By agreeing to the OGL's terms and placing it on your product, you've agreed not to use Product Identity.
Product Identity is defined above as [a long list of things], and does not say those things have to be from an OGL work, only that Open Game Content is excluded from them and that people can declare any other trademark as being Product Identity.
Technically, the way it's worded, it can be read as saying that by using the OGL, you agree not to use [logos, identifying marks, places, locations, spell names, and so on] from any product without the permission of the owner of said content.
What's unreasonable or impossible about that?
That's always been my assumption as to how the OGL was set up - you can play around without wondering about copyright issues (by following the pretty simple copyright requirements of updating the license), but you can't make things complicated by also including other people's product identity without their permission.
If you want to produce something that includes other people's product identity and dont want to get their permission then the OGL isnt for you. You can still try your arm and rely on winning a legal dispute, but you could always do that anyway.
Using the OGL is more than just being allowed to do stuff, it's not just a granting of rights. It's paying a price as well - namely making various undertakings about using other people's work and allowing others to use some of yours.
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Nathanael, I'm not looking to start a flame war here, and as I've said a few dozen times I'm no lawyer, but can you provide any examples of "open game content" from before the OGL was created by WotC? It seems like you said I was flat out wrong and then went on to explain that "open game content" is legal terminology that's only relevant to the OGL.If a book states that it uses no open game content, it still falls within the legal purview of the OGL. I know, it sounds crazy, but "open game content" is an OGL term. (It's totally weird, that's why you want to employ legal counsel.)This is not true in any way shape or form. A product is only affected by or subject to the terms of the OGL if it is published using those terms.
There is no back door in to claim that WOTC products which they published without open game content included are somehow affected by the terms of the license because they specifically stated that they are not.
You cannot use any of the information from Ghostwalk or other WOTC products that are not open content in OGL material at all. They are legally not bound or in anyway affected by the terms of that license and are not under any legal "purview" thereof by stating that they are NOT employing the license.
Unless the OGL is printed in the book that book is neither restricted by, nor protected by the OGL in anyway.
Remember, the OGL is a protection for you as the small publisher that if you abide by its conditions it will protect you from lawsuit.
The Fudge legal notice from 1995 for the Fudge system from 1992. . . Dominion "opensource" roleplaying from 1999. . . all of which are based in the "opensource" licenses that originated for freeware and shareware from the early days of computing?
Just because WOTC Open Game License (written in 2000) is the best known example of open gaming does not mean it is the origination of it.
Just because a product mentions "Open Content" does not in anyway put it under a specific publication license.
If I say "This is not a fish" that doesn't inherently make it connected in anyway to fish.
If I say "This product isn't free" in the text of a book it doesn't somehow cause that book to be covered by rules for free books.
I maintain my statement-- a legal notice from WoTC that says "This contains no open game content" does not mean that the OGL has ANY bearing in a legal battle involving that work.
By agreeing to the OGL's terms and placing it on your product, you've agreed not to use Product Identity.
Product Identity is defined above as [a long list of things], and does not say those things have to be from an OGL work, only that Open Game Content is excluded from them and that people can declare any other trademark as being Product Identity.
Technically, the way it's worded, it can be read as saying that by using the OGL, you agree not to use [logos, identifying marks, places, locations, spell names, and so on] from any product without the permission of the owner of said content.
What's unreasonable or impossible about that?
That's always been my assumption as to how the OGL was set up - you can play around without wondering about copyright issues (by following the pretty simple copyright requirements of updating the license), but you can't make things complicated by also including other people's product identity without their permission.
If you want to produce something that includes other people's product identity and dont want to get their permission then the OGL isnt for you. You can still try your arm and rely on winning a legal dispute, but you could always do that anyway.
Using the OGL is more than just being allowed to do stuff, it's not just a granting of rights. It's paying a price as well - namely making various undertakings about using other people's work and allowing others to use some of yours.
Besides which the very act of publishing in any form you are essentially agreeing not to use logos, identifying marks, places, locations, "and so on" from ANY content. . .
