<<Contracts follow their own sort rules that has little to do with Written
Composition 121.
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While I can fully accept that punctuation has special meaning in statutory and contractual construction, there is no reason not to draft a contract in a manner which is wholly unambiguous wherever possible, without having to dissect semicolons to arrive at an appropriate reading. I think that ideally one should rely on the more complicated notions of contractual construction to clarify ambiguity.
Re: the OGL, some subject matter is simply missing altogether from the license, and for other areas of the OGL, parts of the community have strongly differing interpretations of existing parts.
For example, clearly the implementation of the license regarding the protectable (or unprotectable status) of chapters on game rules is not agreed upon by all game publishers and their legal teams. Larger publishers (not merely the small fry) clearly disagree on these issues, or else are abusing the heck out of the license.
Drafting this type of contract is very different than drafting other types of contracts. Rarely are potentially thousands and thousands of authors in a huge pool exchanging IP under a single contractual swap meet. There are only a few widespread exceptions (like the GPL).
With a relatively new contract of this sort after thousands of eyes have reviewed it then exceptions and questions may arise.
I don't think that's a negative swing at the drafter of the license. I think that with any license that is not trivial and straight forward, such issues are almost guaranteed after letting thousands of eyes have a gander at the language.
I doubt that unless the OGL were considerably longer that all the questions and exceptions would have been easily managed by anyone drafting the license.
So, yes, it is a given that there are rules to contractual construction, but one need not rely upon them in writing if one can achieve a similar less ambiguous effect by alternate usage.
I honestly think any other approach other than seeking clarity for the masses (if such an approach does not compromise the legal integrity of the license) is, at part, just asking for trouble. Thousands of individuals and hundreds of small press publishers without decent legal teams will deal with the license each year. I cannot fathom a reason (other than perhaps increased length of the text) why I would want them to have to take a course on contractual construction to be able to read a license which could say the same thing in simpler language.
I think if the license itself promotes a "safe harbor", it promotes it only so long as there are shared expectations and common understandings about that license.
I, for one, think that the OGL is crystal clear for 90% of all uses, and is as clear as mud for the other 10% of all uses.
Lee
