----- Original Message -----
Sent: Tuesday,
June 01, 2004 12:11 PM
Subject: Re: [Ogf-l]
Section 1 Definitions
In
a message dated 6/1/2004 11:18:40 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
<<It is infinitely
more useful to me to see someone say "I want to create a game that does
X,Y, or Z but I'm not sure how the license would allow for it because of
Section A, sentence B." It is a concrete example of an issue with the
license that I can help with or learn from. If you're actually publishing or
looking to publish then this makes sense. If you're an armchair lawyer looking
for nits to pick then you're wasting my time.
>>
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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