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  #291  
Old August 15th, 2007, 05:10 PM
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Quote:
Originally Posted by aramis View Post
Moreover, few lawyers are willing to handle cases on subjects that they do not know.

THe few who do know RPG's seem unwilling to go near the OGL... (Specifically Dave Kenzer, for one.)

Now, the legal theory is that the end user of unlawfully released material is not laible for the losses incurred, but must stop using the material upon notice (as happened with the GIF file format) or secure valid license; the person who released it unlawfully is liable for all the losses. Now, the courts might not handle it that way. So document, document, document!

Keep copies of the SRD's you pulled from, preferably in sealed, signed-across-the-flap-edge, postmarked envelopes, which you mailed to yourself.

Seriously, it's no safe harbor. It's an automatic license, which is still dangerous turf, since no serious challenges have occurred... yet.
The OGL is a "safe harbor" to the extent that you reproduce copyrighted materials that have actually been licensed under the OGL. If you make a mistake as to whether the material was licensed under the OGL, then the copyright laws of the applicable jurisdiction will apply.
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  #292  
Old August 15th, 2007, 05:37 PM
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Originally Posted by tbeard1999 View Post
*If* you follow the terms of the OGL, you'll have a "safe harbor" from being sued by the licensor of the material.
No. There is no safe harbor from being sued stated or implied by the OGL.

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Obviously, if you make a mistake about what's actually covered by the OGL, then the situation changes. I don't think I ever implied that the OGL would provide blanket protection from unknowing violations of copyright for non-OGL material.
What of being caught by someone else's error? That's the danger. You have no way of knowing if the material listed as OGL in a product is actually legally OGL. You can assume it is, but that's very dangerous and leaves you open for a big hit if you are wrong.

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And while it is technically true that anyone can sue for anything, a licensor who sued for copyright infringement of OGL-licensed material would quickly lose a motion for summary judgment and could wind up paying the defendant's legal fees. In my experience, few plaintiffs are that irrational (and fond of paying legal fees).
Really? If WotC or other large company decided to sue a small independent, most of those independents couldn't afford to pay the legal fees that would ensue even before the case got before the bench. Happens all the time.
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  #293  
Old August 15th, 2007, 06:44 PM
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No. There is no safe harbor from being sued stated or implied by the OGL.
We lawyers use the term "safe harbor" to *describe* a legal construct that removes a significant amount of doubt by clearly defining the legal rights created by certain behavior or that privides legal protection.

I don't think I've ever seen the term in a statute or in an agreement. In any case, I think that the OGL creates what we call a "safe harbor".

And as long as you follow the terms of the OGL (which includes correctly identifying the property that is licenced by the OGL), you are extraordinarily unlikely to be sued. Even if you are, the licensor of the material will be unable to prevail, since he licensed his material via the OGL.

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Originally Posted by hunter View Post
What of being caught by someone else's error? That's the danger. You have no way of knowing if the material listed as OGL in a product is actually legally OGL. You can assume it is, but that's very dangerous and leaves you open for a big hit if you are wrong.
There's always a danger of inadvertent copyright infringement in *any* license/sublicense agreement. The OGL does not make this any better or worse than it already is, in my opinion.

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Originally Posted by hunter View Post
Really? If WotC or other large company decided to sue a small independent, most of those independents couldn't afford to pay the legal fees that would ensue even before the case got before the bench. Happens all the time.
This is the exact problem that the OGL addresses. By CLEARLY licensing certain property via the OGL, the licensor ensures that people can use THAT licensed property without a reasonable fear of being sued.

I agree that mistakes as to the identify of OGL property could cause problems. But as I noted above, these issues exist in any licensing arrangement.

And note the following statement from the D20/OGL FAQ:

"One of the objectives of the OGL/d20 project is to create a "safe harbor" that clearly identifies material that can be used, derived from, modified, and distributed without fear of litigation. To that end, the SRD contains material that is public domain, copyright, and somewhere in between. But using the OGL, it all carries with it the same, uniform set of rights, thus creating the safe harbor."

http://www.wizards.com/default.asp?x...dfaq/20040123c

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  #294  
Old August 15th, 2007, 07:47 PM
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Originally Posted by tbeard1999 View Post
And as long as you follow the terms of the OGL (which includes correctly identifying the property that is licenced by the OGL), you are extraordinarily unlikely to be sued.
No more unlikely than being sued under traditional copyright law if you follow the terms of the law.

