On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can declare Product:
> Tim, you asked for clearer examples and questions. I'll try to > explain myself better, because I'd like to hear your take too. > > The fundamental question is: does someone not listed in your section > 15 have rights to sue you under the OGL (not under copyright or > trademark law, but under breach of contract)? > Pretty tough question, and would most certainly depend upon the circumstances involved as I can easily two separate cases where the answer "yes" applies to one, and the answer "no" applies to the other. Plus there are sure to be a myriad of situations inbetween that really bullox things up. > One question has been debated ad nauseum before: is PI declared in > games everywhere binding upon everyone, or just in the games where it > appears section 15'd? > As Spikey pointed out much earlier, outside of the context of the OGL, PI has no single legal definition. PI is actually the combination of several different types of IP all lumped together for the use of convienence. > My question now goes beyond that, and asks are there third party > rights of law suit for people who aren't even signed on to any version > of the OGL? If so, in what circumstances? > It is possible that somebody who is not using the OGL may be able to sue somebody who is, however, I do not think that they can sue them over contract/liscense violations, only those involved in the license can do that. > The PI definitions section specifically says what constitutes PI, but > doesn't say that you have to be a party to the licensing contract to > declare PI. It says you just have to be the owner. > Which brings us back to the fact that PI has no legal definition outside of the OGL. As such, I do not think you can declare "PI" if you are not using the OGL. Always remember that contracts and licenses will often mention things, both implicitly and explicitly, but in almost all cases, those things mentioned will point back to the contract or license itself. (note: I did say almost!!). Also, a contract or license cannot over-ride general intellectual property laws. They may do so on an individual basis for one or more of those who are a part of that license or contract, but they cannot change the actual laws themselves. > Now, the simplest scenario is a licensed product. I go to Warner > Bros. and ask for permission to make a licensed Teen Titans OGL > covered product. I'm the one using the OGL, not them. Can they make > me, as their agent in all this, declare all their stuff except the > gaming bits, as PI -- they are declaring it through me, and I'm the Yes, they can. Most likely it will be a clause or such in YOUR license with THEM that allows for you to do so on their behalf. However, chances are that is the only rights you have concerning those things to be declared. (other than your own uses). > one in the Section 15? Can I sue for breach against you if you use > their PI? Can Warner Bros. sue for BREACH (not for copyright > infringement, but for BREACH)? > Hmm... I would say yes. Due to your agreements with WB, you are most likely engaged to protect their interests while you are licensing them, and that includes policing anything that might be using their material. > Now, assume Warner Bros. has no intention of using the OGL ever. Can > they declare all their stuff as "Product Identity" and say, "Warning: > We don't use the OGL, but if you do, all our intellectual property is IMO, No, they cannot. Unless they are using the license themselves, then they cannot try to define something for those who are using the license, however see below.... > always Product Identity"? If they do, will they have any standing to > sue for breach of contract if I do what would otherwise be deemed > making fair use of their products (like quoting a sentence from > Nightwing and attributing it appropriately)? No, but chances are they would not actually sue for that, but for copyright breach and/or trademark infringement. >If that quote were PI in > an OGL'd source in my section 15 they could claim breach. But here > they are a 3rd party, out in the ocean, and trying to claim breach? > Do they have any express or implied third party beneficiary rights > under the OGL to sue for breach? > No. They are not a party of the license, and would not be considered a beneficiary either, so they would have no standing as such. > Chris raised, to his credit, an interesting point, that the PI > definition doesn't say you have to be the OGL contributor to declare > PI. I was over here trying to see if his point had credence. > The Definition of PI is NOT a fast and hard definition. It is more of a list of acceptable types of intellectual property that CAN be claimed as PI. That is the understanding of those who helped cobble the OGL together and that would stand up in a court of law (intent) with enough witnesses. Note that there are three possible types of content in an OGL book. The first is Open Game Content, which must be declared clearly. Second is PI, which also should (but is not required to be declared). However, note that if something is NOT declared as PI or OGC, then it falls into the third category, Normal Usage. If it is not OGC and not PI, then it is normal copyrighted or trademarked material, as the cast may be. Also, just as a side note. Say smoebody uses Mongooses PI without permission. Green Ronin, nor any other company except one, can enforce the guy using Mongoose's PI to resolve the situation or take it to court. Other companies can tell him he is in breach, but unless he is in breach of their material, they cannot do anything to him. The one exception mentioned above is WotC, who owns the license and can therefore yank it from anybody for any valid reason. TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] _______________________________________________ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
