On Mon, 4 Jun 2001, Doug Meerschaert wrote:
> Don't forget (as I had, and many do) that the whole point of the OGL is
> to stay out of court to begin with. Ideally, we'll be just like the
> GPL, and *never* go into court.
>
> (And all that means is that we conintually come to common agreements
> about what the license means... which, I would wager my $.37 on, would
> weigh heavily if and when it finally gets into court.)
Of course the objective is to stay out of court. That doesn't change the
fact that the only way to get a legal determination of what is sufficient
under the reasonable person standard is to actually go to court. As to
whether it would be weighed in the courts determination is a very open
question and would depend mostly on the arguments made by the opposing
counsels. In other words how reasonable does the court believe the
understanding of those deeply involved in the subject is -- often the
views of those most closely involved are not the best to judge a
reasonable standard by. And given the preponderance of fans taking RPG
material and using it, I think the reasonable person standard for the OGL
is going to have to include more than just people actively engaged in
developing OGL products.
> > It's all good in terms of people being able to use the OGC, but that isn't
> > the requirement in the license. The license requires that if you use OGC
> > you must clearly indicate which portions of your work are OGC. So any time
> > you use OGC and don't clearly indicate that that portion of the work is
> > OGC you are violating the license.
>
> The word "each part" doesn't show up at all. To quote:
nor do those words show up in anything I've said. I said you are required
to clearly indicate all portions of a work containing OGC; I didn't say
you had to do this each and everytime OGC appears.
> "8. Identification: If you distribute Open Game Content You must clearly
> indicate which portions of the work that you are distributing are Open
> Game Content."
>
> IANAL (are you?), but it seems like "everything that appears in appendix
> A is OGC, both in the appendix and in the rest of the work" is a "clear
> indication" to me.
Almost every week (and in fact either yesterday or earlier today) I make
clear that I have a law degree but am not a practice attorney. For some
people that makes me a lawyer; for me it does not. And what is the
first quoted statement a clear indication of? Clear indication means that
a person has to be able to identify the OGC wherever it appears. Is
telling a person to compare everything in the main text with what's in the
appendix a reasonable way of identifying the OGC in the main text?
Perhaps.
> > 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.
>
> Not to be rude, but that seems like legal nitpicking. Any competent
> lawyer can pick that up, or a simple edit can change that on a second
> printing.
Sure, but since most people on this list seem deathly adverse to
consulting competent lawyers and none of them caught this until I (someone
with a law degree) pointed it out to them it's a good thing I did isn't
it.
> > 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.
>
> Exactly. But, in the odd instance that this ever gets to court, each
> side will argue what they think a "reasonable person" would conclude if
> presented with the work.
>
> If someone was presented with a work that used the "Appendix strategy",
> would a reasonable person conclude that the exact same text in the rest
> of the work is OGC? I think that he would; if we add on a qualfing
> statement somewhere in the legal text, I think that likihood rises to
> "clear identification."
And as someone with legal training, I've stated that I wouldn't want to be
the one having to make your argument for you in a court of law. The
requirement isn't whether a reasonable person would conclude that the same
text appearing elsewhere is OGC, it's whether such a designation clearly
identifies the OGC. In a work contain very little OGC I think this would
be easier to accept than a work with a lot of OGC. In a large work, I
think a strong argument could be made that such an appendix does not
clearly identify the OGC because of the difficulty in keep track of
everything in the appendix when examining the main text.
> From where I sit, the barrier to the appendix strategy isn't the OGL;
> it's cost. In an instance where it's the most economical way to
> identify OGC, the OGL should allow it to be used.
The OGL doesn't give a damn about the most economical way to present OGC,
it simply requires that all OGC must be clearly identified. So claiming a
method is economical is irrelevant.
alec
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