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Even if you are, the licensor of the material will be unable to prevail, since he licensed his material via the OGL.
Not if the material wasn't legally placed under the OGL in the first place. Simply because you weren't the one who originally placed it illegally under the OGL doesn't give you a free pass. In the best of situations you will still be required to destroy any material containing the copyright violations, and in the case of printed material this could easily bankrupt a small company.

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This is the exact problem that the OGL addresses. By CLEARLY licensing certain property via the OGL, the licensor ensures that people can use THAT licensed property without a reasonable fear of being sued.
The OGL in no way ensures that you won't be sued. Nor does it stop you from going broke in legal fees trying to prove your case in the event you are sued. As I said, most publishers in this industry couldn't afford to begin to pay the legal fees involved even if they might see those fees return in a final judgment. Doesn't do much good if you have gone bankrupt and out of business before the case is settled.

Lets face it, some businesses have a nasty habit of releasing their legal hounds if they think they can intimidate a smaller business into capitulating by way of driving them into insolvency if they decided to make a fight of it.

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And note the following statement from the D20/OGL FAQ:

"One of the objectives of the OGL/d20 project is to create a "safe harbor" that clearly identifies material that can be used, derived from, modified, and distributed without fear of litigation. To that end, the SRD contains material that is public domain, copyright, and somewhere in between. But using the OGL, it all carries with it the same, uniform set of rights, thus creating the safe harbor."
All of which I can do under copyright law as long as I take those mechanics from the SRD and rewrite them so as to avoid using the original expression of them. You cannot copyright game mechanics.

And before you ask, yes I have been through all of this with IP attorneys who I have employed, that are family, and are friends of family. They all pretty much agree that the OGL doesn't offer much in the way of additional protections. It expands your rights a bit in that you can use material released under the OGL verbatim, but no extra protections from litigation.

I don't really have an issue with the OGL, it's a good thing in that it does allow you to take other material released under it and use it verbatim. I do have an issue with the 'safe harbor' it supposedly puts into place.
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  #295  
Old August 15th, 2007, 08:20 PM
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Originally Posted by hunter View Post
No more unlikely than being sued under traditional copyright law if you follow the terms of the law.
I disagree. And given the explosion of OGL materials that occured after WOTC created the D20 OGL, it appears that a majority of RPG manufacturers agree with me.

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Originally Posted by hunter View Post
Not if the material wasn't legally placed under the OGL in the first place.
I don't know how to say any clearer than I already have -- "There's always a danger of inadvertent copyright infringement in *any* license/sublicense agreement. The OGL does not make this any better or worse than it already is, in my opinion."

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Originally Posted by hunter View Post
Simply because you weren't the one who originally placed it illegally under the OGL doesn't give you a free pass.
I never said it did.

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Originally Posted by hunter View Post
In the best of situations you will still be required to destroy any material containing the copyright violations, and in the case of printed material this could easily bankrupt a small company.
Again, I can't say any clearer than I already have: "And as long as you follow the terms of the OGL (WHICH INCLUDES CORRECTLY LICENSING THE PROPERTY LICENSED BY THE OGL), you are extraordinarily unlikely to be sued. Even if you are, the licensor of the material will be unable to prevail, since he licensed his material via the OGL."

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Originally Posted by hunter View Post
The OGL in no way ensures that you won't be sued.
Can't say it any clearer than I already have: "while it is technically true that anyone can sue for anything, a licensor who sued for copyright infringement of OGL-licensed material would quickly lose a motion for summary judgment and could wind up paying the defendant's legal fees. In my experience, few plaintiffs are that irrational (and fond of paying legal fees)."

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Originally Posted by hunter View Post
Nor does it stop you from going broke in legal fees trying to prove your case in the event you are sued.
As WOTC said: "One of the objectives of the OGL/d20 project is to create a "safe harbor" that clearly identifies material that can be used, derived from, modified, and distributed without fear of litigation. To that end, the SRD contains material that is public domain, copyright, and somewhere in between. But using the OGL, it all carries with it the same, uniform set of rights, thus creating the safe harbor."

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Originally Posted by hunter View Post
Lets face it, some businesses have a nasty habit of releasing their legal hounds if they think they can intimidate a smaller business into capitulating by way of driving them into insolvency if they decided to make a fight of it.
"while it is technically true that anyone can sue for anything, a licensor who sued for copyright infringement of OGL-licensed material would quickly lose a motion for summary judgment and could wind up paying the defendant's legal fees. In my experience, few plaintiffs are that irrational (and fond of paying legal fees)."

