the publisher in order to reuse the material, then I don't want to be bothered. I'll still write the request as a courtesy, but if the designation is so obtuse that it needs clarifying, the book goes back on the shelf and I look to see what else is new.

There are several books that I originally planned to buy that upon seeing the OGC designation fell off my buy list. And since I recommend books my gaming buddies, those books don't get my recommendation either. I doubt this affects anyone in any perceptible manner, but who knows.