> [EMAIL PROTECTED]
>
> I am trying to figure out or test
whether supplements/adventures/settings, which are meant to be used with a
copyrighted rules system are necessarily derivative works of that system.
What protections or not do they enjoy? What rights or not do you have in
creating them? It seems to me that a fair and unbiased assesment of the OGL
can only occur if you are aware of these issues before you adopt a legal
instrument that could have unforseen consequences. The benfits can only be
weighed against what you might be giving up.
I have to agree that such information would be VERY valuable, as would every
person I have every discussed the OGL with (including Ryan), but unless you
are prepared to present a test case, and follow it through our legal system,
it will remain an unknown quantity. The law is not sufficiently clear on
this issue for its meaning to be agreed upon by all parties.
> 4) The reality is that you do have increased liability. You can't be sued
if there is no violation under either scenario (actually you could be no
matter what but I mean
legitamately). A violation of copyright, trademark, or (PI under the OGL)
would have the same effect in either scenario but under the OGL you are at
incresed risk of being sucessfully sued. The hypothetical is that the risk
is offset by the other protections. The fact that many products now exist
in no way decreases the fact that IF you are in violation you are under
increased liability. The OGL may make it easier for you to avoid violation,
but I don't think that is clear cut either.
The OGL is very specific about certain kinds of violations that are vague in
the law. It is quite vague about certain kings of violations (copyright
infringement, for example) which ARE well-defined in the law. All and all,
I see it as a step forward, rather than backward in terms of liability. A
lawyer has a much better chance of successfully interpreting a work in terms
of its OGL compliance than they do without the guidelines the OGL provides.
> As for the proof-in-pudding concept, I think we would have seen the same
proliferation had TSR simply said we aren't going to pursue litigation
except
in clear cases of copyright/trademark violation (ie not chase down every
lousy mention of a fantasy related thing).
Prior to the OGL/D20 STL there were no significant third-party works
designed specifically for D20 in the commercial market. The commercial
response to D20 has been overwhelming. Comparing commercial products like
the "Creature Collection" to netbooks (many of which are blatant violations
of the most basic copyright laws) is not valid.
> Recall, that until the d20STL+G
and SRD are final that is essentially what Wizards has said and look at the
result. There are many things out there which are holding to the
"gentleman's agreement" rather than concrete legal paperwork.
The trouble with "gentleman's agreements" is that the gentlemen change.
They are NOT the foundation a savvy businessman uses as the basis for a
company or product line.
> I do think the OGL is a boon, but I am talking about the theoretical
necessity of it (for the material I referred to above) One definitely get
sthe feeling that Wizards will sue anyone who tries to release "compatible"
products who isn't using the OGL. Is this good?
Theoretical necessity is a fallacy. Practical necessity is what is relevant
here, and of course Wizards doesn't want to start a storm of lawsuits and
all the bad press that would generate. They have learned from TSR's
mistakes, and are offering a solution. It is not the only solution, it is
not the best solution for certain situations, but it is the one being
offered. And I think it is good enough for most applications.
> 5) The only D&D "access" I mean (and I mean that as an example only) is
as I
have mentioned: modules and the like. The access theory could apply to any
system sold which encourages people to create material that can be used WITH
the rules system not material sold to specifically replace it or duplicate
it
(ie. no Bludgeons and Flagons rules! Completely compatible substitute for D&
D! Woohee!)
You cannot extrapolate those rights granted to purchasers of a product
forward to the creation of new works for distribution. Different rules
apply, so the fact that Wizards encourages the creation of derivative works
does NOT mean they encourage the distribution of those works.
> 6) More power to Wizards, but I think that the OGL should be just as
useful
to everyone else, so the issue at heart is whether it offer benefits that we
could not get otherwise. I am convinced it does for certain applications,
but I remain unconvinced that we should be forced to use it to access the
RPG
market that was created in large part by fans. The OGL is part of a larger
strategy to have the d20 system dominate the market, so using the OGL means
agreeing to that plan. At least it appears that way.
No one is forced to use the OGL. If your theories are correct, one can use
OGL material just as easily as one can use Wizards or White Wolf material.
I am not prepared to build a business based on your theories - I want
something more concrete, and for now that means the OGL.
> 7) It may be a simple reality that you get sued but is it legal to be sued
for the type of situation I am trying to outline?
Yes. Win or lose the courts are precisely the entity to decide if what you
have done is legal or not. The law is not clear enough in this area for two
parties to necessarily agree on it without instruction from the courts.
> Moreover, agreeing to a legally binding license because you are forced to
by threat of frivolous lawsuits designed to drain rather than enforce claims
is questionable. I
think everyone would agree that the OGL is a good thing, if there wasn't the
undercurrent that "we are gonna sue you if you don't use it". The rest of
the industry may be C&D happy as Wizards claims, but the market that matters
(to twist Ryan's argument a bit :) ) is the "D&D" one, which means that
they
are the threat to publishers. Who is going to sue you over "D&D" compatible
material? Wizards. So they are the one you are buying protection from no
matter how much they point the finger at the industry as a whole.
A good point. I disagree that the suits would necessarily be frivolous,
however. Wouldn't you agree that Wizards has a right, indeed an obligation
to their stockholders to defend their rights as they see them? The d20 STL
is their way of saying "this is what we are ok with, any more we aren't
comfortable with". Would it be any different if they said essentially ALL
of the things in the D20 STL+G and the SRD in a non-binding way? Yes, it
would be different to Wizards because they would have a much harder time
protecting their rights as they see them. Again, you are not required to
agree with their interpretation - you may ignore the OGL and act exactly as
you please. The D20 STL and OGL is not a blanket promise not to sue or C&D,
but rather it is a set of conditions under which you can operate and be
reasonably safe without threat of legal action.
> PS> I think that what Wizards is doing (which is very different from the
public perception of D&D) is to position D&D as a brand that identifies not
a
game system but the particular settings (Greyhawk and the Forgotten Realms)
under that system. This is too bad because it restricts the imagination IMO
that D&D was meant to foster. d20 has become the new means to identify the
system behind D&D but to protect that and D&D we have the OGL mechanic and
the d20STL+G. My references to D&D above are not to the brand as it exists
now or even to the system, but are meant (as most players use it I think) to
encompass the whole spectrum of fantasy thought that was a part of D&D.
Your
own motto of "1st Edition feel" seems to refer to that limitless vision of
D&
D, as opposed to the more specific D&D of today. I realize that this is
Wizards way of protecting the brand b! ! ut they have isolated it so much
from
the fan base visions that really created it that it looks somewhat greedy.
Yes, Wizards is using d20 to protect the D&D brand, AND the Forgotten Realms
brand AND the Greyhawk brand. They are also using it to protect the Dune
brand, the Call of Cthulu brand, the Star Wars brand, and others. By
granting free access to all these brands and creating a generic term to link
them, they give fans access to them without compromising their valuable
intellectual property. They simply aren't sharing those things that are
most clearly defined by copyright law as protectable, and that they have
spent considerable time, money, and creative effort building into the
properties you want free access to. I can't call that greedy. Would you
rather they offered a licensing fee to use these brands INSTEAD of the OGL?
I sure wouldn't. Because then it truly would be designed strictly for the
commercial market, rather than as a vehicle for both the fan and the
business to participate in the Wizards' RPG market segment.
-Brad
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