Hi all,
This is, I think, an interesting question, Faust. And well-posed. I'll
step up for a change because I'm sure of my opinion on this subject *and* better
off finding out where the holes are in my logic. Here goes ...
Faustus von Goethe wrote:
> This risk is what I have heard
> to referred to as the "downstream liability" risk of publishing previously
> "opened" material. The situation could arise like this:
<snip>
> This scenario leaves Party B clearly legally liable for Party C's $50 grand
> - even though all they did was pass on work they believed to be open. It
> might have been an honest mistake, or a late night printing blunder, but
> they are still liable.
I'm not sure about "clearly liable." Party B can certainly argue that it is
Party C's responsibility to check the validity of any work which they are
utilizing. It might not fly, but it's arguable. We'll see when it comes up, I
guess.
> This is also EXACTLY the fundamental difference between "Free Software" and
> "Open" Gaming.
I disagree. The fundamental difference is the actual craft in question (or
product, what have you). The fundamental difference between anthropology and
biology isn't who's reading them and it isn't their methodology. The
*fundamental* difference is what they are actually working with. Software and
games/books are different creatures. What the developers of each want out of a
license is different and should be different. What's more, I think that the
professionals utilizing the OGL, who have been navigating copyright law already
for the most part, are ready to deal with the risks of the OGL. But what about
the non-professionals? Good question.
> THE CONCLUSION: What we have (in the OGL) is a license that fundamentally
> only serves the needs of professional developers. It does not provide
> anything (except more products to buy) for the hobbyist.
> So, an open (sic) question: Have we LOST SIGHT of the FAN community here,
> or should we even be considering them?
I don't think a license really needs to concern itself with those who won't
be using it. I would argue that anyone actually *publishing* gaming products
should expect the responsibilities of professional developers. So, anyone who
utilizes the license in conjunction with a financial risk benefits from the
license (being so labelled a professional). That is to say that the license is
meant primarily to benefit the hobbyist through the professional. It's not the
responsibility of the license (nor is it necessary) to cut out the middleman
just to benefit the hobbyist directly.
However, there is the very real issue, as you suggest, that hobbyists will
be utilizing the license to distribute fanworks (free games). In which case:
1. Your 99.9% figure begins to break down. Hobbyists and professionals are
benefitting from the license.
2. I'd expect that Party Cs with no actual material investment in the
license would be out no money when asked to cease and desist downstream.
Therefore, what would Party B be liable for, except themselves?
> IMO the whole crux of this discussion can be summed up in that question:
>
> "Should the Open Gaming Foundation" concern itself with the
> needs of the FAN community?"
I think the Foundation should, and I think it does. I think the manner in
which the License benefits the publishers is also an important benefit to the
fans. The fans have more to choose from, and choose they shall. A richer
marketplace puts more power in the hands of the consumer [and other great
capitalist speeches -- Ed.], and that means the consumer actually decides who
will benefit from the license.
Meanwhile, the fan community can utilize the license within the boundaries
of the fan community with relative comfort. They are less likely to be sued and
more likely to be shut down in the event of a conflict (that is *not not not*
legal advice, by the way). This is according to the good intentions encouraged
but not mandated by the License.
The real problem comes when hobby material interacts with professional
material. In which case all hobbyists should concern themselves with the very
real consequences. The hobbyists should be concerned, should be worried, about
the consequences of their actions. When they choose to interact with the
professionals, it should be on the professional's terms. This is serious stuff.
My bottom line: the License is what it is. I can read and understand it, so
I think it's good at what it does. I won't fault it for not being some other
license. The PI angle covers the people who need it: those with something
valuable at stake.
If the cost of servicing people bothered by PI means scaring away those who
want it, then the price is too high. Leave it alone, step back, and let the damn
thing do its thing for a while.
word,
will
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