<<Actually Lee it doesn't say "you have to clearly designate the open stuff" it says: "...You must clearly indicate which *PORTIONS* of the work you are distributing are Open Game Content". (I've stressed that not WotC)
>>
Right. So? You have a covered work. Portions of it will be PI. Portions of it will be OGC. You designate which portions are OGC. The point?
<<IANAL but surely the legal definition of the word "portions" can not differ that much from the English definition of the word. I read portions as meaning some parts, and believe that this means that a publisher using the OGL can say that one or more parts of his/her work is OGC. And if some parts *can* be defined as Open Game Content then other portions must by definition be non-OGC.>>
Right. They won't be OGC. They'll be PI. Look at the definition of OGC.
The part you just typed up says that you have to mark the portions that are OGC. That's like saying "highlight your zip code in green". It is not defining OGC. It is telling you to mark it. The definitions section _defines_ OGC. And it's definitions make it clear that OGC is everything that is not PI in the covered work. If something else in a book is not OGC and not PI, then if you handled it appropriately it is _not_ part of the covered work, and except for a few clauses of the OGL, it is not governed by the OGL at all. It's not a 3rd type of content in the covered work. It is non-PI, non-OGC _OUTSIDE_ the covered work.
<<I'll just
say that anything not defined as OGC is not, in my opinion, offered for reuse under the licence. >>
Who said it was? Not me!
<<And I wouldn't expect to have a right to reuse it (even if it wasn't defined as PI) as
you seem to be saying (unless I misunderstood you).
>>
No, I would expect that if you defined everything from page 1 to page 100 as a covered work and then defined pages 1-33 as OGC and 50-100 as PI, then there are pages 34-49 unmarked.
I would contend, first and foremost, that you just violated the terms of the license. Whether I can use that unmarked stuff is secondary.
Now, if you don't explicitly _say_ that pages 1 to 100 are the covered work, then I _might_ be able to infer that you consider pages 1-33 plus pages 50-100 as a single covered work, and you are applying the license to that. Whether or not you can excise pages 34-49 as a separate work, or whether you can otherwise declare pages 1 to 100 as a compiled work of some form would be, in the end, up to a court of competent jurisdiction, if you failed to explicitly declare it yourself.
<<I know that you are not the only person to say that the OGL covers all the words in a document so there must be some sort of thing that makes people have this view. >>
I didn't say it covers all the words in a document. I said it covers all the words in a covered work. It depends on how you define "document".
If you have a book of just text, no PI, no art, nothing. It's a group of essays. You apply the license to essay 3 and say that essay 3 is covered by the OGL. To handle it properly, all of essay 3 should be OGC.
That says _NOTHING_ about the rest of the book. You didn't apply the OGL to the othered works. They are almost entirely outside the scope of the OGL (except that you are abound by clauses that refer to doing things "in conjunction with" an OGL covered work.
What makes me think that everything in a covered work is OGC or PI? The definition of OGC.
OGC means the work covered by the OGL except the parts that are PI. Read the definition. That's very clear. Except for the parts that are PI, if a work is covered by the OGL, everything else is OGC. That you must mark it would in no way detract from that definition.
I could say "you must clearly draw a line around your property in yellow paint." Newsflash. Your property is not determined by the yellow line. It's determined by the surveyor's reports in a public office discussing your rights and title to the land (at least in most of the places I've lived).
The definition of OGC says that what you mark as OGC is OGC, but it ALSO says that everything in the work is OGC except the parts that are PI. Since you must own PI to declare it, you can't go back and declare someone else's OGC'd text PI, because you don't own it.
<<As you know more about the law that I do perhaps you could enlighten me to what
sort of legal logic has changed section 8's "portions" into "everything that is not defined as PI". >>
I'm a public policy wonk and I work in civil rights. Contract law is not the stuff I draft policy for. I've just read a fair number of cases on IP law. I'm not an expert. I'm just doing a close reading of the license and trying to apply basic premises of contractual construction:
* as much as possible, try to read the license so that everything can be read so as not to be mutually exclusive of other clauses (i.e., don't construe the first paragraph in such a fashion that it violates the fifth paragraph, etc.)
* if there's a definition, make sure that you pick a reading that satisfies all parts of the definition
<<Surely even if US lawyers hold this opinion, it wouldn't be shared by lawyers in
other countries, so an opinion about this by a non-US lawyer would also be interesting to me.
>>
Me too. Sort of makes me wish I were an IP lawyer instead of a social scientist.
