Orcus said:
I think this is a tough question with very reasonable arguments on both sides.
Those of you who know me know that I dont usually sit on the fence. I am pretty opinionated and definately not afraid to express them. I hope the fact that I am on the fence on this tells you something.
I think it's a fair stance on your part, Clark. Part of the problem is that the wording of the license - specifically the lack of punctuation, makes certain things unclear. While I don't expect anyone to be convinced by my definition, here is how I personally (an admitted non-lawyer) "parse" the OGL to arrive at my conclusion.
(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.
I parse it this way because I believe that this is meant to be a list of things, of which any can be true, not of which all must be true (given the "any additional content" clause - if all of the above must be satisfied, the word "additional" is unneeded.
I think the second "bullet point" is pretty easy to understand... if the creator says it's OGC, it's OGC.
The third "bullet point" is somewhat problematic, but not too bad. The first part of the phrase is slightly more problematic, having given rise to the "if you don't make an OGC designation, the entire work becomes OGC," but we'll leave that aside for now. Since we're dealing with works that DO have OGC designations, that doesn't particularly matter. Tangentially, this seems to indicate that the common interpretation of the OGL as having three kinds of content: (1) OGC, (2) PI, and (3) Neither (or "closed" content) may not be correct - one COULD read this phrase as stating that all portions of a work is automatically OGC unless specifically closed as PI- though I think common use of - and interpretation by those in the industry - of a three-fold system of content, rather than a binary one (OGC/PI) probably discounts that. The second part of the phrase is clearer - anything that is a translation or derivative work of OGC under copyright law is Open Game Content. Of course, that's only as clear as copyright law itself is - and there is some wiggle room in copyright law as to exactly what constitutes a derivative work!
The fourth "bullet point" is also clear. If something is PI, it is not OGC. End of story (but see below).
The first "bullet point" is the one that seems to be throwing us for a loop. "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" suggests that game mechanics are automatically Open Game Content... but that there is an exception to that rule... that "such content {as does} embody the PI and is an enhancement over the prior art" may be removed from being OGC. I read that as a "both must be true" statement - the content must be both an enhancement and must embody the Product Identity.
Now, I have said elsewhere that I have a tough time conceiving of rules that "embody" Product Identity... and I still do, though the "sanity check" rules of CoC do seem to qualify. I do not personally equate "embodying" PI to "being" PI. In other words, I'm not convinced you can designate rules as PI - you can only remove them to "closed content" and even then only if they "embody" other PI. I think that if rules were allowed to become Product Identity, they would have just said so, rather than using the "embody" term.
The crux, to me, comes into play when we mix bullet points one and three... what happens if you have a "derivative work" (must be Open) that embodies the Product Identity (may be not Open)? Before reading Clark's posts, I would have said, "it's derivative, it must be Open." Now, I'm not quite so sure. Now, I think I would say, "all rules that fit the system will by definition be derivative, so they must have put the embodying PI exclusion in there for a reason - in other words, the embodying PI exclusion must trump the derivative inclusion in the case of rules because if it did not there would be no point in putting the embodying PI exclusion into the license in the first instance."
Having gone through that exercise, I now need to look at what PI is so I can see exactly what the two exclusions... (1) anything that is PI is not OGC, and (2) any game mechanic (shorthand for the whole phrase) that embodies PI and is an enhancement over prior art is not OGC.
I then parse the PI definition... fortunately, this is a much better-defined list of "things" as lists go, since it is commafied and "semicoloned" - I would suggest that each "semicolon" represents a break between lists of similar items, and each comma is simply used to denote different elements on the same list.
(e) "Product Identity" means
*product and product line names, logos and identifying marks including trade dress;
*artifacts;
*creatures
*characters;
*stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations;
*names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs;
*and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity,
*and which specifically excludes the Open Game Content;
Now I break these down one by one... the first one ("product {names} and product line names" etc.) is pretty straightforward... the title of a book or line may be PI - basically, the "company stuff" completely divorced from the game material may be PI.
Some may think "artifacts" is limited to a D&D-esque artifact (i.e., magical item of great power) but I think it's not unreasonable to assume the "Common Usage" of the term - any item of antiquity or thereabouts - is more appropriate. In other words, unique physical objects that have some sort of historical (or mythological / fantasy historical) significance. Regardless, it's not really a sticking point most of the time.
The next item, "creatures characters;" should, I suggest, be read as two separate items and considered a typo. No reason to split hairs here. What a creature is - any living thing, usually one that can move or think on its own (distinguished from grass or trees or other plant life) is pretty straightforward, as is a "character" (a creature with a name or nickname or that has some sort of special significance in the story/work). More or less straightforward.
