Beautifully, done, Andy. While I'm a (very) small publisher, I'll chip in my 2 cents here, too... for sake of clarity, I'll respond to point 3 first, followed by point 2, for reasons that will shortly be clear...
Andy Collins said:
3) I'm fiercely protective of copyright, regardless of who owns it. I believe that it's no more "OK" to illegally distribute a book that's sold 100 million copies for a multibillion dollar transnational megacorporation than to rip off a guy trying to make rent money by self-publishing his fiction. I recognize that not everyone shares this opinion--I've had to come down hard on a player *in my own campaign* who illegally obtained electronic files of books written by people I sit next to.
Here's where I'm a little less, um, zealous, I guess. Sir Thomas Babington MacAuley put it better in 1842 than I could today, so I'll just use his words... it's a long quote but beautifully explains the need for, and pros and cons of, copyright. And I doubt our politicians today even come close to his level of insight...
It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.
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I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. {Sigil's Note: i.e,. "patronage"}
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We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.
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It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.
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The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax.
Personally, however, I think this "tax" has grown to ridiculous proportions - to the point where it is no longer fair payment for services rendered, but has essentially reached the point of "slavery to copyright holders" since I do not expect to see any more work that is currently under copyright pass into the public domain in my lifetime, nor in the lifetimes of my children, nor in the lifetimes of my great great great great grandchildren. Since copyright has become in effect perpetual, I am no longer all for it. Simply put, I am for copyright in principle, but simply
not in the form it currently takes.
At the end of the day, I am all for defending copyrighted works - vehemently - for a limited amount of time. I *do* respect the amount of work that goes into creating them. I feel that copyright should be limited to the term for which an item is commercially viable, perhaps double that. I have HUGE problems with people who "sit" on copyrighted work on the odd chance that "someone, somewhere, somehow might turn a profit on this and it won't be me!" As far as I'm concerned, if you're not actively involved in trying to make money from a work, it is no longer deserving of copyright.
Thus, I will defend UA's copyright today - and vehemently so. It's still on shelves. It might even gather enough momentum for another print run. I'll probably defend it 2 years from now. Given the short shelf life of most RPG books, I'm NOT sure I would defend it 5 years from now. For example, I am much less enthusiastic about defending the copyright of, say, a book that has been out of print for 50 years and looks never to be printed again due to lack of interest than I am about defending the copyright of today's bestseller.
Andy_Collins said:
2) I think the d20 system license and the OGL are great for the industry. Obviously, publishers have to be careful about why, how, and when they use these tools, but I think overall, it's been beneficial both to consumers and to publishers.
I think the OGL, independent of the d20 license, is great for the industry, simply because it allows publishers to sidestep the "undesirable effects" of copyright to some degree. I firmly believe the OGL - and the GPL - would not have even needed to be conceived were it not for current draconian copyright laws - there would simply be more fresh, relevant information free of the "copyright tax."
4) Even after more than 3 years, I'm still trying to wrap my head around how #1, #2, and #3 all work together.
Here's how I think things work together... and this opinion is my own. I quote here Thomas Jefferson (emphasis mine):
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
Copyright, of course, is the antithesis of what Jefferson describes above - it is artificially imposing a paucity upon that which in its natural state may enrich all - for the sole enrichment of one. The OGL and GPL were established because people who owned the copyright to something substantial, useful, and important within their field of endeavor felt - perhaps rightly, perhaps wrongly (time will tell) - that in their specific field of endeavor, providing the ability for "multiple people to be able to independently build" on to the existing body of work quickly, simply, and immediately - without the onerous copyright "tax" (including tracking down the right person to ask permission) was more important, efficient, desirous, economically viable, you name your favorite reason, than was "collecting the copyright tax" for themselves. The OGL and GPL are, when you get right down to it, ways of going back to a Jeffersonian way of thinking of IP that uses existing copyright law to "force" Jefferson's views on those who wish to use the valuable copyrighted material that the authors of the OGL/GPL wanted to make available, but wanted to make sure that they too could reap the benefits of derivative works.
Obviously, by making material Open, a publisher is allowing for its redistribution by other parties--that's the whole point, after all. On the other hand, does that mean it's morally OK for me to scan & post on my site the open content of every d20 product that hits the market? There's a slippery slope there, and I think it's fair to say that different people are comfortable standing on different parts of the slope.
