Licenses, sublicenses and conditions
One of the main points of concern that was… allegedly… raised a lot about ORC was whether you needed to make an SRD to use it – but honestly it can be a pretty great idea.
Licenses are by definition specific – they can be specifically broad (“You can use anything in this book.”) or specifically narrow (“You can use the spell on page 17, but not the artwork accompanying it.”) but they are specific. If you don’t specify, a court might.
Having an SRD or a bare bones version or even a budget version (no illustrations or micro-fiction) version you can point to and say “If you want to make something like this, you can use the info in this…” is incredibly useful in creating clear and specific divisions – and much less labour intensive than writing up a long explanation of what is and isn’t covered that expects you to follow a link to the Library of Congress and read 14 pages so you can understand what the terms mean.
Ideally your SRD can include your license in it, and your own intentions regarding it – since when there in the interpretation of a contract (such as a license) courts will usually look to what parties intended and to what extent they helped each other understand those intentions. Since an open license is essentially unilateral, the person offering the license is the one who has to make intentions clear.
Sublicenses and share-alike
One of the key features in ORC was that it essentially makes sublicensing mandatory for mechanics. If you use an ORC system, and you invent a new combat system, you have to let everyone else use that under ORC. This was to try to recreate the environment of “share-alike” without making people give up everything in their product ala the CC BY-SA 4.0
This is kind of nice, but also something that can be compartmentalization. There is, for example, nothing to stop you publishing the mechanics in one document in CC BY-SA 4.0 and the fluff in another document, then recommending anyone who wants to expand do the same. That can, in a sense be desirable because the distinctions clearer – which is always good.
When deciding what you want to share, also keep in mind the limitations you’re imposing.
Conditions
Generally licenses have conditions, they don’t have to but they’re generally there – implied or otherwise.
Nemo quo dat non habet
By far one of the most absurd moments in the OGL fiasco was when people (including supposedly well informed commentators who’d definitely talked to lawyers and understood everything) started claiming the mention of mind flayers and Strahd in the SRD 5.0 meant these concepts were public domain and everyone could publish hot mind flayer on Strahd action novels.
The reality is the SRD is bound, like all licenses, by the basic limitation “nemo quod dat non habet” or “One cannot give what one does not have.”. The SRD only mentions the creatures as examples, in particular spells/abilities – so it only gives permission to republish their names in those examples of particular spells/abilities. It can’t give you more rights than that, because it doesn’t have them.
This cuts both ways – you can be assured that you’re not giving them the rights to your fav self insert by mentioning them, but you also need to make sure that whatever you license or allow others to sublicense will stand up on its own and not rely upon other material outside of the license.
Again, you can compartmentalize this, you can release a bundle of three documents:
- Basic Rules that are covered under the CC BY-SA 4.0, allowing people to make adaptations of them and even sell those adaptations provided they give proper credit
- Basic Setting Material covered by CC BY-ND 4.0, allowing people to include direct copies of the material in their products they sell, provided they give credit – but not to adapt it or change it
- Sample Module covered by CC BY-NC-SA 4.0, allowing people to make adaptations and publish adaptations of the module – provided they give proper credit and don’t make money off it
In cases where you got overlap, people would be limited by the license on the product they’re citing – so setting material in the module could be adapted under the module license, but those adaptations could never be sold or used commercially. Setting material mentioned, could be mentioned but the module license would not grant the right to use/adapt the material in the Setting Material further.
Moral Rights
Both ORC and Creative Commons call for a waiver of moral rights – which is a complicated thing since depending on where you are – you may not have any or you may in fact have inalienable moral rights that will be passed on to your heirs when you die.
Simply put, they’re the right to prevent your work from being used in a cause you find morally objectionable – for example to deny your artwork to a reactionary group who wants you and everyone like you purged from the Earth.
This is important to consider since the general understanding of open licenses at this time is, there will be no “morals clause”, so if you want to have one – you’ll have to be up front and clear about it.
Cover thine ass
The most important limitations are those which limit your liability in the event of misuse or just use that some jurisdiction decides is misuse later. Even if you think your property is safe, and it is safe now doesn’t mean it’s safe now. Consider the following possibilities:
- Your property or one similar to it may be adopted by a hate group, like Pepe the Frog was despite the wishes of creator Matt Furie; or
- You may use an established symbol which is later adopted by a hate group… I mean they like to do that, a lot; or
- Your property may be used by someone who makes a deeply political work which you agree with, but a government (maybe yours) later deems “harmful” (consider the slews of anti-trans laws Republicans in the US have tried to pass; or
- You may just have the bad luck of the police and news deciding to mention the existence of your product in a story about someone who did something terrible.
Even if you are without sin (and certainly am not), it’s good to have your suitable disclaimers in there – that way if you do decide to stick it to the Man by playing martyr, you can also claim that you chose to do it. (Unless you know, you get pulled up by some jurisdiction that is being blatantly unfair/corrupt, but then well nothing was really going to help you).
Jurisdiction
You’ll notice a lot of terms and conditions, licenses, etc specify a jurisdiction about where legal action can take place (and if arbitration is required first), etc. This is pretty common with major companies as they want to provide security of what rules it will be subject to, how those rules are interpreted and also just mitigate their expenses.
This is, less helpful for a small creator because one of your number one challenges is you probably don’t have a dedicated legal budget… and if you do why are you reading my opinion!?
Still it is worth considering since there are aspects of your own jurisdiction you may need to consider – whether you’re able to waive your Moral Rights (assuming you have them) is one, and another