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Originally Posted by hunter View Post
All of which I can do under copyright law as long as I take those mechanics from the SRD and rewrite them so as to avoid using the original expression of them. You cannot copyright game mechanics.
Agreed that this is the current state of the law. As I said earlier: "Ideas cannot be copyrighted, but their expression can. This glib statement has proven difficult to apply in the Real World. Thus, business were unsure as to just how much they could take from (say) AD&D without infringeing on TSR/WOTC intellectual property. And even if a defendant ultimately won, the cost of fighting might put him out of business."

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Originally Posted by hunter View Post
And before you ask, yes I have been through all of this with IP attorneys who I have employed, that are family, and are friends of family. They all pretty much agree that the OGL doesn't offer much in the way of additional protections.
I never said that it offered *additional* protections. I said that it creates a "safe harbor", which is an entirely different thing. It removes doubt about legal exposure (assuming compliance, etc.)

And as I noted, the explosion of OGL D20 materials is strong evidence that a lot of game manufacturers agreed.

That said, it sounds to me like you either got incorrect legal advice or are misremembering what was told to you.

As an example of an "additional protection", consider the fact that while game mechanics cannot be copyrighted, their expression (i.e., the particular arrangement of words used to describe them) can be. So if there was no OGL, you could duplicate the *mechanics* found in the SRD. But you would violate the author's copyright if you copied the sentences verbatim. Under the OGL, you are given the legal right to copy sentences verbatim. The same would be true of trademarks that might appear in the SRD.

So it's pretty obvious to me that the OGL does, in fact, grant additional legal rights in otherwise copyrighted and trademarked material.

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Originally Posted by hunter View Post
I don't really have an issue with the OGL, it's a good thing in that it does allow you to take other material released under it and use it verbatim. I do have an issue with the 'safe harbor' it supposedly puts into place.
Well, it seems clear to me that it does constitute a "safe harbor" as we lawyers define that term.

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  #296  
Old August 15th, 2007, 09:06 PM
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I don't know how to say any clearer than I already have -- "There's always a danger of inadvertent copyright infringement in *any* license/sublicense agreement. The OGL does not make this any better or worse than it already is, in my opinion."
I have not disagreed with this at all. I disagree with the idea that somehow it provides you further protections.

Quote:
Again, I can't say any clearer than I already have: "And as long as you follow the terms of the OGL (WHICH INCLUDES CORRECTLY LICENSING THE PROPERTY LICENSED BY THE OGL), you are extraordinarily unlikely to be sued. Even if you are, the licensor of the material will be unable to prevail, since he licensed his material via the OGL."
You are totally missing my point. I am not referring to being sued by someone who legally licensed their material via the OGL. What I am referring to is this. Company A owns X material. Company B for some unknown reason takes material from X, doesn't sufficiently change it to avoid copyright infringement and then released it under the OGL. Company C takes the material from Company B's OGL product and without realizing that part of that material was used illegally proceeds to use it in their own product. Company A now finds out about the use of their material illegally and proceeds to sue Company B and Company C.

At no point did Company A license the material.

This is a REAL potential danger, particularly given that most of those releasing material under the OGL have not bothered to consult an attorney, nor have a real understanding of the OGL or copyright law. While they may have done so without malice, but it still leaves you on the hook if you used that material.

Quote:
Can't say it any clearer than I already have: "while it is technically true that anyone can sue for anything, a licensor who sued for copyright infringement of OGL-licensed material would quickly lose a motion for summary judgment and could wind up paying the defendant's legal fees. In my experience, few plaintiffs are that irrational (and fond of paying legal fees)."
I've lived with attorneys long enough to know that it's not difficult for a larger more well funded company to drive a smaller company into bankruptcy from legal fees even before a summary judgment can be rendered. As an attorney you damn well know there are all sorts of delaying and stalling tactics that can be used to do this, particularly if the defending attorney isn't worth his fee.

Quote:
I never said that it offered *additional* protections. I said that it creates a "safe harbor", which is an entirely different thing. It removes doubt about legal exposure (assuming compliance, etc.)
As I noted above, that is a fallacy because it is dependent on those who come before you properly releasing material they legally have a right to release. Simply assuming that any material under the OGL is there legally is asking for trouble.

Quote:
That said, it sounds to me like you either got incorrect legal advice or are misremembering what was told to you.
Doubtful. My father and his associates are pretty good about making sure my ass is covered Now if I only had a doctor in the family...

