Re: [Ogf-l] Non-English material

[Ciro Alessandro Sacco]

 

"Alec A. Burkhardt" wrote:

Ciro,

I certainly haven't been offended or hurt by your remarks; I just think
you're missing some relatively simply (to me at least) point(s).  Perhaps
due to the language issue, but perhap more due to understanding the law.

It's of course possible. I know some general concepts, not the specifics, and I understand that US laws, which is (if I recall well) based on the English common law is different from Italian and 'neo Latin' laws that are rooted in the Roman law. I know that various Roman legal concepts have been imcportrated in the English system, but my law professors told me at the time (if I remember correctly) that the law findamentals are different.

More, I have never considered myself a lawyer or an almost lawyer so I had to look for an 'infornmed ioinion' that I translated almost at the word during my discussion with Clark Peterson.

The first issue is the civil vs. criminal law matter.  Martin's post did a
good job of covering this but I'll point out another aspect: when you use
terms like "guilty", "prosecuted" you're clearly implying criminal law.
To take another examply from this posts:

As I have written in a reply to Martin Shoemaker, I think some confusion has arisen from by bad choice of translation of terms that have different values in the law (I suppose pertaining criminal and civil laws).

everyone who publishes under the OGL is *always* subject to investigation.
But it's done by the other publishers from whom they have used material.
The government would never be mounting an investigation because the
government isn't directly involved in a civil matter.  All though no one
can probably afford to do so, every OGL publisher should be making a
preliminary investigation (i.e. just picking up the product and skimming
it) of any other OGL product that re-uses their OGC.  If they then see
something they believe is a misuse of their property, they'd undertake a
large investigation.  In any case simply publishing under the OGL makes
you subject to an investigation.  This is just as true in Italian as it is
in the U.S.

Did my messages seem to imply a 'government invetigation' on this? I so, I'n amazed, perhaps I'll have to study English even more. Perhaps, I repeat, it was fault of my bad usage of English terms.

As for the issue of warranties and how that illustrates that some
companies consider it in their best interests to look at the laws of
various countries, you still don't seem to understand that warranties are
an extremely different area of law than anything included in the OGL.
It's quite well known that various jurisdictions (including different
states in the U.S.) have differing requirements as to how much a
manufacturer can limit their liability.  So this is a specific detail that
all manufactures know they must address or risk being exposed completely.
There's no real work being done here to search out possible jurisdition
issues - everyone knows those jurisdition issues exist.  And it requires
almost no effort to find out what the issues are.

Hmmm, I used the warranty/disclaimer example not as a useful 'precedent' which has so a large part in US laws (if I recall correctly) but only to 'strenghten' my example of different policies of corporations.

The OGL has very few specific details in it to begin with, and none that I
can see any jurisdiction having written specific laws
concerning/prohibiting.  If you think there is some area of the OGL that
might pose a problem, please feel free to point it out.  It might be the
case that in Italy what constitutes "clear designation" may end up being
different than in the U.S., but that doesn't really change the OGL - just
recognizes the concept of "clear designation" could be determined
differently in varing jurisdiction.  (This is also true for different
states in the U.S. - altho if that happened they'd likely get reconciled
eventually.)  The time to correct mistakes isn't overly short, so I can't
see that being an issue.  The restrictions on the use of trademarks isn't
going to be something any country is going to prohibit.  What else might
you be concerned about?

This is not a mattern of concern, it's a matter of personal curiosity.

Okay, but that wasn't how you originally stated it and the real answer is
probably: "WotC considered this, realized that there was nothing in the
OGL which required specific rewrites for any country where copyright law
matters, so didn't make the document more convoluted by including it."
I'll agree that perhaps they should have included a statement that all
disputes are to be decided in the U.S. state of Washington, but it's
really not necessary and may actually cause problems done the line.  As
someone else already pointed out, contract cases can typically be brought
in the jurisdiction of either party to the contract, so for WotC,
Washington is always an option.  For disputes between two other OGL
publishers, perhaps neither of them is in Washington and neither really
wants to go there for a lawsuit.

Well, it's another useful response to my question. In my first message about the question, I wrote: "I'm not a lawyer, but I'd be very careful with "It is implied that such a copy must be in English" and about duties and privileges given you by US laws that, being not European or national ones, have no legal value whatsoerver (excluding Universal Copyright Conventions agreements
of course)". I have written "I'd be" and "I'm not a lawyer" and to be "very careful" about using to the word English legal contracts that might be or might be not enforceable in other countries. That's all. I didin't think to spawn such a lively discussion (it wiull be useful when I write articles on the OGL, if ever).

As I said before, no one is apply U.S. law (in toto or otherwise) in a
foreign jurisdiction.  What's being applied is the terms of a contract
that an Italian citizen voluntarily agreed to enter into.  I know enough
about Italian law (and all WTO members) to know that Italy allows their
citizens to make international contracts and be bound by the terms of said
contracts.  So by voluntarily accepting the OGL an Italian (or German,
Swede, Brazilian, etc.) has agreed to abide by its terms and the Italian
courts are going to enforce the contract *unless* there is some *specific*
aspect of the contract that is *prohibited* by local laws.  The Italian
court is applying *Italian* law when they enforce the contract - as is any
member of the WTO or quite honestly any country which desires to be
involved in the international economy.  Failure to enforce voluntary
contracts would make it impossible for international business to operate
within such a country.

I agree with that - I supposed that my 'informed opinion' said the same thing, in a different way (the informed person that gave it to me used layman terms because there was no chance I could correctly translate the legal terms he used - just look at the mess I created for - apparently - simple concepts as 'guilty', 'investigation' and such).

The reason the OGL can't be translated (as a binding legal document
anyway) is simply because translation can change meanings; it's not an
attempt to apply U.S. law in any other country.  This isn't unusual at all
- all international contracts are generally only done in one language
(whatever language is agreed upon by the parties) as a legally binding
document.  There may also exist a translated version for people who cannot
read the foreign language so they can understand the contract, but that
version has no legal validity.  The same can be done for the OGL.

OK.

Regards

Ciro Alessandro Sacco