<< When I talked about 'theoretical' I didn't mean 'facts are unimportant' but 1) I have never checked OGL for loopholes according to Italian and European law because I have NO interest in finding them 2) Avoiding to spawn ugly rumors on the Internet. >>
If I may make an observation... And let me state right up front, your English vocabulary is THOUSANDS of words better than my Italian vocabulary, and my Italian grammar is nil; so I appreciate that you're working out of your language. But... In some places, you describe this all as theoretical; then in other places, you make specific recommendations of what Wizards should do for their own good, and cite reasons why. To me, that gets out of the theoretical and into the practical. And that raises hackles if the recommendations or reasons are wrong-headed, especially after people have tried to explain the wrong-headedness. To me, theoretical would be: "I wish Wizards would do X, because it would allow me to do Y." Or "I wonder if Wizards should do X, because otherwise Y might happen. Or "If Wizards does X, will Y happen?" Maybe this has been what you've meant. But your phrasing sounds more like "Wizards SHOULD do X, because Y WILL happen." And Clark and Alec have been trying to explain that Y CANNOT happen. << With 'prosecuted' I mean 'subject to investigation and, possibly, to judgment for breach of the law' - I don't know the exact US legal term and of course I can't use the Italian one. I hope this clears the matter and apologies for any confusion that could have been arisen from by bad choice of words. >> Again, I acknowledge the language difficulties. But I fear from your response that you're still missing Alec's point. (And I appreciate that, actually: I always love to learn from Alec and Clark and others when a good legal discussion comes up.) Let me try to clarify what I think Alec is saying. Let's leave Italy out of the discussion for the moment. This is NOT a matter of breach of the law, even if I (an American working in America) violate the OGL. Suppose I reprint spells from the SRD, but change Mord back to Mordenkainen. As long as a court can be convinced that I have respected copyright and trademark in so doing (and I'm not at all convinced they would; but let's assume for the sake of argument that they would), then I have NOT violated any US laws. I have committed no crime. I cannot be prosecuted. But (in this hypothetical example) I HAVE violated a CONTRACT (not a law): the OGL, to which I agreed. Now I hope Alec and Clark will correct me where I get this wrong; but in essence, a contract is an agreement between two (or more) parties that rests ABOVE the relevant laws, establishing a very specific set of legal obligations for the parties. This is, in a VERY loose analogy, a new set of "laws" (really more like obligations, terms, and commitments, but binding in ways that are like laws) that apply only to the parties to the agreement. Now there are a few points to keep in mind with contracts: * A law is binding if you operate -- live, work, travel, etc. -- within its jurisdiction, whether you agree to it or not; in fact, you need not be aware of it to be bound by it (the clich� is "Ignorance of the law is no excuse"), though there may be different penalties for willful violation vs. unintended violation. But a contract is binding ONLY between the parties who agree to it. In essence, the jurisdiction of a contract between you and me is you and me. Note also that agreement, once given by both parties, can only be withdrawn under certain circumstances. These circumstances may be specified in the contract itself, may be set by local law, and may be decided by a court. * Agreement to a contract is indicated in a number of ways; but two very important ways are offer and acceptance: one party voluntarily offers some good or service along with some conditions, and the other party voluntarily accepts the good or service and thus the conditions as well. In the case of the OGL, the offer is "You can reuse any of this material, under these conditions"; and the acceptance is your actual use of the material. * A contract is not a law (despite my loose analogy above); and breach of a contract is not a violation of a law. Violation of a contract will not (under normal circumstances, at least) result in a jail sentence. But contracts rest on a foundation of law (contract law, of course) that specifies how disputes over contracts will be resolved, and what penalties may be applied in the case of a breach of contract. Now a contract may itself specify both dispute resolution mechanisms and penalties, in order for both parties to agree in advance rather than rely on the possibly unpredictable decisions of a court; but even those terms may be subject to dispute, so contract law will still comes into play. But a violation of a contract is not a violation of contract law, and so no criminal charges nor prosecution result. Rather, a violation of a contract is a civil violation; and contract law is applied to interpret the contract and assess penalties and remedies if a civil suit results. In a civil suit, the rules are different, and the penalties are usually along the lines of monetary damages and requiring you to comply with the terms of the contract as interpreted by the court. (And this is one example where a civil case might result in jail time, at least in US courts: if you fail to comply with the court's orders, you are in contempt of court, and may be jailed. But I suspect that's STILL different from a violation of law, somehow.) Now if contract law differs in a particular jurisdiction, then the terms and enforcement may vary; but both Clark and Alec (whose knowledge in this area I respect) have said that in Italy specifically and WTO in general, the contract laws are pretty deferential to the laws of the jurisdiction in which the agreement was made. * A contract may not require any violation of local laws as part of its terms. For example, a contract to commit murder has no legal validity. So in this, you're pretty much correct: if any term of the OGL were ILLEGAL in a particular jurisdiction, THEN it would not apply. I continue to suspect, though, that that would probably render the whole agreement null and void, meaning it would grant no rights at all. I could be wrong in this; but it seems to me that an OGC producer should not be required to give away material with no benefit, and an OGC reuser should not be bound to conditions without any rights to reuse. Now if we go back to Italy and you (as an example, not an accusation)... Your local criminal laws may differ, and may make parts of the OGL unenforceable. Your local contract laws may differ, and may lead to different interpretations of certain clauses of the OGL. This is all theoretically possible; but this is a case where "theoretical" has no real value until specific real examples are discovered. Yes, we can theorize that there may be jurisdictions where the OGL is unenforceable; and I theorize that under those jurisdictions, it would also grant you no rights. Now we know all the theories; but until we see specific examples, we won't know how these theories play out. << I'll attempt to explain me better: 1) There are companies that consider their best interest in looking in the laws of varuous countries to protect themselves and their property. It seems to me clear that the advantages are superior to expenses for them. This was the purpose of the computer's manufacturer's example 2) There are some companies instead that consider this procedure not worthing the time, the hassle and the money involved. This is WotC case. >> Closer, but I think you still missed. I'm sure that Wizards is looking at the laws of various countries to protect themselves and their property. Your example of computer manufacturers has to do with a company understanding their own obligations and liabilities under local laws, and ensuring themselves the maximum possible benefit/protection under those laws. I'm sure Wizards is covering themselves in this regard. For example, if the content of a particular book violated some laws of decency or propriety in a particular jurisdiction, Wizards would (most likely) not sell there, or (MUCH less likely) print a special edition for that jurisdiction. What they're not able to justify -- at this time -- is to go beyond compliance with and understanding of local laws, and to specifically craft new contracts in the local language while going through the extra expense to ensure that those new contracts were legally enforceable and properly protected their rights. They believe (justifiably or not) that the English language contract already does protect their rights and is legally enforceable in the jurisdictions where they care. Alec and Clark have provided some backing for these beliefs, explaining the relevant international laws. Until I have some serious money riding on this, Alec's and Clark's word is good enough for me. << X can't be guilty of anything in Italy if he hasn't violated any national laws, any international convention or treaty that has Italy as signatory, any European directive ratified by Italian Parliament or any bilateral agreement. >> True. But "guilty" and "in breach of contract" are not the same thing. See above. Martin L. Shoemaker Martin L. Shoemaker Consulting, Software Design and UML Training [EMAIL PROTECTED] http://www.MartinLShoemaker.com http://www.UMLBootCamp.com _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
