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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.