[od-discuss] Open Game License 1.0a for approval

Wed Oct 23 19:16:58 UTC 2013

On Wed, Oct 23, 2013 at 12:23 AM, Kent Mewhort <kent at openissues.ca> wrote:
> Astute point Federico. Perhaps we should be rejecting any "license" that
> tries to impose obligations through contract that would not otherwise be
> imposable through copyright, trademark, or other IP rights.
>
> The recently
> rejected Calgary license is a prime example of this, where the "license" was
> intermingled with the contractual terms of use.  In this case, the terms
> stated "If you access, use or download any of the datasets (&"Data")
> provided by The City of Calgary (&"The City") on this website (&"Site") you
> accept and agree to comply and be legally bound by [this agreement]".  These
> terms would likely apply irrespective of whether you did anything to
> implicate copyright in the work.
>
> The Open Game License isn't quite clearly as founded in contract as the
> Calgary license -- it's labelled as a license throughout and leads off with
> a copyright notice -- but it's overall a bit questionable.  In particular,
> it seems that the "Offer and Acceptance" and "Grant and Consideration"
> sections are attempting to make the terms apply through contract in addition
> to copyright.  The inclusion of non-copyrightable "methods, procedures,
> processes and routines" add fuel to this fire.
>
> I'm not sure this flaw clearly fails the current Open Definition, so we
> should probably think through this a bit more for 1.2.  Also, a bit
> problematically, I think some already-approved licenses suffer the same
> flaw.  For example, the OGL Canada states "Use of any Information indicates
> your acceptance of the terms below" and "Information" is defined as
> "information resources protected by copyright or other information that is
> offered for use under the terms of this licence".  The UK OGL, even though
> only slightly different, should be fine; it defines "use" as "doing any act
> which is restricted by copyright or database right."

ODbL?

(BTW, I don't know if there's any record of conformance decisions
prior to the archives of this mailing list, but if anyone has records
leading to conformance decisions on pre-2010 licenses, would be great
to document on the site.)

I think contractual restrictions are just fine with regard to
conformance, so long as within bounds of restrictions permitted by the
Open Definition. If a restriction makes a license or license-like
instrument non-open, it shouldn't matter whether the restriction is
based on lack of adequate carve-out permission from default regime, or
imposed by other means.

> Anyways, as for the Open Game License, I'd like to hear more comments on
> this issue.  If everyone will permit, I'll retract and reserve for now my
> vote until this previously undiscussed issue is worked out.

Certainly!

On Tue, Oct 22, 2013 at 12:34 PM, Herb Lainchbury
<herb at dynamic-solutions.com> wrote:
> It might be out of scope for the OD to address the idea that facts have no copyright protection but I would like to see this addressed somewhere.  I myself am not 100% clear why licensing is required for something that has no protection.

For..."protection". ;-)

In the case of the Open Game License, a fairly traditional protection
from competition. But nobody is obligated to accept the terms if they
believe no permission is needed for whatever they are doing.

In the case of ODbL, protection from free-riding exploitation. Or I
think more productively thought of as prototyping a pro-sharing
regulatory regime, attempted explanation at
http://gondwanaland.com/mlog/2012/01/31/copyleft-regulates/ ... and of
course nobody is obligated to accept terms if they believe no
permission is needed for whatever they are doing (and regarding the
ODbL, I still don't understand how its contract layer is effective at
all in protecting where no default restriction exists given 6.1, and
would be happy to be educated).

Mike