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They're perfectly valid questions.. but as soon as
you start throwing out the term: 'Hypothetically' then I'm going to tune you out
because you're not really doing it. You're just talking about doing it and
haven't given me a reason to care. Engadge my interest.. show me a real product
that I might sometime buy.
The most useful piece of information you have there
is that Fudge will be going OGL. That's something that I can look forward to.
And if that's just hypothetical Fudge OGL then I'm going to be
annoyed.
>> How about this. Hypothetically I may want to produce a FUDGE supplement (when FUDGE goes OGL) involving derivations of: Godlike d20 Deeds Not Words Blood & Vigilance Four Colors to Fantasy Revised Mutants & Masterminds Anime d20 SRD Silver Age Sentinels d20 and Aberrant d20 (if it becomes available) I'll probably use the phrases Character Points and FUDGE points. However, if I decide to use "Power Points" and "Hero Points", these phrases are OGC in some of these products which pre-date M&M where the phrases are PI. Can I hypothetically ignore the PI declaration of these two phrases in M&M? Why? Why not? Question: Are those phrases even valid for PI purposes? It seems that PI has to be "owned" and since the phrases aren't trademarked and can't be patented or copyrighted I know no standards under which these short phrases can be owned under normal IP law. Are they "ownable" in the context of the OGL? Are they valid PI declarations? Next, M&M opened up the power construction rules in their entirety but listed as PI the costs of powers in the book, and 95% of all powers in the book use the OGC formula and power costing rules. Was the PI declaration over the outputs of the formula valid? Under what standard of ownership was the PI declared? What are the implications of the PI protections if they are valid -- can costs for almost identical powers be ported in from other games which were independently created? Or by opening up the costing rules have they effectively also opened up the costs resulting from the costing rules? We're talking about a declaration of the form: "# Effects" is OGC "# Modifiers" is OGC "# Effects + # Modifiers = Cost" is OGC The costs of the powers listed in this book are PI, even if they can be recreated from the OGC formula and OGC inputs. Is that valid? If it is, then PI rights are so expansive as to allow you to offer up an equation and it's inputs, but prevent you from recording its outputs. ----- Let's say they are valid. I find a very similar power in another one of these supplements, and it has an identical cost (as OGC) to the power that has the PI'd cost in M&M. Can I port over that power name and it's cost and merge it with the M&M description? Does that create a licensing breach? How? Why? Somebody else from the FUDGE List asked these questions of me a few months ago with interest in such a project. If I never take up the project myself, I ask it hypothetically here now to give you some very specific examples of real world implications of license usage problems. Such a port would somewhat different mechanics, customized FUDGE dice, and appeal to a different audience. And since these vendors aren't publishing for FUDGE right now in most instances, we aren't even talking about competing necessarily for the same group of fans. So this isn't really even a question of what's good or bad for the industry or what damages somebody else's wallet any more than any other supplement that leverages OGC. This is a pure question on rights, duties, obligations, and contractual construction which immediately comes into play for this specific project. Some of these theoretical cases instantly take on practical application in the right circumstances, and the circumstances aren't uncommon. ----------------- Another example. Everquest has been out quite some time. It has so much in it that's not OGC that creating an extract of it probably wouldn't significantly slice into sales. You try to do an extract. Thematic elements are off limits. What are the thematic elements in Everquest? How do you identify them? Based on what criteria that's absolute so that I can "clearly identify" these "thematic elements"? More and more people are starting to just lift 80% of the PI definition and toss it in as the PI declaration, creating a really amorphous subjective definition of what is and is not PI in a book. ------------------- You want to make use of a magical item property called "Gold" allegedly created by Monte Cook. The phrase is not patented or trademarked by Monte. The phrase cannot be copyrighted in isolation. Under traditional IP law the phrase is unowned. It cannot be PI'd in isolation unless ownership means something under the OGL that it doesn't elsewhere. But Monte PI'd the phrase anyway and opened up the rest of the text of the power. You want to use the magic item property in your next book. Can you list the property as Gold? Was that PI declaration valid? Why? Why not? If it's valid and if it prohibits you from placing "Gold" back as the title of it, then you are establishing ownership of the power description as a whole (copyrightable), and establishing that you have created a quid pro quo relationship whereby the licensee's rights to use the phrase "Gold" in a specific circumstance are curtailed in exchange for a license to use the rest of the text. You could just as easily have limited the use of the word "the" or the letter "e" in the section of the book where this power is ported to. Down that path eventually leads the forbidden terms reading of PI, since you can then PI any individual element even if it has no copyrightable value in isolation. However, it might simply be a forbidden terms application within the section of the work reproducing the "Gold" power, or it might be a more global restriction. Formulae are not copyrightable. But you could PI a formula under that reading because you set up a quid pro quo exchange saying, "you lose even your fair use rights to X in exchange for Y". Alternately, the short phrase "Gold" is not copyrightable. Except for the advertising constraints you read PI to simply mean "Unlicensed", and then might be able to ignore the PI declaration after you've been licensed the rest of the text. Or the answer may be something totally different. These are real world conundrums. And I've heard lots of good arguments on both sides. However, when people stop treating these as individual cases and look to establish rules and paradigms that are universally applicable, I often see the arguments shattering illusory PI protections, or expanding them far beyond what most people want and making them all too real and too expansive. I think the goal is to see what the actual rules, policies, and procedures for OGL usage are and to quit thinking about things on a case by case basis. Copyright and contract law are often handled on a case-by-case basis, but here we have a contract of adhesion involving 1000s of parties actively using it for professional or amateur use. So I think it's a bit more important to have a collective understanding of how things work. Your mileage may vary. Lee "Who thinks that theoretical discussions regarding what you are legally entitled to and obligated to do are very, very useful."
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