I can't write and publish Mickey Mouse stories, or stories in Westeros, or use the Coca-Cola logo in my publishing regardless.
What I can use are the spell names, character class names, text describing abilities, ect that are Open Content which takes away all the effort of generating THAT content and leaves me only having (or getting) to fill in and rearrange those things without any fear that WoTC or anyone will sue me for copy and pasting chunks of text from the SRD or for having an NPC who is a Wizard, casts Magic Missile, and has the Empower Spell feat.
Edit: Steve and Matt-- I realize that I quoted your post to respond to Richard's question-- just adding onto your argument.
Chief Technical Officer
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Isn't that just an impossible agreement?
Richard
If you think it is impossible for you to abide by the terms of the OGL, I would suggest you not agree to it.
I think it's a very reasonable agreement that offers a lot of value and really doesn't ask all that much in return.
It's not always clear, though, Vic, and as I said in the rest of my post which you didn't quote "all 3pps try very hard to get this sort of thing right".
That's what these discussions are trying to do, from my P.O.V. anyway, try to understand it and try to get it right.
If you see what has been written earlier certain interpretations of the agreement seem to make it impossible to adhere to. It was a natural question for me to ask. Picking on my *question* and then saying, effectively, "if you don't like it, mate, f*** o**" is a bit unfair.
Richard
Honestly, what I'm hearing from you in this thread is that the OGL is either too difficult to understand or too difficult to execute, yet you are unwilling to engage legal counsel to advise you on how it works or how to execute it. My advice to you is that if you are unwilling to do that, you should really not use the license. Crowdsourcing your legal advice will, at best, get you answers your shouldn't trust, and at worst, will get you contradictory answers that have you going in circles—and I see both in this thread. You're getting responses from people who seem to know what they're doing mixed in with people who clearly fear and distrust things like copyrights and contractual law, and that's just not a recipe for protecting yourself.
I'll just say it once, and then I'm out of this thread:
If you do not understand a contract, and you are unwilling to get professional legal advice regarding that contract, you really should not sign that contract. That's not me saying "f*** o**"—that's me giving you advice coming from my own experience, and given to you in what I genuinely believe is your best interest.
I maintain my statement-- a legal notice from WoTC that says "this contains no open game content" Does not mean the OGL has ANY bearing in a legal battle involving that work.
I edited your post down to the bit I'm responding to just for the sake of space.
The OGL defines the term Open Game Content in section 1(d). When the Ghostwalk credits page includes the sentence "This Wizards of the Coast product contains no Open Game Content," the OGL has bearing because that's where the term is defined.
I maintain my statement-- a legal notice from WoTC that says "this contains no open game content" Does not mean the OGL has ANY bearing in a legal battle involving that work.I edited your post down to the bit I'm responding to just for the sake of space.
The OGL defines the term Open Game Content in section 1(d). When the Ghostwalk credits page includes the sentence "This Wizards of the Coast product contains no Open Game Content," the OGL has bearing because that's where the term is defined.
If you purchase a product that says "This product has no warranty" are the terms of a warranty the company offers on some other product relevant?
If you purchase a product at a grocery store that says "This product is not organic" do the FDA rules regulating what can be labelled organic apply in anyway?
If you purchase a supplement that states "this has not been approved for X or any other purpose by the FDA" do the laws which regulate medicine in any way apply?
Saying "This is not covered by that other thing" does not make that other thing relevant legally when discussing this.
Crowdsourcing your legal advice will, at best, get you answers your shouldn't trust, and at worst, will get you contradictory answers that have you going in circles—and I see both in this thread.
Guilty as charged*.
I'm pretty sure I've contradicted myself in this thread. :p
Set stories in Greece? Ruritania? Publish Dracula or Sherlock Holmes? Can we not use logos of the SS or the New York World? Everything you mentioned, except for careful use of the Coca-Cola logo, would be prohibited by the copyright and trademark laws of most nations. What's the border line look like?Besides which the very act of publishing in any form you are essentially agreeing not to use logos, identifying marks, places, locations, "and so on" from ANY content. . .
