> Ryan S. Dancey
>
> So, as it stands, two parties might disagree on what constituted
> a "work" in
> the sense that term is used in the license, and a court would make a
> determination based on Title 17 and the caselaw about copyrights in this
> area.
Doesn't this give rise to difficulties in the safe-harbor concept? I mean,
the whole point is to have the OGL 'safe enough' that a publisher/author
doesn't need to worry about copyright infringement for using game mechanics.
The OGL addresses that, but the 'infectious' nature of the OGL into non-OGC
within a work creates a whole new set of problems because the publisher now
has to worry about breach-of-contract if an interested party disputes the
concept of a work.
I already mentioned the magazine/periodical issue, but now I am beginning to
question web-site distribution as well. Others have stated that they wanted
to create a 'clearinghouse' of OGC on a site, and allow comments to be left
about the materials. Lets say I create a site that contains free-form
editorial content related to OGC, and also related to other non-OGC games.
For the sake of argument, lets say it has a review of "The Wizards Amulet"
that details how well it fit into a particular D&D campaign. It uses
several Wizards trademarks, and a couple from White Wolf as well. The
review would normally be protected under Fair Use, and nobody would care so
long as the trademarks were acknowledged.
However, if that site were to also DISTRIBUTE the materials that were being
reviewed (such as is done at Tucows, Walnut Creek, CNet, etc., and further
assuming that they had the right to do so), it could be argued that the site
has created a breach of contract because the entire web site is actually a
monolithic whole constituting a single 'work' and it ALL falls under the
OGL. This is especially likely given that the OGL doesn't ever define the
term 'work', or anything else that I could find that might even conceivably
be a definition of what we are calling a 'work'. This may fly in the face
of Title 17, I don't know, but the OGL and it's infectious nature could
easily create a situation without precedent that can only be determined by
the courts. And that defeats the purpose of the safe-harbor.
I think the solution is to give rise to a 'library' concept. A 'library',
is a special kind of work that contains 'sub-works' side-by-side that do not
'infect' each other. A 'library' can contain works that are not covered by
the OGL. A 'library' can contain non-OGL material that uses Trademarks
owned by third parties under Fair Use, but may not contain material that
indicates compatibility or co-adaptability with any Trademark in conjunction
with a 'work' containing Open Game Content except as expressly licensed in
another, independent Agreement with the owner of such Trademark. A
'library' is not required to distribute a copy of the OGL with every work,
rather a single copy may be distributed for all works it contains. A
library cannot contain works under any license which contains terms that
conflict with the terms of the OGL, nor can it itself be distributed under
terms which conflict with the OGL.
This would allow a web site, CD-ROM, or magazine to distribute OGC along
with non-ogc content, but would prevent the distribution of Fair Use
material that claimed that a particular work of OGC was compatible with any
trademark without that trademark owner's permission. It would be of some
use to game publishers because it would allow them to create copyrighted
works that contain OGC (outside of the normal PI rules), but it would limit
the kind of content those separate works could contain and still be
distributed as part of the 'library'. Specifically, the game publishers
STILL couldn't say their OGC was compatible with D&D.
I think it can also work with the D20 STL pretty much untouched, so long as
you allow the D20 System Trademark to be used inside the works, but not
outside. Using it outside would make the whole 'library' a D20 STL work,
and cause the OGL to become 'infectious' again.
Is there room for this concept in OGL 1.1?
-Brad
-------------
For more information, please link to www.opengamingfoundation.org
