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Bugs in the OGL, part 1: Users, posted by CJ Ovalle

Following up on an earlier post, this one was originally going to be the second part of “Bugs in the OGL,” but I ended up finishing it first- about two months ago. =P I’m going to go ahead with it on the off-chance that I’ll be able to return to it with my second post some time.

First, I’m going to be a teensy bit critical of some users of the OGL.

The biggest problem I’ve seen:
If you use Open Game Content, you’re supposed to designate your OGC derivative material as Open Game Content. You can’t close it, and you can’t declare it Product Identity.

For some reason many people seem to ignore the definitions in the OGL. I really don’t like “definitions sections” in licenses that include words not used in other parts of the license, but that occurs in the OGL, and those terms are not shockingly very relevant to the rest of the license. The license defines “derivative material” (which only appears in the definitions section) and “‘Use,’ ‘Used,’ and ‘Using'” (which includes the creation of derivative material) in such way that the actual license indicates that when you “Use” OGC, your resulting derivative material needs to also be OGC. It’s clear as mud, and people mess this up regularly. That’s easy to do, though, because it’s not clear since it’s in legalese, and even then there are parts of the license that are kind of maddening- and of course, people can argue about different interpretations of those terms. Add that to the fact that only the expression of the game mechanics are copyrightable, and not the mechanics themselves… well, there are issues. =P Anyway, people declare stuff “Product Identity” when they really shouldn’t be doing so under terms of the license. Of course, it doesn’t help that other parts of the license strongly imply that you can declare just about anything product identity; it’s something of a nightmare, and adds to the risk of OGL users.

(As an aside, OGL definitions of “derivative material” and “distribute” are a bit confusing since those terms have meaning under copyright law already; it’s not quite relevant to how the license is used except to add to the overall confusion, just an interesting thing to possibly examine at another time…)

Another mistake people make:
No terms may be added or subtracted from the license that the license doesn’t call for.

This part of the license includes your adding additional requirements for the use of your contributions. You can’t say that anyone using your Open Content needs to contact you, for example.

This part of the license also includes your clarifications or interpretation of copyright law, when those clarifications act as terms that further restrict open content. No, I don’t necessarily need written permission to use your content- even thought it’s standard boilerplate in many print publications, it’s just as untrue under standard US copyright law as it is under the OGL. That one, at least, is a bit understandable; it’s also a regular misconception/deceptive wording/wishful thinking on the part of many regular publishers, who are often advised by their counsel to claim as much as they can, even though it’s not true by the letter of the law. =P The OGL does place some restrictions on material that I wouldn’t necessarily have otherwise that would require me to receive written permission (using PI or trademarks), but it doesn’t restrict everything.

What’s good for the goose…

Some developers use the OGL, but then get publicly unhappy when other people use their Open Content in ways allowed by the OGL. Huh wha? Yes, this might be your blog and these might be your forums, and you have every right to make the rules there- but disallowing OGL material and links to OGL material is kind of a jerk move. One of the points of the OGL is using and sharing open game content. You benefited from it; others should also be able to use that material as well. People I *really like* do this occasionally, and it bugs me. =P

You need to include a copy of the OGL with your product if you’re using the OGL.

Pretty straightforward, but in the past I’ve seen people do otherwise… and some Web sites should really have at least a local link to the OGL available with their Open Content.

Bonus question! If I’m a third party not using the OGL, can *I* use Product Identity in such a way to indicate that a certain product is compatible with a certain system, since there aren’t any restrictions on MY use of the trademarks outside of standard law?

There’s been a bit of OGL-related talk in the Internetosphere recently, and I’ll mention some of that in later posts.

2 Comments

  1. JR

    Above you wrote:

    No, I don’t necessarily need written permission to use your content- even thought it’s standard boilerplate in many print publications, it’s just as untrue under standard US copyright law as it is under the OGL.

    In the truest sense of the word you do not need my permission to “use” my content if by use you mean “read”, “listen to”, “enjoy”, etc … BUT if by “use” you mean any of the following: “copy”, “modify”, “distribute”, “rent”, “lease”, “lend”, “publicly perform” or “publicly display”… then you absolute do need my permission.

    US Copyright Law Section 106 says:

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (1) to reproduce the copyrighted work in copies or phonorecords;

    (2) to prepare derivative works based upon the copyrighted work;

    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

    NOTE THAT THE RIGHTS TO AUTHORIZE THESE USES ARE “EXCLUSIVE” … ONLY I CAN AUTHORIZE YOU TO DO THESE THINGS WITH CONTENT THAT I CREATE.

    Posted on 03-Sep-11 at 5:18 pm | Permalink
  2. Sorry I missed this comment!

    No, I really don’t need written authorization for at least some of those uses (and caps don’t help your argument). ^_- There are two main reasons in this particular situation.

    One, the OGL is a license. Licenses and contracts trump copyright law. That is, the license provides additional permissions and restrictions that aren’t covered by ordinary law, which doesn’t necessarily apply. My point there, and rereading it I see I could have been more clear, is that because the OGL says you can’t add or remove terms to it, you can’t add or remove terms to it. This includes requiring written authorization- adding such a term is against the OGL.

    Two, and what you’re responding to regarding regular copyright law- while the rights are exclusive, they are also limited and subject to exemptions. Your post references those exemptions, actually- those exclusive rights are subject to the exemptions in 17 USC 107-122. Those exemptions are an important part of the law, as important as the exclusive rights themselves. People skip them too often in colloquial copyright discussion. In the undergrad class I teach, I define copyright like this:

    Copyright is a set of exclusive, limited, and divisible rights and exemptions to those rights, designed to provide an economic benefit to creators for the ultimate benefit of the public.

    For example the first exemption you cite, 17 USC Section 107, is the broadest- fair use. For that example, if my use is fair I can make use of your material without your authorization- and even against your wishes. We have fair use for things like commentary, criticism, news, and education; it partly reflects out first amendment rights under copyright law. Now, we can argue whether or not a given use is fair, but that’s a different argument; assuming my use is fair, it’s not infringement. There are many other important exemptions as well, so it’s definitely not correct to simply assert 17 USC 106. I don’t need your authorization to make use of those exemptions. The idea that authorization is required for all uses of material is generally wishful thinking, deceit, strategy or just being wrong about it (the latter two I think are usually what happens). Like I mention, attorneys often tell their clients to include such terminology. They don’t suggest it because it’s strictly correct- it’s not- but because it sends a message that the copyright holder is serious about their copyrights. But, not all publishers do it, and some publishers have actually gotten better about it.

    Now, this doesn’t mean that I can copy everything in whatever manner I choose- the specific act has to fall under one of those exemptions. Again, using fair use- if I take an excerpt from your book in order to write a critical review, I don’t need your authorization to do so. That’s why the boilerplate statement isn’t true. Hopefully this comment clears up what I was referring to.

    Also, for uses that don’t fall under an exemption, I don’t necessarily need anything so formal as written authorization, although I personally would prefer it.

    Posted on 13-Sep-11 at 9:25 pm | Permalink

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