Quote:
As an example of an "additional protection", consider the fact that while game mechanics cannot be copyrighted, their expression (i.e., the particular arrangement of words used to describe them) can be. So if there was no OGL, you could duplicate the *mechanics* found in the SRD. But you would violate the author's copyright if you copied the sentences verbatim. Under the OGL, you are given the legal right to copy sentences verbatim. The same would be true of trademarks that might appear in the SRD.

So it's pretty obvious to me that the OGL does, in fact, grant additional legal rights in otherwise copyrighted and trademarked material.
I said exactly this in my previous post. That is the only real advantage to the OGL.

Quote:
Well, it seems clear to me that it does constitute a "safe harbor" as we lawyers define that term.
And as I pointed out earlier in this post there are still potential pitfalls in the methods used in the OGL. You do not always know for a fact that the material you are using is legally released under the OGL. If it's not and you use it, even unwittingly, you can expect at the least to get an order to cease distribution of the product containing the material and have it destroyed.

What it seems to me we are disagreeing is the term 'Safe Harbor'. You've said it doesn't offer additional protections, which I agree with. And I'll even agree that it does offer you a removal of doubt about legal exposure, but only if you can be assured that the material that you are using under the OGL is under the OGL legally in the first place. But that's not something you can be sure of is my point. There is no mechanism under the OGL for this kind of assurance.
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  #297  
Old August 15th, 2007, 09:13 PM
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What it seems to me we are disagreeing is the term 'Safe Harbor'. You've said it doesn't offer additional protections, which I agree with. And I'll even agree that it does offer you a removal of doubt about legal exposure, but only if you can be assured that the material that you are using under the OGL is under the OGL legally in the first place. But that's not something you can be sure of is my point. There is no mechanism under the OGL for this kind of assurance.
In the heat of debate, I've forgotten one of my cardinal rules -- I don't argue the law with laymen unless they are paying my hourly rate. Therefore, I must bow out...
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  #298  
Old August 15th, 2007, 09:16 PM
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In the heat of debate, I've forgotten one of my cardinal rules -- I don't argue the law with laymen unless they are paying my hourly rate. Therefore, I must bow out...
Fair enough, though I was enjoying it I certainly hope you didn't take offense to anything I said. I honestly don't think we are that far apart in what we were saying, more a matter of semantics. But I could be wrong.
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  #299  
Old August 15th, 2007, 11:52 PM
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What I learned today about publishing games:

1. When shamelessly stealing rules, REWORD THEM!

2. Hide your assets to reduce the potential loss in case Microsoft decides to sue you because Bill wants to dominate the RPG market.

3. Have your work printed and shipped from China where it is much harder to enforce copyright laws.

Have I missed anything?
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  #300  
Old August 16th, 2007, 12:16 AM
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What I learned today about publishing games:

1. When shamelessly stealing rules, REWORD THEM!
Would help if you can tinker the mechanics around a bit too, but basically yes.

Let me be a bit more specific however, we are talking about the actual mechanics. And you better be damn careful how you do it. As tbeard was saying, it's not something that has ever really been tested in the courts. If you do it and you do get hit, you better be able to prove that what you have is original material even though the concepts and mechanics are from another system.

A very interesting experiment going on right now is OSRIC which is basically an OGL version of AD&D. It is based on the d20 SRD only where they felt they couldn't directly based it off the original AD&D system. Which goes to my point about something released as OGL that might have potential problems if WotC decides they want to challenge it. If I as a publisher chose to produce material using OSRIC and WotC later decides to challenge it and does manage to win, they could and likely would force me to recall any remaining books in the distribution channel (which I would have to refund) and destroy the remaining stocks. Not to mention payments for books already sold, potential damage awards, etc. Now I am not saying I think WotC will challenge it, nor am I saying WotC is guaranteed to win if they did. I'm just using this to illustrate my point about the pitfalls of the OGL.

You can patent a mechanic, as WotC has done with regard to certain mechanics in CCGs, but I'm not sure how well that is actually standing up against reality.

Quote:
2. Hide your assets to reduce the potential loss in case Microsoft decides to sue you because Bill wants to dominate the RPG market.
Yah never know! Microsoft: The RPG...

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3. Have your work printed and shipped from China where it is much harder to enforce copyright laws.
That won't help if your company is based in a country that honors and upholds copyright law. But it is often much cheaper to have it printed there and shipped here than to have it printed here!
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