This is a public post of some private G+ messages. I like to keep my G+ messages off of public mode, so here is what I posted last night, slightly edited for clarity.
Note: for the record, I'm not anti-OGL as some people claim. It's a good framework for people who want to charge money for their work. For everyone else, it's not.
After the kerfluffle I inadvertently started in the White Star: White Box Science Fiction Roleplaying circle regarding the publisher of White Star wanting the entire OGL included in a one page adventure/dungeon contest a community member was running for shits & giggles, I've been wondering if there is a better way to release work online. (You can go look it up -- my stance is that it goes against the spirit of the OPD and introduced too much legal bullshit into a fun fan project, but others--mainly the mods and publishers--vehemently disagree).
I'm not really in favor of the OGL and I have issues with Creative Commons, too -- but I'm thinking maybe I should just use a more restrictive no-derivates, no commercial use version of the CC license.
But at the same time, I want people to feel free to share and use and remix my stuff, as long as they let me know they're doing so. I'm cool with people using my stuff for profit -- if they ask me first and acknowledge my contribution in their product and maybe kick me a free copy.
I'm in favor of open gaming in concept and in practice at the table, but what works best for giving writers and creators the flexibility to do what I've outlined in the paragraph above?
I don't like being a bean counter counting every instance of every creature to stick on a copyright section in the OGL. I'm dashing shit together to freely use, not to make money and infringe on someone's right to make money off their creations. I'm a fan who creates works for fans for free (or at-cost printing, at the most). I do this for fun, not profit.
I am seriously considering saying screw it all in terms of worrying about this shit and switching away from the OGL and the Creative Commons in favor of the GNU Free Documentation License for my RPG-related stuff--just giving it away and not worrying about who does what with it.
As a fan and end-user of material created under the OGL, the CC, or whatever license, that license does nothing for me. In fact, it restricts my creativity with the material, and as a fan creating derivate amateur not-for-sale works, I am better off ignoring those licenses.
Let me put it this way: fan fiction exists. Fans read books they love and then write and share stories based in other people's universes. Writers and book publishers know fan fiction exits -- even fan fiction which twists an author's creations in ways that the author may not like (slash fiction, for example). These writings infringe on copyrights six ways from Sunday.
But authors and book publishers know it is pointless to try to stop people from writing and freely distributing fan fiction because the fans who write it are the most rabid supporters of those authors and support those authors with their checkbooks.
It isn’t until someone tries to get fan fiction professionally published (50 Shades of Grey, for example) that the guns come out and the fan writer needs to make sure that the work abides by whatever draconian legal code exists to expunge references to copyrighted works they have used without permission. Either that, or the fan writer must seek and pay for permissions to use that work (which can run thousands of dollars in some cases, such as inclusion of song lyrics in a story).
In other words, by insisting that not-for-profit amateur fan-created work abide by and carry an official license, all the publisher ensures is the ill will of a community consisting of their greatest supporters. Instead, companies are better off turning a blind eye to nominal infringement if that infringement boosts the chances of the company making more of a profit over time from those fans' purchases.
Does someone who builds their own Stormtrooper cosplay outfit have to pay a licensing fee to Disney? No. And Disney would be stupid to go after those people who do so, because those people are the ones who most avidly support the Star Wars franchise through their fandom. But if that fan started selling cosplay Stormtrooper costumes she built -- well, then Disney has a legitimate beef, as the fan is profiting off of Disney's property. As long as the fan does what the fan does in the name of fandom, Disney has no problem with her. But if Disney went after that fan just for creating and wearing her own cosplay outfit at ComiCon or StarWarsCon or ImNotaCon, the Internet would light up with bad publicity.
WotC (actually, it was TSR then) learned that lesson in the years before the OGL when they threatened to sue fans for publishing fan works online (waaay back in the mid to late 1990s -- look it up). The OGL was a ham-fisted response to assuage fans and let them circulate material without fear of being sued. But some folks saw it as a way to legitimately publish work and the d20 era was born. (This previous sentence was incorrect -- the retroclone era was born out of the d20 era which flourished under the OGL).
But in the early days of the OGL, a lot of d20 publishers ran afoul of its terms (Fast Forward, etc.) and WotC brought out the big guns and quashed them. And thus the fear runneth over. Now, every publisher is scared as hell that WotC will come after them if they are caught infringing the OGL, so they go as far as to document every piece of IP in the OGL declarations and even police fan-created work. It's worked for folks who can afford to do it -- Paizo, Frog God, Goodman Games, and a few other brave souls who have managed to create and run businesses by making sure they don't run afoul of the OGL in any way.
But fans are not businesses. Fans are people who love the stuff the businesses have so meticulously created, and we have rewarded those business for their due diligence with our wallets when we buy their products. But the businesses do not get to dictate how we use those products in our own homes, at our own tables, in our own games. We live in a different age and the Internet tools we have at our disposal are powerful and easy to use and make creation and distribution of unofficial fan material easy and fun. There has been a generational shift in attitude regarding the use, reuse, and remixing of creative works. Many people in their 40s (like myself) and older are uncomfortable with this change because it undermines their entire worldview of how stuff gets made and circulated and who controls what gets made and who makes money off of it. They see fan material as undermining the effort and time and money they put into creating their businesses, and thus they fear losing control of the work they created by the sweat of their brow. And they are right -- they lose control the moment they put it out into the world for others to consume. Our ability to create and the tools we use to do so have outpaced our laws and the legal frameworks upon which control of our creations have been based for hundreds of years (remember--copyright is enshrined in the Constitution of United States).
Publishers and rights-owners need to recognize this shift and start making plans to work within this new digital age or be left behind. While this country is still run by old white men in power, it won't be for long as our demographics are shifting (which is why the old white men in power are yelling even louder and looking more ridiculous and proving themselves ignorant every minute donald trump). The RPG industry, for all its inclusiveness of individual identities, still embraces a culturally conservative economic model when it comes to the marketing and sale of creative capital.
And that's a damn shame.