>> It's my understanding that "derivative material" would include, IMO, a
"Shadow Weapon" where a "Shadow Weapon" is a name being based on the name
"Shadow" from the SRD,
> There is mistake number one. The name doesn't come from the SRD. It uses a
word that also happens to be in the SRD.
A theoretical case, under a specific theoretical circumstance, as an
example, is not on its face a mistake simply because the actual case you are
discussing doesn't also embody the circumstance from the theoretical case.
I believe that my theoretical case is sound, given the circumstance I apply,
and you seem to be stating that the actual case you are discussing doesn't
match my theoretical case because your actual case doesn't embody the same
circumstance. I don't presume to make an assumption about an actual case,
merely to discuss a case in theory, to highlight a situation that is
potentially problematic.
(There's not much else in the beginning of your response I can directly
address since it makes the assumption that I might believe that my
theoretical case is a match for your actual case when, in fact, I have not
come to a conclusion regarding your actual case. I'll discuss my position a
bit further then move on to the discussion of some of the examples I laid
out in my last email.)
I suppose it boils down to the ability and interest in challenging an actual
case, and the ability and interest in defending an actual case. If it is
maintained that the name of the material is independently developed from OGC
sources, while that the body of the material is derivative of OGC sources,
regardless of the similarity between the name of the material and the body
of the material, then I'd imagine that your PI claim might hold up as valid
if challenged.
I would further suppose it might fall to the manner in which it was
challenged and where the burden of proof fell. If, for example, someone
wished to challenge a PI claim directly in court, it is my understanding
that they would have to have the right to make that challenge and would have
the burden of proof to show that such a PI claim was invalid. If, in
another example, someone who felt the PI claim was indefensible disregarded
the PI claim and deemed their position strong enough to weather a challenge,
then wouldn't the right to challenge be in the hands of the originator of
the PI claim? In that case, wouldn't the burden of proof fall to the
originator of the PI claim, and wouldn't that challenge have to include a
clear trail of independent creation to support that declaration of PI? In
that case, would simply the assertion that there was independent development
be enough? In that case, wouldn't the similarities between the name of the
material and the body of the material weaken such an assertion?
(Moving on to my previous examples...)
>> Can I declare "Stone Mace" (as an object) as PI (and have it considered a
valid declaration) where the element, "stone", and the weapon, a "mace", are
commonly used within the current game mechanics and if I base my "Stone
Mace" on the commonly understood concepts as expressed in prereleased OGC of
that element and that weapon?
> Sure. Why you would want to, I dont know. But you could.
I am not so sure. If the PI "Stone Mace" was maintained to be a "thematic
element" then it certainly might fall under the aspects of the defined term
of "Product Identity" but I would contend that it would have to be specific
to an overall theme, to thus be an element and therefore warrant such a
claim, and I would further contend that the name would need to be denoting a
specific item or items rather than being applied to just any maces that are
also made of stone to be considered a "thematic element". I do not know
what other area of the definition of PI might apply to the declaration of
"Stone Mace" (as a textual phrase) to support its validity as a PI
declaration.
>> Can I declare "Running in Space" (as a Feat) as PI (and have it
considered a valid declaration) where the description of that Feat borrows
portions of the description of the "Run" Feat and borrows from the
description of the game mechanic "Space"?
> Of course you can. That proper name could be PI.
Again, I am not so sure as you. While the name of a Feat might be able to
be declared as PI (if one contends that a Feat is considered a "special
ability" since the name of a Feat is not specifically mentioned as being
able to be declared as PI), I do not believe that extends as broadly to the
names of derivative material when the name is also clearly derivative from
the body of the description of the material. To further this example, what
if I used some of the same source material (the "Run" Feat), adjusted it
only slightly from the source material, and declared the name "Running" as
PI? At what point does the naming clear the hurdle of the final phrase that
defines PI ("and which specifically excludes the Open Game Content;")? If I
double the value of benefit of a Feat and rename it with the prefix
"Improved" does that clear the hurdle?
>> Can I declare "Doubled Armor Class" (as a game mechanic) as PI (and have
it considered a valid declaration) where Armor Class means the same as it
does in the SRD and where "Doubled" simply describes the process of simply
doubling the number (in any case) of an "Armor Class"?
> If that was a feat name or an ability name of some type, I think yes. If
you were just using the term to describe a condition, no.
Again, while a "special ability" is part of the defined term "Product
Identity" the terms "Feat" and "ability" are not specifically used. It begs
the question, does "special ability" in this case refer to the defined term
in the SRD, or is it meant to be a general term that includes Feats? You
mention "condition" as a concept or term that is not available to be
protected by a declaration of PI, but if such a state as "Doubled Armor
Class" is only applied as a condition in special cases and can be applied at
the discretion of a character, therefore being an ability, in a general
sense, does it not fall under the term of "special ability"? Or is it that
"special ability" is meant to be defined as a "Spell-like Ability", an
"Extraordinary Ability" or a "Supernatural Ability"? Again, though, I would
contend that the naming of something as derivative as "Doubled Armor Class"
even when it is meant to name a "special ability" would not clear the hurdle
of the final phrase that defines PI ("and which specifically excludes the
Open Game Content;").
Our difference of opinion seems to lie in that final phrase the "Product
Identity" defined term, and the definition of "Derivative Material".
> I dont see a mechanism in the license for challenging whether or not a PI
designation is untenable.
Nevertheless, while there isn't a mechanism to directly challenge an invalid
declaration of PI, in some cases, isn't the burden of challenge on the
defender of such a declaration should someone choose to ignore such a
declaration? While the license might present a set of circumstances as safe
harbor for multiple parties to share their Intellectual Property in the form
of material that falls under copyright, and while it might also present the
parties with the ability to further protect their Intellectual Property that
falls under trademark, I do not believe it limits redress to mechanisms
within the license in cases where someone has not met the terms of the
license. There are, albeit not in the license, mechanisms in place to, at
least, indirectly challenge a declaration of PI where said PI violates
trademark or copyright claims. As such, if a PI claim is felt to be
"Derivative Material" and potentially misused by the terms of the license,
might that usage then not fall outside of the purview of the license and
might it not be possible to bring suit on the basis of copyright
infringement against that someone who may have erroneously declared that PI?
To use a separate example, if someone claimed "Necromancer Games" as PI in
their publication wouldn't the most efficient avenue for redress be to bring
suit against them directly in regard to the trademark as opposed to
challenging their PI declaration directly?
> I view the name of a thing as not stemming from the SRD, even if that name
includes a word that is also in the SRD.
This is essentially the crux of the difference of opinion we have. I do not
share your view of the definition of "Derivative Material" in so far as a
name of a thing that uses a name that is in the SRD and when the description
of a thing so named also uses in its description material derivative of
material in the description of the thing that is named in the SRD.
(The remainder of your response doesn't engender a level of respect that I
will directly address. The further concerns in my previous email are valid,
despite your rhetoric to the contrary. If you wish to readdress them in a
respectful manner, I will determine at that time if it warrants a further
response on my part.)
As always,
Mark Clover
Creative Mountain Games
http://www.creativemountaingames.com
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