From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]On Behalf Of Walter
Christensen
Sent: Wednesday, June 21, 2000 10:37 PM
To: [EMAIL PROTECTED]
Subject: Re: [Open_Gaming] The Spirit and the Letter
<< I think the spirit is pretty clear. What benefit would somebody have of
using Open content and calling it Closed? It certainly isn't in the
economic best interest of a commercial entity to do so, and any
non-commercial entity will find themselves a social pariah if they did so.
>>
Ah, but that�s not the issue I�m trying to raise. Sorry, I�ll try to explain
more clearly.
I�m not talking about claiming the works of others; I�m talking about some
creator being stingy with the rights to his own works. What if he clearly
acknowledged the Open Content which he used, but marked his new content as
all closed? If his new rules were really clever, it may very well be in his
economic interest to try to keep them all to himself, so that his game sells
better: �If you want the cool new mecha rules, you have to buy my game.�
A stated goal of OGL is to encourage a single, growing game mechanic that
everyone can use. Thus I contend that the spirit of the OGL is �New rules
SHOULD be open, new story MAY be closed.� Another aspect of the spirit of
OGL is �Take what you like, give back what you can, and we�ll all benefit.�
But nothing compels the creator to make his new rules open, so the spirit
may be broken. And the wording of the draft OGL can be interpreted to say
that work derivative of Open Content is automatically Open Content. But that
lands us squarely in the morass of �What is derivative work?� Are the new
rules derivative? Is the adventure itself derivative? The draft OGL doesn�t
say either way. A traditional interpretation of derivative works would say
that the whole thing is derivative. That�s easy to understand, but
undermines the OGL goal of allowing a mix of open and closed content. Yet I
see no OTHER way in the draft OGL to ensure that new rules are
encouraged/compelled to be open.
<< >Maybe even some wording that explicitly grants OGF some arbitrating
>authority would help.
I was under the impression that the OGF doesn't *want* any such kind of
authority. >>
Someone has to have it. Right now, it�s the courts; and ultimately, it will
still be the courts. But it will not be good for OGL if disputes keep
landing in the courtroom. If there are enough court cases, game designers
who are trying to decide whether to use OGL will decide that it�s just not
worth the risk. We will do well if a dispute resolution mechanism is built
into the system. That way, only the really intransigent cases will end up in
the courts.
Heck, the draft OGL SCREAMS for an arbitrating authority. Consider �13.
Termination: This License will terminate automatically if You fail to comply
with all terms herein and fail to cure such breach within 30 days of
becoming aware of the breach. All sublicenses shall survive the termination
of this License.� Define �becoming aware of the breach.� What if somebody
tells me I�m in violation, but I ignore him because I believe I�m in the
right? What if somebody MALICIOUSLY tells me I�m in violation? I would be
CORRECT to ignore that. Frankly, �becoming aware of the breach� needs a
specific meaning, or section 13 is pointless; and most likely, that meaning
will take the form of a written notice from the rights holder -- either
Wizards or OGF. And if the termination of license is to mean anything,
somebody has to be able to prosecute cases of the material being used after
termination. Again, that will be the rights holder, either Wizards or OGF.
So since somebody has to be a policing authority, somebody could easily be
an arbitrating authority as well. I maintain that the rights holder is the
only party with standing for the first action, and thus the natural party
for the second action as well. I imagine a conversation like this:
OGF: �Hey, Bob. These mecha rules are pretty clearly derived from D20SRD,
but you marked them as closed. We have to send you a written notice, but we
wanted to call and talk to you first.�
BOB: �Oops! You�re right, I got carried away there. Editing oversight. I�ll
correct that.�
OGF: �Thanks. Hey, we can�t play favorites, so we still have to send out the
written notice. Nothing personal, you understand.�
BOB: �Oh, of course.�
OGF: �Now about these starship rules. They�re not derivative. There�s no
actual violation issue here. But Bob, these are nice rules. Wouldn�t you
like to make them open, so everyone can use them?�
BOB: �I don�t know. I worked awfully hard on those.�
OGF: �Yeah, but don�t forget: if people use your rules, you�ll get credit.
