Faust,
> No John. Not you. If you LABEL something PI, you are Party A in the
> example. You are a PRODUCER. You do not incur downstream liability.
I'm a publisher. I rely upon assurances that my contributors, staff and
freelance, give me original material, not plagiarized text. In that respect
my position is just like Brad's.
But I'm glad that you do recognize the essential point that, as a creator,
you can use PI to assert control over your work. Just what the contributors
to that netbook say they wanted, and what they should do. The rest of this
is a different point...but I'll talk about it.
> 1. Party A writes an OGL document with a large part of it
> PI (copyright work).
> 2. Party B mistakenly publishes the entire work as "open".
> 3. Party C sees Party B's work, and writes and PUBLISHES
> a game based on the "mistakenly" open content.
OK. If there is any difference between Party B and the potentially infinite
chain of Party C's, it is that Party B is in the position to do something
wrong, essentially to make assurances he is not entitled to make, and
actually does do something wrong. After all, if someone hands Brad a
submission and claims it's original 100% uncut Open Game Content, but it
isn't, then Brad is Party C because he is relying on the false assurance of
the submitter, Party B, who in turn is violating the rights of a Party A.
> If Brad ACCEPTS a contribution with PI in it, he is NOT the original
> copyright holder. He is accepting something FROM a contributor, and is
> being TRUSTED to get the PI issues right. He is Party B.
In your example, "2. Party B mistakenly publishes the entire work as
'open'." Thus he didn't live up to that trust.
If this is indeed Brad's role, he is in error, and should be accountable for
not respecting the PI instructions of his contributors with whom he has a
direct relationship. What's so surprising about that? You make it sound as
though "downstream risk" is someone suffering unpredictably for someone
else's mistake -- but they are suffering consequences of their own mistake.
Is that not just? Isn't that how the system should work? Isn't that what
gives Party B an incentive to clean up his mess as thoroughly as possible as
soon as he learns of it? (The OGL gives him 30 days to make things right.)
Your solution to the self-created problems of Party B seems to be that, if
we throw out Product Identity, there will be no consequences to fear. There
are only Party A's (authentic original creators) and Party C's (innocent and
blameless reproducers).
This however is impossibly idealistic. Throwing out Product Identity does
not mitigate the inevitable risks of error or incompetence, nor does it
eliminate all the other issues of intellectual property.
Take your example and replace the phrase "a large part of it PI" with "a
large part of it copied verbatim out of a FASA sourcebook" or some other
clear violation of copyright. Or Brad might even mistakenly cut and paste a
web article from the New York Times into his compilation. Or leave out a
copyright notice entry in his copy of the OGL. Or his work might libel
someone. Are we supposed to offer special protection for those situations?
Perhaps after eliminating PI, we could go after "copyright"? That's a term
that creates a lot of liability risk for publishers!
Life involves risks. If Brad lacks the confidence in his own ability to
avoid such risks, or to navigate the results, then he certainly ought not to
be doing publishing, electronic or otherwise. Getting rid of Product
Identity won't help him. Heck, he probably shouldn't drive a car--talk
about risky activities!
> Moreover, they have almost NO CHOICE but to try to recoup that loss from
> Party B. They have nowhere else to go.
Nonsense. If Party B is too witless to negotiate a moderately happy ending
to the mess that his screw-up created, the obvious thing for Party C to do
is to go to Party A. "Hey, look, that dumb-ass Party B told us this was all
free and clear, but it turns out it's not. We've already printed $50,000
worth of books, and we don't want to sue Party B out of his home. How about
we cut a deal? We or Party B [ideally Party B, but Party B might be an
impoverished teen in Eastern Europe or something] will pay you a $X
royalty/licensing fee to use your Product Identity, and will pay for the
cost of stickers for us to put in the book acknowledging your copyright.
Then you get some cash and credit for your creation, we can sell our books,
Party B can make up for his mistake without losing his home, and a small
forest cut down to make the paper in those books won't have died in vain."
(Maybe Party A is a big jerkwad and won't come to a reasonable settlement --
but this is one of the reasons to avoid doing business with jerkwads. You
can't plan for everything. If Party A is so unreasonable, he might have
sued everyone anyhow, just to express his inner demon.)
Sound far-fetched? Not at all. We were on the aggrieved end of just such a
copyright violation situation--no "Product Identity" involved or required.
An acquaintance at WotC in fact told me about bumper stickers being sold in
a chain of stores that used big quotes of text out of our game, Lunch Money.
(The "Stomp" quote.) They even claimed it as their copyright. Someone
along the way there was a "Party B" who screwed up by passing along our
copyrighted text without attribution; it was submitted as an idea, turned
into a bumper sticker, and the company made and sold thousands. I contacted
them, politely told them they were violating our copyright, sent them the
evidence, and they said WHOOPS! They signed a licensing contract, paid us a
licensing fee, and everything was happy. Settled like gentlepersons, no
lawsuit required. Lawyers make a lot of scary noises, but this is how
business really gets done. Maybe I could have scored big bucks with a big
lawsuit, but like most people I have constructive things to do with my time.
I just wanted our rights respected and the fair compensation that we should
have gotten if it was properly licensed in the first place.
------------------------------------------------------
John Nephew voice (651) 638-0077 fax (651) 638-0084
President, Atlas Games www.atlas-games.com
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