<<I would have thought that people wanting to use content from a product, would only have the right to use things clearly defined as Open Game Content and not anything that is not clearly defined as PI as you seem to be implying.>>
That's what the definition implies, but really, it's a question of precision. If you explicitly say that essay 3 in a book of 10 essays is "a work covered by the OGL" and then you don't declare it 100% OGC and PI then you just violated the license by my reading.
If you don't define what is the covered work, we may well assume that everything that's OGC + everything that's PI is the covered work. But we could only do that if the stuff you are marking could be construed as a work, and if we could construe the stuff that you left out to be a different work or not part of the covered work.
I am not certain that every judge is gonna buy that word 3 in paragraph 2 is not part of the covered work if you try not to leave that as the only unidentified part of a covered work.
A court probably would buy that your text could be construed as one work while artwork could be construed to be separate works, that are merely presented together in a compiled format. Allowing you to declare the text the covered work, but not the art elements.
<< I don't think you will find many publishers that would agree with that definition.
>>
Honestly, it matters little what publishers think in the end. It matters what courts think in the end. And I think the best way to guarantee that you are safe in court is to stick to a close, conservative reading of the license.
The point of saying that "there's no third type of content" is that anything not marked as PI or OGC must not be in the covered work. And that has implications for the restrictions in the license and for some other outside OGL-compliant trademark licenses, I'm guessing. Woodelf caught that immediately.
The point is _not_ that a whole book can't have parts that are covered and parts that aren't. If you think that's what I mean, then I don't.
The point is, that parts of a book might be OGL-covered, and parts might not be, and a lot of the restrictions in the OGL and in OGL-compliant trademark licenses might need to be closely examined with that construction of the license in mind.
If you grasp my point and if I've made myself clear enough (which I might not have) then, with a loose reading of the license, you'd de facto end up being able to do a lot of the things you are probably currently doing. With a strict reading of the license, however, you'd see that by not marking everything in a book either OGC or PI (leaving nothing out), then depending on what a judge may infer from that one or more of these must be true:
a) you are defining a sub-section of the work to be a separate, stand alone work, which is going to be covered by the OGL; meaning the book as a whole is NOT a covered work, only parts of it are covered by the OGL
b) you are not defining a separate sub-work, but you have instead failed to carry out the terms of the license and you are in violation, and need to go back and mark things appropriately
Most of the time, I'd _guess_ a court would allow you viewpoint "a" above, and that they'd give you a lot of leeway declaring what is and is not a single "work", what is and is not a compilation, and what is or is not the covered work within a compilation.
<<As for "zip codes" they have already been defined (either by the US post office or maybe the US government I would have thought). >>
So is OGC. In the definitions section. Part of that definitions section calls upon the marking requirement, but part doesn't. The definitions section says what OGC is. The marking section merely tells you to mark it.
The definitions section defines what OGC is and is not. Everything else may clarify that or tell you what to do once you've defined it. But they do not supercede the definitions.
Consider this. If you got rid of all references to "clearly declaring OGC", but kept the parts about marking PI, then if you said, "X is a covered work", you'd still be able to pick out the OGC. Because it would mean the entire covered work minus the PI.
Clearly marking things helps clarify for the end user what is OGC and what isn't, but in cases where there's no compilation, only a single work, and the work is covered, clearly marking adds nothing to the definition of what is and is not OGC.
Clearly marking really helps given that works can contain sub-works. By marking your OGC and PI, OGC+PI => covered work by implication. That might help people from getting into debates about whether unmarked stuff is actually part of the covered work.
I think somebody (maybe Ryan and Alec) debated this at one point, and somebody (memory failing, maybe Ryan) claimed that if you covered a work with the OGL and marked none of it as either PI or OGC, you'd be declaring it all as 100% OGC.
I'm not gonna go that far. I'm going to say that you are clearly violating the license if you define X as a covered work and X is not 100% OGC + PI. However, if you define X to be a covered work and then leave parts unmarked, it's unclear whether you have ceded that over as OGC, or whether you have just failed to mark stuff appropriately. I think the danger of the "oops, you just declared stuff as OGC, and are just in violation for failing to have marked it" is a real one.
But I'm not going that far. You may have failed to clearly define what the covered work is. I therefore think it's useful to explicitly define the scope of coverage when you are applying the license to complicated content that might be construed as mixed. It not only adds some clarity and a small bit of additional cover-your-butt protection, it may give you added freedoms from some of restrictions of the OGL to do things in the areas of a compilation not covered by the OGL.
Lee
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