And I know three designers who have already mentioned that they would like
to use those.�
BOB: �Three? Hmmm... Yeah, I guess I really ought to share them. OK, I�ll
revise it so those are open, too.�
<< Regardless, it may not be needed. If an entity were to take my
Open work and call it Closed then they potentially face legal action from me
*and every individual before me*. Would *you* want to foot the time/money
as a defendent in, say, 37 different court cases? >>
Now look at the other perspective: the creator adds new mecha rules and
marks them as closed; and people decide -- perhaps with what seems like good
reason -- that the rules should be open, by the spirit of OGL. So they use
the rules. That could make THEM the defendants in a court case, because the
OGL does not prevent closing the new material, only the preexisting
material.
If the OGL spells out more clearly what should be declared open and what may
be declared closed, and if the OGL spells out a resolution mechanism to
handle the inevitable differences in interpretation, we�ll avoid some ugly
court battles that will be bad for OGL as a whole.
I can think of some illustrative examples, but not how they might be
translated into contract verbiage. Consider these cases:
1. A plot for an adventure. Clearly, the plot can be marked as closed. Doesn
�t have to be: you could make your plot and characters all open, so that
anyone can use them in their OGL works.
2. A set of mecha rules which describe how the mecha pilot controls the ship
by rolling a D20 against a DC, with modifiers based on the Dex adjustment
and on the Mecha Pilot skill. The concepts here -- rolling against a DC, a
Dex adjustment, and a skill adjustment -- are all presumably in the D20SRD
and thus Open Content; so a reasonable observer would conclude that the
Mecha Pilot skill and the mecha piloting game mechanic are derivative
mechanics and thus should be open.
3. A set of starship piloting rules which describe how a starship may jump
through hyperspace tramlines between areas of equal stellar flux, thus
crossing light years in instants. Never once do these rules mention the
existing stats, task resolution rules, etc. It�s automatic: reach the right
spot at the right time, turn on your drive, and �POOF! There you go. These
rules clearly sprang from nowhere (with apologies to Niven and Pournelle),
so it�s much harder to call them derivative. Yet the spirit of OGL says that
new rules should be open.
Where my concern comes in is this: I can see an interpretation of the draft
OGL that would require 1, 2, and 3 all to be open if other Open Gaming
content is used in the work; and I can see an interpretation which would not
require any of them to be open (though certainly allowing them to be). What
I cannot see is an interpretation that would require 2 to be open, allow 1
to be closed, and resolve the very thorny issue of 3. I think that a good
lawyer teamed with good game designers can modify the wording to resolve the
issues of 1 and 2; but I think that wording will still lead to questions of
interpretation -- some as hazy as 3 -- and somebody will have to resolve
these. I maintain that we�re all better off if it�s NOT the courts.
Section 13 also raises a concern for small publishers. The 30 day limit for
bringing material into compliance is probably no big deal for electronic
publishers; and large publishers can (perhaps) afford to have a title pulled
from the shelves for correction (maybe stickers or errata sheets or
whatever -- some method to revise what is marked as open or closed). But
what about a small, paper publisher? The cost of pulling a book, correcting
it, and redistributing it may turn a marginal seller into a fiscal disaster.
This puts pressure on the small publishers to go overboard in what they mark
as open, because the costs of correction may be overwhelming. Maybe we need
some definition or (again) some arbitration authority to determine when a
breach has been �cured�. It might be reasonable to allow a small publisher
to simply file a written statement that �The following items marked as
closed in the document as released are hereby acknowledged to be Open
Content as defined by the OGL...� If formulated in a way to be legally
binding, this statement would be clear proof that the material in question
falls under OGL.
Martin L. Shoemaker
Emerald Software, Inc. -- Custom Software and UML Training
[EMAIL PROTECTED]
www.EmeraldSoftwareInc.com
www.UMLBootCamp.com
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