<<This is a black & white issue. If, and only if, the work you are defining as PI is an enhancement over the prior art (insert Spike's expanded definition of "prior art" if you need to do so), AND you can demonstrate that a 3rd party is using it AND NOT some other content from
some other source, THEN AND ONLY THEN you can enforce your claim. >>
Why? If ownership is not at issue (the only restriction on PI other than that it be on the laundry list is that it be "owned" somehow) I don't know why.
You and I can certainly contract as follows: Let's pretend I hate the character Thor with a passion (I don't, but let's pretend that I do). Next, toss out the OGL. Let's write a contract from scratch to simplify things. So I agree to this contract with you:
Ryan can use Lee's work provided that Lee's work not be published, in whole, or in part, in any volume containing the word "Thor". If it is published with the word "Thor" in the volume, the agreement is terminated and Ryan is in violation of copyright law. Otherwise, Ryan can distribute Lee's work free of charge per the terms of this agreement.
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I see no reason why that agreement would not be binding (if combed through to clean up the language and add additional, needed information).
So, contract law clearly allows you to agree to waive rights you might otherwise enjoy to access something of mine that you want. Grant and consideration.
I see no reason why I need to have created the character of Thor to put mention of the character in as a binding clause in the contract.
Now lets make the contract more generic: Lee is going to attach a list of characters he hates. If Ryan agrees not to publish any work containing any of those characters' names he can use Lee's work.
Again, this does not, in any way, require that the list of names I attach be an enhancement over the prior art. You know what would make that requirement: a definitional requirement that said that the list of names I attach have to be those referring to characters which I created myself, and which were an enhancement over the prior art.
The above language doesn't contain such a clause, so the list of characters could include Merlin, Thor, Loki, and half a dozen other character that I didn't create, that aren't an enhancement over the prior art, and because you are agreeing not to use them (to waive your rights to use them) that is the only reason you get to use my copyrighted text.
I don't see specifications for PI that exist that clarify this matter. I think reformation would be required to answer the question of ownership unambiguously. I think that otherwise, the OGL is a much more complicated, structured version of my above agreement to let you use my work so long as the work is not published in conjunction with things I don't want it published with.
So, again, I'll ask one more time, given that contracts can be constructed this way, what about PI requires it to be an enhancement over the prior art.
The laundry list of items is so huge that almost anything could be declared PI, it seems. The big restriction: ownership. You have to own the PI. But the OGL doesn't define ownership, and it's difficult to imagine a "theme" or a "pose" that I could establish sole ownership over.
<<Do you understand the difference between "your PI claim has no value" and "your PI claim is invalid"? Do you understand why this critical difference makes your previous dozen or so messages moot?>>
The above example I've shown illustrates why I believe it is not moot. A contract can be made to waive your right to use something that everyone else in the world has a right to use if you want to, in turn, use something of mine.
<<Hopefully, this will be the end of this thread.>
>
Not for me -- you are reading in assertions that I don't see in the plain language of the license. There is no requirement that PI be anything than something on the list (a character name such as Thor qualifies) and "owned".
Only if we first establish that "ownership" is defined by creating something that is an enhancement over the prior art, would I agree with you that yours is the only interpretation. Nothing in the license suggests that "ownership" must defined that way or any other way. I think it really needs clarification.
If I create a brand new character and call him XXHJKLJYT and don't claim any trademark on it, do I own the character name? Not under copyright law, except for its use in a specific context perhaps. Not under trademark law. Under the OGL? Who knows. Ownership is only implied for OGC and is not addressed at all for PI.
Why can't the above contractual construction exist in the world? Why is the OGL not a contract of that construction? And what in the OGL demands that PI be an enhancment over the prior art?
Lee