I don't agree. I feel that the point of the OGL and GPL is, in essence, to return to a time and place where ideas can be freely exchanged, examined, sorted, posted, discussed, et al -- without worrying about the copyright tax. This discussion, exchange, examination, et al is NOT the END to which those who created the OGL and GPL and the substantial "initial bodies of content" were working... rather it is the MEANS of accomplishing those goals.
Ryan Dancey, IIRC, stated that the original point of the OGL was to allow WotC to benefit from the "Skaff Effect" - the theory that all sales in a given market work to increase the sales of the market leader in that market. Or, simply put, the "end" of the creation of the OGL in the first place was to increase WotC's sales of the three Core Rulebooks. Nothing high and lofty and moral about that - it's simply good business.
However, what most publishers fail to understand... or if they do, they don't want to accept because it's not what THEY want... is that part of the means to that end includes the publication, redistribution, bundling, et al of Open Game Content - including for free on the Internet. You can't get the end without the means!
Now, every other OGL publisher - and this includes WotC itself on non-Core Rulebooks such as Unearthed Arcana - needs to understand that the OGL by itself cannot be part of their business strategy. The OGL by itself will not accomplish your ends because you're not selling the Core Rulebooks! Rather, you must use the OGL with regard to your business (or product) as a means rather than an end.
For many publishers, the OGL/d20 license are/have been a means of getting their name, their brand, their works, etc. associated with "D&D" or WotC. For others, the OGL has been a means of getting access to an established body of work; i.e., not having to write the basic game engine from scratch. However, because the terms of the OGL were specifically worded to reach one end - selling Core Rulebooks - using it to reach other ends is dicey at best... because the means it uses... the side effects, if you will, can be rather tough on your business model.
A publisher who doesn't go into the business understanding the ramifications that using a tool like the OGL - which was NOT designed to meet your needs exactly - brings with it. There are at least two ways to deal with this - #1, try to lock down as much content as possible so the OGL's side effects have as small an effect as possible on your business plan. #2, develop a business plan that accounts for the side effects and at the very least tries to make them irrelevant.
I happen to fall into #2. My goal in writing OGL works is simple... I want to have a little fun and contribute something to the gaming community. What this means is that if someone takes my OGC and publishes it on the web for free,
that accomplishes part of my goal - it contributes to the game community! My ancillary goal is to bring in a little (a VERY little) money on the side. Clearly, not all businesses can (or should) run this way.
I wouldn't feel good about widely redistributing significant portions of Open Content except as part of a new product designed to add additional value to the entire system (or for my own personal use, but even then I'd only do so from a product I already legally owned). To do otherwise, I believe, is a disservice to those who've put hard work into the creation of that content, and ultimately serves to dissuade companies from continuing the practice.
Agreed on some points. I wouldn't feel bad if someone sent me huge, legally distributed chunks of OGC from a product I didn't own, provided THEY acquired it legally. I wouldn't feel bad about incorporating it elsewhere. Because that's the nature of Open Game Content... it's SUPPOSED to be there for the taking. As for companies being dissuaded to continue the practice of generous OGC delcarations - well, again, that's part of the OGL... if you don't like the risk, the prospect of redistribution should have dissuaded you from continuing the practice before you got started.
5) I also recognize that in the end, people are going to do what they want to do. Those who want to download illegal copies of a sourcebook--whether its from Wizards, Malhavoc, Game Mechanics, or anyone else--will find a way to do it. That doesn't make the practice any less abhorrent to me, and I don't think it justifies the stance of "I might as well post it, since they'll get it somewhere else anyway."
Agreed with you on that.
I realize that in today's get-everything-for-free-on-the-Internet culture, these opinions probably mark me as the equivalent of a crotchety old geezer.
I guess I'll just have to live with that.
LOL! I thought I was ENWorld's resident old curmudgeon!
Seriously, though, while IANAL, I believe the term I would point to is "estoppel" - something to the effect when you agree to one thing in a legal matter, it becomes very difficult for you to change your mind and withdraw that agreement later on.
The bottom line is, as an OGL publisher, all of us - myself included - agree right at the very start to allow people to re-use our OGC in any way they want with a couple of strings attached. We do so in a very legally binding way. To turn around and say, "Well, even though we SAID you can re-use it in any way you want, it's not right to use it in this way..." well, that to me starts down a WORSE slippery slope. If there's one thing I believe VERY strongly in, it's "never lie." If I didn't want to give you permission to use my stuff in almost any way you want, I shouldn't have lied and said you could. Once I lie, and you catch me in it, can you ever REALLY believe anything I tell you again? No. My credibility is shot. If I don't want people to use things in a certain way, I don't lie to them and tell them they can in the first place - problem solved.
