On Mon, 26 Aug 2002, Doug Meerschaert wrote: > I meant the part of the OGL where you are required to release your new > derivitive work under the OGL.
Which part of the OGL specifically are you referring to? My best guess is S.1 where the concepts of "Derivative Material", "Open Gaming Content" and "Use" are defined. If these are found to be invalid by the court, the whole document is going to be essentially worthless since it will be basically impossible to reform the OGL in any way to make it usable. It would also mean the entire concept of copyright as currently recognized in the Berne Convention is being rejected. Right now, anyone creating derivative work of someone else's copyrighted material *does not own* that material. At *best* they co-own with the original copyright holder, at worst the original copyright holder owns it outright and doesn't even owe the derivative author anything for it. There is a fair use way (parody) to get around this, but that isn't very helpful for game publishers. Now it could be argued that the definition of derivative in the OGL (and most copyleft licenses) may be more strictly defined than derivative is under normal copyright law, but that's where the notion of it being a voluntary contract comes in. If someone really believes that what they are doing is not derivative, they have no need to use a copyleft license unless they want to mix that with material they no is either clearly copyright protected or derivative. In which case we're back to that voluntary agreement aspect. In order to use the material they clearly cannot use, they agree to consider material which may or may not (there's nothing mentioned in the OGL defn of derivative which is clearly not considered derivative under copyright law) be legally protected as derivative as if it were legally covered. > This is the "viral" nature of copyleft licences, the fundamental part > that makes them sticky & useful means for what Ryan Dancy & the FSF > wanted to do to RPGs and Software. It's the most attacked nature of > open source software, and (from where I sit) the one most likely to be > challenged in court. Not caring too much about the technical matters of programming, from most of the discussions I've seen I'd assumed the issue was more about what can actually be considered as derivative, not the fact that copyleft recognizes and uses standard copyright law concerning *who legally controls* derivative material. If they are challenging this, they are challenging the fundamentals of copyright law. Now given the significant differences between computer programming and the type of material copyright was originally designed for they might have a decent argument. And if they are ever successful, I doubt it will extend beyond the realm of programming, since the protection of derivative material is almost more important today than merely preventing explicit duplication of the copyrighted material. > I know that there are some laws that regulate where and how you can > transfer copyright--but then again, the OGL doesn't transfer copyright, > it just compels an exchange of permission... > > Is it likely that if a court finds this part of the license > unenforceable, the rest of it will still stand (allowing someone to make > OGC-derived works but not release the new derivitive material as OGC) or > is there some legal principle that would cause the whole license to be > abolished if the principle consideration was removed? (If there was no > consideration there wouldn't be a contract, but the OGL includes other > duties than release of derivitive material as OGC....) If a court finds that copyright law no longer protects a copyright holder's interest in material derivative of the copyrighted material, copyright has essentially lost the vast majority of it's value. Who cares about the idea of copyleft when there's basically no longer copyright? And even if someone wants to argue that there's still something left in copyright, the OGL has clearly been gutted completely so it could easily be argued that it cannot be reformed in a way which leaves a valid license. alec _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