I can't write and publish Mickey Mouse stories, or stories in Westeros, or use the Coca-Cola logo in my publishing regardless.
That's my point. . . the OGL isn't super restrictive for asking you to not do things that you already can't-- the OGL asking you not to use anyone else's IP or PI including places, logos, ect, ect is really just reiterating something that already exists. . .
You can use Greece because its a real place, Ruritania, Sherlock Holmes, and Dracula because they are public domain. That's something completely separate entirely, and its not really applicable.
Unless you want to wait till life of the author +70 years to use material from Ghostwalk. I'd say you should be safe to do so then.
In reply to both of the above posts, does this mean that Ghostwalk needs to be treated differently to, say, the 1st ed PHB?
Richard
No, neither are OGL. I really don't get the question.
No, neither are OGL. I really don't get the question.In reply to both of the above posts, does this mean that Ghostwalk needs to be treated differently to, say, the 1st ed PHB?
Richard
The question is another way that the OP is trying to justify simply using material from non OGL sources because "people have 1st Ed AD&D clones and they haven't been sued out of existence yet" because "rules cannot be copyrighted" . ..
No, neither are OGL. I really don't get the question.In reply to both of the above posts, does this mean that Ghostwalk needs to be treated differently to, say, the 1st ed PHB?
Richard
I think he's asking if there's any difference between the two in that one is a non-OGL product which specifies that it contains no open game content and the other is a non-OGL product which doesnt specify that (because it couldnt).
I think it's irrelevant personally, Ghostwalk is just stating a fact about itself which both books have in common. Making it explicit removes any doubt but doesnt actually increase it's nonopencontentness.
In principle, Ghostwalk and the 1e Player's Handbook are of the same kind. Practically speaking, Ghostwalk is closer to the rules you would be writing in presentation, so I would be more careful.
In principle, Ghostwalk and the 1e Player's Handbook are of the same kind. Practically speaking, Ghostwalk is closer to the rules you would be writing in presentation, so I would be more careful.
But again, in principle they are both the same as the World of Darkness Vampire Player's Guide, the Star Wars Saga Edition Game, or a random Warhammer 40K supplement from 10 years ago. . .
If the principle is that you're not allowed to publish other people's work under your own name, yes.
But are World of Darkness and Warhammer 40K described with "contains no Open Gaming Content"? Ghostwalk and Star wars Saga both are, and it seems to me (as a layman) that section
13 (Termination) applies to the use of both. If you full on copied WoD or WH40k (or anything not defined with OGL terms) I think you'd still face an IP infringement lawsuit, but section 13 of the OGL wouldn't apply.
If the principle is that you're not allowed to publish other people's work under your own name, yes.
But are World of Darkness and Warhammer 40K described with "contains no Open Gaming Content"? Ghostwalk and Star wars Saga both are, and it seems to me (as a layman) that section
13 (Termination) applies to the use of both. If you full on copied WoD or WH40k (or anything not defined with OGL terms) I think you'd still face an IP infringement lawsuit, but section 13 of the OGL wouldn't apply.
To be clear, the 1e Player's Handbook contains no such statement. I see no reason Ghostwalk, the 1e PH, and Warhammer 40K would be any different, in principle. The statement in Ghostwalk is meaningless, unless you try to license Ghostwalk... which you can't, because it's not an OGL product.
See, I'm curious if that's true. (Not looking to publish 3PP, so the answer's neither here nor there to me, just idle curiosity.) The 1e PH and Warhammer 40K aren't published under the OGL; 1e PH because the OGL didn't exist, and Warhammer 40K because it Games Workshop doesn't do the OGL. I don't think the statement in Ghostwalk is meaningless, I think, given that Open Game Content (capitalized like that) is a phrase defined in the OGL, that "contains no Open Game Content" means that the whole entire book is Product Identity.
Why's that matter at all? Because the within-30-day-of-becoming-aware-of-such-breach grace period described in section 13 of the OGL applies when you use Product Identity without permission, and I don't think it does if you infringe on someone's non-OGL intellectual property. I think in a case like that they can just sue the pants off you without waiting through 30 days of no harm, no foul.
