As many of you know, I am a lawyer and a game publisher. I frequently help out gamers and game publishers with legal issues, including dealing with licenses. So, I had more than a few people ask me my thoughts about the #Numenera license from +Monte Cook 's Games. I've seen it get some conversation elsewhere. +Rob Donoghue has a thoughtful post on the matter over on the +Evil Hat Productions blog (
http://walkingmind.evilhat.com/2013/10/08/numenera-licensing/), and there's a robust discussion of it on the Ninth World fansite (
http://theninthworld.com/thoughts-numenera-licensing/). I posted some brief comments on twitter last night and quickly realized that I needed to expand on that a bit as they could easily be taken in the wrong light. So, here goes:
For starters, I'm only addressing the legal issues. I have no issue with the license as a matter of policy. I think it is well crafted to accomplish what Monte is looking to do, i.e., foster a healthy fan-based community. I understand the basis the various elements of the license, e.g., the $50 fee, the sales cap, the crowdfunding restriction, etc. I should also mention that I have the utmost respect for Monte both as a publisher/designer and, more generally, as a person. Some of my earliest publishing work was playing in Monte's sandbox. Indeed, my very first publication, Poisoncraft, included conversion notes for Monte's then-Arcana Unearthed (which, by the way, had its own, similar license).
That said, I just don't think the license is particularly well written as a legal document. Here are some of my concerns with it as a legal document:
First, without getting too knee-deep into legalese, the license is a self-contained legal document, a contract. Statements made outside the four corners of that document would generally not be admissible to interpret or modify it under the parol evidence rule. So, explanations about what something in the contract means presented on a forum, in an e-mail, or an twitter are not helpful.
Relatedly, there are some ambiguities in the license:
a) What constitutes a "sale" for purposes of the $2,000 cap? MCG has clarified in a couple of places that they mean it to be on the net sales, but see #1 above. Even that doesn't solve the issue. If I can deduct the vendor's cut, can I also deduct, say, royalties paid to writers or illustrator?
b) What happens when I hit the $2,000-sale ceiling. I'm highly unlikely to hit that number on the nose. Let's say I notice when I get to $2,073.82. As a technical matter, I've violated the license.
c) What if I'm selling in a foreign country? Do sales in francs not count? Do I need to convert to US dollars?
d) The crowdfunding ban doesn't apply until the license is accepted. What happens if I've crowdfunded a setting and offered to do a Numenera version as a stretch goal prior to executing the license? Also, "crowdfunding" is itself fairly vague. I assume they mean crowdfunding sites like Kickstarter, but the language would seem to preclude even private crowdfunding.
e) It authorizes MCG to terminate the license at will without cause. As a technical matter, if I am producing a pdf, they could terminate my license before I even start selling it. I certainly wouldn't expect them to do that. But the bigger problem is that it might constitute an illusory promise, which makes the contract void generally.
f) It does not have a choice of law provision. That makes it unclear which state's law would apply in any court case between parties of different jurisdictions. Now, what if I'm in a different country altogether?
g) It requires you to send them 3 copies of the work. Even if it's a pdf. Silly, I know, but I point it out only as an indication that the license wasn't particularly well crafted.
h) It uses "thereof". Man, I hate that word.
I'm not highlighting these issues to be mean-spirited. I'm not trying to offend Monte or whoever wrote the license. As I intimated on twitter, I'm frankly not sure they care all that much about its utility as a legal document. It might be more of an exercise in nudge theory, discouraging the lowest form of third-party material and ignoring minor technicalities from legitimate producers.
I do think it's important to discuss this sort of thing in public for educational reasons, so people will have an idea of some issues they might not otherwise consider. A license is a legal document. I wouldn't ask a game designer to craft a license any more than I would ask a lawyer to design my game. (Present company excluded of course.)
