Re: [Ogf-l] How to revise the OGL

[Tavis Allison]

At 4/26/2004 00:12:22 -0400, Joe Mucchiello wrote: There are a few problems with this line of reasoning. First, if they really wanted to drive sales of UA they would attach text to the d20 license allowing users to use the UA trademark. That they haven't done this indicates that they aren't even slightly interested in such source labelling. Second, the meta-license will mean diddly-squat to people pirating OCR'd scans of the PHB or UA. Most OGL issues only matter to publishers. Hasbro doesn't need to make their OGC offerings any more attractive to publishers. Publishers flock to Hasbro OGC without such requirements. It was probably a mistake to use the terms “pirate” or “Hasbro”. Both are emotionally loaded, and each utterance of the latter has a 1% chance of attracting the attention of an enormous, unfriendly, and inhumanly powerful entity. Let’s define four categories of people who are involved in open gaming: consumers, utilizers, contributors, and traders. Members of the latter three categories are affected by OGL issues.  Consumers = passive recipients of the work who are interested only in possessing, reading, or playing with it using the format in which it was delivered to them Utilizers = those who cut and paste, modify, or reformat open content created by others to serve their own needs  Contributors = those creating new open content Traders = users who distribute works beyond their own immediate circle  Most active members of the community belong to multiple categories. The most important factor that cuts across these categories is money. We can thus understand “pirates” to mean the members of a community at the zero end of the money scale. Consumers are always the largest category in any community: here, they consume both OGC and PI that they haven’t paid for. Most of them are also traders, distributing huge, unwieldy, and often-crappy scans that closely resemble the format of the original work. There has been a recent movement in this community towards utilization, as people OCR the scanned works to liberate the modifiable source code (both OGC and PI), which can then be traded in a much smaller and more useful form that they do not expect to be paid for. Likewise, we can understand “Hasbro” to mean the extreme of the other end of the money scale. It is a trader that occupies a unique market niche, and whose business procedures and concerns are different to a greater or lesser degree than those of every other commercial trader. Since acquiring its current size and status, it has been primarily a utilizer of open content. Although it owns the copyright to the open gaming license and its fortunes are inter-related with those of the open gaming community, it is possible that each could survive independent of the other. (As a side note, it is interesting that although these two groups are opposites in almost every way, both are either exempt from, or choose to operate in violation of, some provisions of the open gaming license.)  In my mind, the importance of Unearthed Arcana is that: - it marks the first major step of the Biggest Fish (in its current configuration) towards becoming a creator of OGC and not just a trader and utilizer - it reveals the existence of a large and active community that is interested in extracting, utilizing, and re-releasing the modifiable source code to UA’s OGC, and doing so in compliance with the OGL - this implies that there is considerable interest in covered works that are: produced by utilizers rather than creators and individuals rather than business entities; released in a dynamic electronic form rather than a print edition or a static PDF; and made publicly available without any real expectation of making money from it. Whether this is true, to what extent, and whether or not the Biggest Fish has a business plan to deal with it, are all debatable but largely beside the point.  My central assertion is that a meta-license that established a community standard for source labeling and citation, and cleared up some murky areas in the OGL, would benefit the community as a whole. Specifically, it would make it easier for commercial creators and traders to survive in the environment created by the overlap of the OGL with the current copyright law and the realities of the gaming industry. I think that this is true of the Biggest Fish as well as the smaller ones, but all that is required of the meta-license is that it must be in the common good, legally defensible, and not sufficiently threatening to established interests for them to spend a lot on legal fees. At 4/26/2004 00:12:22 -0400, Joe Mucchiello wrote: Third, you can already get permission to include source labelling in your works by asking the owner's of the up level OGC for permission. Most companies are free and easy with granting this permission. So other than trying to put a new noose around publisher's necks (to follow another license) what does this offer to people whom have already put thousands of dollars on the line? Having made large money commitments to the OGL, what more does this offer? About the only thing it may offer is an interpretation of the OGL that may jeopardize those thousands of dollars. In fact, such a license, if widely spread may cause Hasbro to halt future OGC releases. That certainly jeopardizes lots of invested money in the status quo. Nothing in any current plan (for a meta-license or consortium of true believers) seems to benefit all publishers.  Participants in academic communities have long accepted the consensus that requires them to specifically cite the sources of the prior work they use because this system: - serves the end user by providing them with links to sources so that topics that interest them can be explored further - serves contributors by ensuring that they will receive credit for their own original work, while making it easy for them to build upon the work of others - serves the field by creating a denser and more robustly interconnected body of work - serves the community by standardizing and enforcing a framework for the interchange of new and old works that encourages contributors to participate and creates a safe environment for commercial entities by minimizing dispute and litigation about claims Being many centuries older than the OGL or contemporary copyright law, academic citation systems are much better suited to handle some emergent long-term problems. Let’s imagine that in 2019, Behemoth3 wants to use a set of OGC spells that it finds in the Hermetic Text, a compilation that was released on the Web in 2009. All of the copyrights cited in the Section 15 declaration of the Hermetic Text belong to individuals or legal fictions rather than registered corporate entities; all of the original works were “published” through the Web or other channels that did not assign them ISBN numbers, store them in the Library of Congress, or provide other means by which they could be traced. It will be very difficult, perhaps even impossible, for Behemoth3 to match the OGC spells it wishes to use to their copyrighted sources when it draws up the Section 15 for its new tertiary work (which may also contain content drawn from many other secondary sources). Nevertheless, any errors or omissions may expose it to litigation, and since current copyright is all but immortal, this risk is likely to persist throughout Behemoth3’s existence. Given that this is the status quo, anyone investing lots of money in a d20-based business is encouraged to incorporate that business as an opaque shell designed to absorb the impact of litigation and then disappear with minimal losses, often leaving behind a minefield of hidden, untraceable, but still active copyrights—jeopardizing the survival of any business.  Or, to take another example, let’s assume that Adam of AAA Press wants to use monsters from Masters and Minions in his forthcoming work, A Better Compendium, and cite their source next to their appearance in the text. He approaches me at GenCon, I give him verbal permission, and we shake hands. Later, Behemoth3 and its copyrights are bought by a multinational corporation. Adam is unable to substantiate our loose, old-boy’s agreement; at best, he winds up destroying all copies of ABC, and at worst, he is sued and AAA Press becomes extinct. As a d20 publisher alternating between delusions of grandeur and a pessimistic evaluation of the state of the marketplace, these are the issues that concern me, and I think a specific citation system is one solution.

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