Unless you can describe a reason why you think that, I don't know how to respond to that.
Why's that matter at all? Because the within-30-day-of-becoming-aware-of-such-breach grace period described in section 13 of the OGL applies when you use Product Identity without permission, and I don't think it does if you infringe on someone's non-OGL intellectual property. I think in a case like that they can just sue the pants off you without waiting through 30 days of no harm, no foul.
Quite, the 30-day grace period is only an agreement between people at either end of the OGL (providing and using content) in the event of an OGL breach. It can't suddenly provide you a 30-day grace period against copyright infringement cases from random products by anyone else, those can still be brought against you the moment they notice you're infringing.
In the case of infringing on non-OGL property with someone whose OGL content you're using... that's a tricky one. I *assume* they would need to go via the notice and 30-day grace period if you trod on their protected Product Identity (which includes trademarks,etc.), although I haven't looked in detail to see if the OGL binds them to do that in any way. If its a case of the same person and two products, I figure infringing a completely non-OGL product while using OGC from an OGL product from the same company would technically allow them to bypass the grace period and threaten you with legal action directly.
Hopefully they'd go the C+D route before taking it to court, though, although I honestly don't know if that's actually a required first step, or if it's just when people want to play nice and give you a chance to stop before they threaten to sue. Personally I hope to never be in a position to find out :)
Thinking about it, this is probably the best argument I can think of against mixing OGL content with non-OGL "filing off the serial numbers" content unless you're really, truly 100% certain you did the latter without infringing on copyright or trademarks.
The 30 day period isn't a requirement of the OGL.
If you use my Product Identity from an OGL product I can jump straight to lawsuit as well. Of course, if you then correct the issue within 30 days of being served my lawsuit the OGL can protect you.
If you do the same using something that is not published in a product that uses the OGL (which has the OGL text and copyright notice in it and defines part of it as open content and part as product identity) then even if you do change the product before the suit gets to court and within 30 days I could still press for damages from your infringement because the OGL is not giving you any protection.
Ghostwalk falls into the latter category-- it is not covered by the terms of the OGL and if you were found to be infringing even changing the product within 30 days would not grant you any legal protection from the suit.
I don't see that the OGL provides you a 30 day protection from anyone. It just gives you 30 days to cure any breaches before your license terminates. Even if the license is still in effect, I think you can still be sued. Unless I'm mistaken, you could actually be sued and pay damages, but remain a licensee, assuming the whole drama occurred within 30 days.
Right, RJ. My point is, under the OGL (section 13 language) I don't think you can actually be sued for damages within 30 days of having been notified of whatever having transpired, you see? That is, if both parties are working under the OGL.
Edit: And provided that you show you were working in good faith by ceasing-and-desisting within the stated period.
Right, RJ. My point is, under the OGL (section 13 language) I don't think you can actually be sued for damages within 30 days of having been notified of whatever having transpired, you see? That is, if both parties are working under the OGL.
Edit: And provided that you show you were working in good faith by ceasing-and-desisting within the stated period.
Nowhere in the license does it say that you have to give 30 days notice. Only that if you don't correct within 30 days of notice being given your license terminates.
Yes-- you could still be sued even within the OGL, but correcting the issue per the terms of the license would show good faith and improve your case that damages shouldn't be paid.
Right, RJ. My point is, under the OGL (section 13 language) I don't think you can actually be sued for damages within 30 days of having been notified of whatever having transpired, you see? That is, if both parties are working under the OGL.
Edit: And provided that you show you were working in good faith by ceasing-and-desisting within the stated period.
Nowhere in the license does it say that you have to give 30 days notice. Only that if you don't correct within 30 days of notice being given your license terminates.
Yes-- you could still be sued even within the OGL, but correcting the issue per the terms of the license would show good faith and improve your case that damages shouldn't be paid.
"Of becoming aware of such breach," not "of notice being given." I think that's a meaningful distinction.