----- Original Message -----
From: "Faustus von Goethe" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Thursday, April 19, 2001 3:17 AM
Subject: Re: [Ogf-l] no offense to the mouse genus intended
> DOWNSTREAM LIABILITY EXAMPLE:
>
> TO REFRESH EVERYONE'S MEMORY, HERE IS THE "DOWNSTREAM LIABILITY"
> EXAMPLE AGAIN. PLEASE DO NOT POST ON THIS ISSUE WITHOUT REFERRING
> TO IT. THIS IS A VERY REAL EXAMPLE. I HAVE HAD IT EXPLAINED TO ME
> BY MORE THAN ONE EXTREMELY QUALIFIED IP EXPERT.
>
> 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.
> 4. Party A informs party C they cannot use the content,
> but too late - Party C has already spent $50,000 printing
> up their work. Way too late, because now they CAN'T publish
> and the $50 grand is wasted - GONE.
>
> 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, because it was THEIR
> mistake.
>
> Moreover, they have almost NO CHOICE but to try to recoup that loss
> from Party B. They have nowhere else to go.
In your example, party C is going to research to make sure that they
truly have the rights to publish the material. In the case of OGL
material they will trace the copyright chain. Anything less would be
negligent. And party C is going to trace the chain carefully; $50,000
is at stake.
If the mistake was honest, then the copyright chain will include party
A. Party C will examine Party A's document in comparison to Party B's
and discover the plagiarism, thus averting the problem.
If party A is not on the copyright chain then party B is listed in the
copyright notice as the author of all of the material. If party B is
an individual fan, then party C will simply get in touch with that
individual and ask them to verify that they own the copyright in all
of the material. In writing, most likely.
If party B can't be located then party C must make a decision about
the risk: is it worth risking $50,000. I certainly wouldn't risk
$50,000 if I found a great novel online from an anonymous author who
claimed the novel was in the public domain.
I don't see any terrible risk for a fan who makes an honest mistake. A
company with $50,000 at stake is going to be rather careful about what
they publish. If anything, the OGL increases the risk to game
publishers because now they must sift through the entire copyright
notice of open game content in order to verify ownership.
-kenan
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