> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED]]On Behalf Of Alec A.
> Burkhardt
> Sent: Monday, June 04, 2001 5:42 PM
> To: [EMAIL PROTECTED]
> Subject: Re: [Ogf-l] Attempting to fully understand the software issue.
>
>
> And remember that I originally was objecting to the idea of a simple
> appendix as the whole of OGC identification. After I pointed out that
> wasn't complying with the license people added the line about claiming
> that anywhere the material from the appendix appears in the main book it
> is OGC. The raw concept of just collecting the material in an appendix is
> not in compliance with the license. The addition of that single sentence
> means that it might be in compliance with the license. I just don't think
> it obviously passes the reasonable person test as to what clear
> identification means. That's one problem with the reasonable person test,
> no such person actually exists but courts have to try and figure out what
> such a person would think.
[I am not a lawyer, etc., etc.]
It depends to some extent on: does "a reasonable person" imply someone who
reads instructions? I'm not being facetious here: I would hazard a guess
that almost no one reads the software licenses when they install code on
their machines, even though the license presumes they will and they often
have to click a button that indicates they have.
So if a reasonable person is presumed to have read the instructions, then if
that sentence "All OGC is in the appendix" appears prominently at the front,
it seems TO ME like a clear identification: "If you see something you would
like to reuse, you must consult the appendix to determine whether you are
allowed to."
On the other hand, if a reasonable person may potentially read the material
in any order and may thus see the mix of open and closed material before
seeing the instructions (come on: before OGC became an issue, how many of
you read the copyright notice of the average book in depth?), then it seems
TO ME that the OGC is not identified clearly enough.
I believe that the AVERAGE person -- never mind reasonable, since I'm in no
position to judge that -- skips the copyright page, and a large number skip
intro pages. Now if the notice were, say, prominently on the back cover
("Over 15 pages of new Open Game Content (collected in Appendix A)!"), then
I would say most purchasers could be presumed to have seen it.
But this same line of thinking raises a problem, regardless. Suppose I say,
"Text in black borders is OGC." Again, if I say that on the copyright page
or in intro pages, there's a good chunk of people who will miss the notice.
But since most of them will not be game designers and will not be reusing
the material (in ways relevant to the OGL, that is), they don't matter.
I'm inclined to believe that the game designer who is planning to reuse
material is under the obligation to search for the author's statement of how
the OGC is clearly defined, since there is NO identification means which
might not be missed (other than stating "This is OGC" in every instance,
which is impractical). If I am correct in that belief, then an appendix WITH
the statement is "clearly identifying", but an appendix WITHOUT the
statement seems unclear to me.
Martin L. Shoemaker
Martin L. Shoemaker Consulting, Software Design and UML Training
[EMAIL PROTECTED]
http://www.MartinLShoemaker.com
http://www.UMLBootCamp.com
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