> kevin kenan
>
Your answer to my computer analogy demonstrates a firm grasp of the
open/closed IP issues under OGL, so no need to rehash that.
> Unfortuately, identifing what parts
> are Open includes identifying what parts are derivative of Open
> material. Lawyers make lots of money arguing over what is derivative;
> it seems a bit much to expect a game designer to know with any
> certainty if he's correctly identified the derivative material.
There has been a great deal of talk about this very issue, and I haven't
heard a clear consensus, however, here is my perspective. I think hybrid
open/closed works are deceptively complicated from a legal perspective. The
language seems so simple in the OGL, and yet is literally a minefield of IP
law waiting for an unsuspecting interloper. My advice to anyone creating a
hybrid work is to have a lawyer bless it before you publish. That pretty
much means that most amateur publishers should stay away from hybrid works,
and leave them to people who have a financial stake in protecting their
closed IP.
When creating a hybrid work, I would strive to protect what is truly new and
unique and nothing more. The an OGL document's default state is closed,
which unfortunately puts people in the mindset of 'only open what you have
to'. The safer way to think is 'only close what you need to', and don't
take risks on sections you don't feel strongly about. I'm not going to try
to speculate on what you will or won't feel strongly about, but make sure
that each section you close is important enough to fight for.
> what happens to his game and IP? Does he have to recall
> all of the books? Issue errata? Is Openness worth risking this much
> trouble and expense?
There are no explicit remedies for a breach under OGL, but since there is
only one requirement - that Open content remains Open, the remedy will
depend on the nature of the breach. I suspect that errata will cover most
circumstances. The OGF might find it in their best interest to provide
links to errata on their web site.
> In addition, there are concerns about creating rules to mirror the
> setting. Say you come up with a great setting that you want to capture
> in novels, comics, tv, and film as well as RPGs. You must be very
> careful when crafting an OGL based game so that when the non-Open
> parts are stripped from the adventure material, what's left is bland
> enough not to threaten your intellectual property, yet the rules need
> to be rich enough to capture the originality of your setting. Is
> Openness worth risking the integrity of your IP?
If you have these kinds of goal then you ABSOLUTELY need an experienced IP
lawyer. OGL might not be a good idea for you.
> Both of these issues represent serious risks that may very well keep
> any professional game designer (someone who has a history of creating
> valuable IP) from releasing material under the OGL. The uncertainties
> and risks are too great; it is safer sticking to the traditional
> model. No one wants their IP compromised.
I have to offer up a reality check here. There are only a very small
handful of RPG settings that have made it to other media, far fewer than
there are game designers. I understand that 'game designer' is often just a
stepping-stone towards 'fiction author' as a career path, and if you are one
of these folks then you need to be much more aware of your rights than
someone who just wants to create game supplements or write adventures for a
generic setting.
Keep in mind, though, that nothing else gives you the right to create a
product derivative of the 3e D&D game system. If this is important to you,
then you're stuck with OGL. If it isn't, then OGL may not be the answer for
you. It isn't a panacea for game designers.
> However, my suspicions are (and I may be wrong) that D&D is not based
> on the D20SRD, but that the D20SRD is based on D&D. This gives WotC a
> unique position with regards to D20.
This is exactly correct. D20 is a WotC trademark, and they can do anything
they want with it. The SRD is theirs, so they too can create derivative
works that are NOT OGL.
> It seems that the OGL places the
> originator of the game system in a privileged position relative to
> everyone who uses the game system. If Steve Jackson Games released a
> GURSP:SRD, then SJG's IP would enjoy strong copyright protection while
> everyone using the GURPS:SRD would face questionable protection.
This is true, but what exactly do you mean by 'questionable protection'?
Are you referring to the problems in identifying derivative material? If
so, then you are absolutely correct. Releasing a new D20 game for profit
will be a lot of work, so you have to decide if the network effect and the
pre-built rules are worth the trouble. Otherwise, write your own system and
skip all the headaches of a hybrid work.
> I don't like this. I want the people using Open material to have the
> same protection as the people who originally made the Open system.
>
> Am I missing something?
It seems like you have a decent understanding of the picture, but it doesn't
fit what you want to do as well as you hoped. As Clark reminded us, the
only reason the OGL exists is to help WotC sell more copies of their d20
materials. The d20 Trademark can be a business opportunity for those who
wish to live in WotC's shadow (it's a big shadow, with lots of loose change
laying around), while the OGL is great for hobby and low-budget game shops.
If you're going to be the next SJG, FASA, or White Wolf, then it probably
isn't for you.
-Brad
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