I will continue designating the text of my books as Open Game Content... because I really DO want people to use them. Any way they want (provided they use the OGL). I have tried very hard to be polite and courteous and maintain a high level of credibility.
A whole lot of the focus on these threads has been directed upon the would-be re-users... about whether or not legal re-use of Open Game Content is immoral, unethical, etc. And I think a lot of it is less about Open Game Content than about "Fair Use." People feel that "fair use" - by which I mean short excerpts, usually confined to personal use or within a small circle of friends - is the only ethical way to use material written by someone else. I happen to think that there is another completely moral and ethical way to use material written by someone else - the way they explicitly permit you to use it!
My focus, instead, would be on the publishers and what THEY are doing regarding the OGL and OGC.
Here are a list of things I feel are unethical with regards to using Open Game Content:
1.) Misrepresenting the work of another as your own. That doesn't mean you can't use anyone else's material at all. It doesn't mean you can't wholesale copy and paste and (within the ways allowed by the OGL - unfortunately the OGL makes it a little tricky to really give good attribution) give credit where credit is due. It *does* mean you don't simply wholesale copy and paste and try to pawn of the whole copy/paste job as your own idea (I could name a couple of PDFs that have literally been only direct copy/pastes of other products but which have represented themselves as original products). I had no problem with, for instance, the Pocket Grimoires from Green Ronin - yeah, it was all copy/paste, but they told you, "this is a collection of stuff from many sources." They were honest about it.
2.) Ambiguous or intrusive PI/OGC designations While WotC may not be enforcing them, a needlessly ambiguous or intrusive designation is probably in violation of the OGL (which requires such things to be "clearly designated") and since the whole point of the license is to allow people to re-use OGC, making it hard to figure out just what is OGC is akin to trying to to circumvent the license... in the same way that remaining silent when asked, "did anyone in this room see who did this?" when you did see the perpetrator may not be a direct lie (you're not telling a falsehood), but is certainly not telling the truth, either.
3.) "Crippling" your OGC I know, I know, the OGL "doesn't require me to make it easy for people to re-use my stuff" but this falls under the same general umbrella as #2 above. You're technically within your rights, but that doesn't make it ethical. The OGL is there to make OGC available, you're trying to make it "unavailable" - similary to security through obscurity.
I could think of more, I'm sure, but this post is WAY too long as it is. Regardless, the point is that before any finger-pointing is done - by publishers OR by re-users, it's probably a good idea to examine your own practices... are they completely above-board? Are they ethical? Do you feel ANY need to justify what you are doing? Are you being honest with everyone - including yourself - about what the OGL really allows to be done with OGC?
Bottom lines:
A. Publishers need to get paid for their work, as Joe Browning so eloquently stated.
B. Publishers need to be completely honest with themselves about what effect OGC designations may have on their ability to achieve A.
C. Publishers should never lie by making OGC designations that they don't really mean.
D. The OGL has been around for four years now. People should have some handle on what can and can't happen - there is little reason for a publisher to argue that they don't have enough information to reach conclusions with respect to point B.
E. Ethical would-be re-users should be entitled to assume the publisher "really meant it" when he said you could re-use his OGC. Part of being ethical is the reasonable expectation that others will act ethically as well.
F. An "enlightened" re-user (ethical or not) recognizes that transferring and posting OGC too soon after release probably cuts into profitability and thus can affect Part A above. By doing this, he adversely affects the amount of OGC available to him in future releases by forcing the publisher to re-figure B.
Thus, an "enlightened" AND ethical re-user ought to have no worries about what he does with the OGC (provided it's OGL-legal of course) but is enlightened enough to put a time lag on using it in a manner that could adversely affect sales.
The first burden of ethics is on the PUBLISHER to be totally honest with his OGC designation. It is *not* reasonable to expect the re-user to assume that the publisher's OGC designation "may not REALLY apply - he might REALLY have meant something different."
The re-user has the SECOND burden of ethics - to legally obtain OGC and to re-use it in the manner prescribed by the OGL - without taking undue credit for copy/pasted work as your own original work (again, "collections" et al are their own animals... in that case, the "work" is the collection, copying, pasting and arranging).
To expect anything else - from the publisher OR the re-user - is neither ethical nor wise, IMO.
--The Sigil