The next bullet point deals, IMO, with the "non game-mechanical stuff" included in a work - stories, likenesses, et al. In other words, the part of an RPG book that does NOT read like a technical manual.
Of note is the term "thematic elements" (more on this in a moment).
The next point... "names and descriptions of..." etc. is also straightforward. If you give pretty much anything a name, the name can be PI (even if the rest of the item cannot). In this one instance, I do not parse a semicolon as a new list (between "special abilities" and "places") since it is clearly impossible to PI a place or location - only the name and description of that place or location can be meaningfully PI'd (since the location itself usually does not actually exist). Furthermore, I look down the list at "magical or supernatural abilities or effects" and note that since "spells" are the quintessential example thereof, and only the "names and descriptions" of spells - but not the associated game mechanics - may be declared as PI, it seems reasonable that for a consistent reading of the license, the "only name and description" clause should continue to apply to magical abilities or effects. Furthermore, since logos and symbols themselves have already been provided for being declared as PI in the previous bullet point, it stands to reason that this is trying to add something different to the list... the "name" of a logo is different from the "logo" itself and seems to be the only reading that gives two different items, rather than one redundant one. The same applies to "characters" and "creatures" - already allowed for elsewhere, the only reason for including them here is if you are trying to include the NAME as a PI-able item, not the creature/character itself.
Of note is that someone who does interpret the semicolon in the above as starting a new list could argue that it is possible to PI not just the name of, but an entire magical ability (game mechanics, too). However, for reasons above, I reject this reading, based on the fact that it generates a ton of redundancy of definition and flies in the face of previous sections... it allows the same text to be "un PI-able" or "definitely PI-able" depending on whether or not the text is referred to as a "spell" or as a "magical ability" (I would contend that "spell" being a subset of "magical ability," it is clear that the intent should be to align "all other magical abilities" to the same rules as "spells").
Finally, it includes trademarks that the trademark owner wishes to designate as Product Identity. This is perhaps somewhat redundant in practical usage, given that Section 7 forbids the use of trademarks without a separate agreement anyway, but it is a separate and distinct item on the list.
*whew*
After going through all that, I then look back at what I have figured out about Product Identity to better understand what must be OGC. We know that anything dealing with game mechanics must be OGC unless it meets one of the following:
(1) anything that is PI is not OGC,
(2) any game mechanic (shorthand for the whole phrase) that embodies PI and is an enhancement over prior art is not OGC
I should immediately note that I do not think that (2) can be satisfied simply by referring to "the mechanics that describe the spell/creature/character named X." I would suggest that in that instance, the name "embodies the rules," rather than vice versa. In other words, "fireball" embodies "1d6 points of damage per level to a 20-foot spread" but "1d6 points of damage per level to a 20-foot spread" does not embody the potential PI'd spell name "fireball." So merely giving something a PI-able name is, IMO, not sufficient to call the mechanics associated with the thing as PI.
Having derived general rules for treatment of subject matter, now I can consider things on a case by case basis... for example, the spell template discussed earlier.
Premise: A spell template contains game mechanics.
Premise: Game mechanics must be OGC unless (a) they are PI or (b) they embody the PI in the product and are an enchancement over prior art.
Premise: The spell template is (demonstrably) not declared as PI.
Conclusion: The spell template must be OGC unless it embodies Product Identity in the product and is an enchancement over prior art.
Premise: The spell template is an enhancement over prior art. (By which I mean that it expands, clarifies, changes, or otherwise "adds value" existing rules/OGC).
Conclusion 2: The spell template must be OGC unless it embodies Product Identity in the product.
The question then becomes, "does the spell template embody Product Identity?" (Remember, I feel that a simple PI'd name that names the spell template itself is not sufficient to satisfy this requirement - which is a moot point anyway because, I believe, the spell template names are not declared as PI anyway - though, I could be wrong).
That's the question I have to answer to know whether or not the spell templates can be closed... "do they embody PI contained somewhere in the work?" (Not: do they embdoy closed content somewhere in the work - the OGL explicitly states that they must embody something that IS - not something that could be but isn't - Product Identity). That is left as an exercise for the reader. I myself have not examined the book, but I suspect I would not find Product Identity that the spell templates embody, hence my belief that the spell templates SHOULD (in a legal compliance with the OGL terms sense, not in a "moral" sense) be designated as Open Game Content... and could possibly construed as "forced" to be such by the OGL and re-used, regardless of Monte's designation (though a warning - that would be using "polluted OGC" and you had best be willing to stake a lawsuit on it).
Again, IANAL. This is not legal advice. This is simply my personal opinion of how I feel the OGL should be interpreted in general and in this specific case. If you want a more binding view, consult your own IP lawyer. Hope it makes sense (it's wordy, I know).
--The Sigil
