Thursday, June 18, 2015

In which I respond to Erik Tenkar

In response to this:
http://www.tenkarstavern.com/2015/06/wherein-i-rant-about-ogl-compatibility.html

And this:
https://plus.google.com/+ErikTenkar/posts/2zxC8oA9mhS

Thanks for having the decency to include me on a discussion of my work, +Erik Tenkar. Right nice of you.

Please let me respond.

1. If you have access to the entire original PDF (I can email it to you if you want) you'll see that the whole damn thing is gonzo and intentionally full of juvenile snark and in-jokes. Taken out of context in a small snippet in the graphic posted on your post, sure, it looks like I am being flippant. Taken in the context of the document as a whole, the snippet that you show wherein I provide credits and links fits the overall tongue-in-cheek tone of the thing. Did you ever stop to consider that the whole point was to be asinine? If you can't see the tongue-in-cheek jokiness of the whole damn thing, from the opening title to the "an unsuitable adventure for any level" tag, then I guess you just don't see it or don't care to see it.

2. That said, fair use is a defense. And you obviously don't realize that fair use is entirely valid, too. You have to be accused of infringement first before you can claim fair use. There's a four factor test involved. Here's a brief overview written by a real lawyer, not a rules lawyer:

http://fairuse.stanford.edu/overview/fair-use/four-factors/

I predicted people would accuse me of infringement, and made a smart-ass wink and nod about it in the credits corner of that PDF. And look, I was right.

For the record, I think the original file passes that test on 3 counts: it's transformative, it's limited (I only used a small portion of the original artwork), and it has no effect on the potential market in terms of detracting from sales of the original work(s).

As pointed out by other commenters on your blog and your recent post about this stuff, even lawyers and judges have a hard time figuring out what is and isn't fair use and usually it's up to how good a mood the judge is in the morning he or she hears your case.

3. I didn't lock the threads I started in that forum. I did quit the forum because I obviously stepped on toes and it's better to leave than be kicked out. I did not expect the vehemence and down-the-nose-finger wagging in response to my posts, and to be fair, it was clear that I was not seeing eye-to-eye with the mods/owners. So I cut my loses. My one and only post in that community was deleted by the mods/owner, not me. After I left the forum, the moderators held up my file as an example and strongly implied I was a thief--but since I had left the forum, I couldn't defend myself.

4. Given the overblown concerns about the OGL and White Star Compatibility, I pulled the file from both Dropbox and Google Drive. I locked the posts providing links to those files so that others couldn't download them anymore until I could address the issues raised by the mods. I might be a jerk, but I try to be an ethical jerk. However, one of the moderators continued the discussion from the White Star forum on one of my posts in the OSR forum. I locked that post to stop the threadjacking as I thought it was/is kind of gauche to continue the discussion in a non-related forum. To be fair, I admit to threadjacking on the contest announcement in my responses to people's overly butt-clenching concerns to copyrights and use licenses. What was a friendly little contest among fans quickly spiraled into a "how do I cover my ass so I can keep control of my shit" discussion.

5. I locked a few other posts made last night because it was late and I did't want to deal with any drama first thing in the morning. Comments on my blog were wide open. Only two people bothered to comment. And of course, people could have sent me private messages. And some have, both in support and in criticism.

6. I locked a post this morning linking to the newly updated file because of the moderator issue explained in #4. My other blog update posts were unlocked.

7. The creators of White Star have a vested financial interest in the OGL. I get that. But fans don't. Fans creating amateur works to be shared with other fans and who are not selling that material falls somewhere between fair use and personal copyright. If the White Star guys want to police what end users create for themselves and share with their friends, they are going down a deep dark hole of whack-a-mole. TSR tried it back in the 1990s, and Palladium tried it in the early 2000s. And look what happened to them. You can't police the fan use of your material if you are encouraging people to be fans of your material. Disney does not issue C&Ds to cosplayers or fan artists who post on Deviant Art. Writers do not go after fan fiction writers. Retroclone designers are the one segment of creatives that backbite like deer flies. Because they are all riding on Matt Finch & Stuart Marshall's coattails and are living in fear of getting sued by WotC.

8. But if someone tries to sell something using White Star IP, then it is a whole different ball game, because it undermines the ability of the White Star creator to reap the economic benefits of his creation. Please note: no fan created content was being sold in the contest, nor were there plans to sell it. It was a "post your cool shit" contest, plain and simple, and then the White Star guys got all "protect our IP" over it. There were kneejerk reactions from myself and the White Star guys -- and we are obviously never going to see eye to eye over this issue.

9. Is the White Star compatibility logo a trademark? A quick perusal of this government database:
http://tess2.uspto.gov/ shows it isn't. In fact, White Star is a trademark for many other products, including a book publisher specializing in nonfiction educational books, but there's not one registered for a game product yet. But if you mean, D&D, well, then yeah, you got a point. But the OGL specifically excludes D&D as IP, so you can't be saying I'm pissing on the D&D trademark, right? Maybe the White Star guys applied for a trademark but it just isn't in the system yet?

10. I didn't enjoy the drama. I kept poking it when I should have let it lie. In fact, I made a huge mistake in claiming one person implied I was a thief (see #3), and it wasn't that person but someone else. It was late, and I misread the name of a commentator as that of a poster and fired off an angry PM before finally going to bed. This morning, when it was pointed out that I was in the wrong about that accusation, I apologized.

11. Also, did you know that posting a picture of my creation without my permission you are technically violating my copyright? Copyright violation and infringement is the backbone of modern social media. But I'm not crying foul over it.

12. You know what I'm really sorry about? I was one of many who pissed all over +Mark Hunt's excitement about the contest. For that, I am truly sorry. Mark, I owe you many beers.

As for the rest of you guys, not so much. I've had enough fake internet rage for one day.

I think I'm going to amble over to the Star Wars d6 G+ community where OMG! there is so much copyright infringement it will make your asshole disappear into your chest cavity.

update: please see this post for a bit more on my take as to what caused the whole kerfluffle.