On Mon, 4 Jun 2001, Martin L. Shoemaker wrote:
> [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.
Yes, the reasonable person standard does assume that people actually read
what they are suppose to read. It's just one example of how the
reasonable person standard is certainly different from the real average
person.
> 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."
This again misses what is required to be clearly identified. The
requirement is not simply that anything that can be re-used by identified
somewhere, it is that OGC must be clearly identified where-ever it
appears. (Once again, I'm not saying every time OGC appears there needs
to be a statement saying it is OGC. But somewhere there must be a
statement making clear that what the person looking at is OGC. For
example a statement at the beginning of a book saying all of chapters 3, 5
& 6 are OGC but no statement about OGC in any of those chapters is
perfectly acceptable.) Your two sentences only vaguely identify any of
the OGC in the main text. And I'm not certain how reasonable it is to ask
a person to memorize the entire appendix so that when they are reading the
main text they know what is OGC.
SNIPPED discussion of average person
> 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.
That's why the standard is reasonable not average. Because as you point
out the average person doesn't read such things. On the other hand, the
reasonable standard implies that anyone wanting to use OGC has some
obligation to figure out what is OGC and can be used. But the question
here is whether the person who distributed the product with OGC did a good
enough job identifying all the OGC. The appendix of OGC clearly provides
a complete set of OGC material, but that isn't the requirement of the
license. Is an appendix with OGC and a statement that everywhere this
same text appears in the main text it also OGC clearly identifying all the
OGC in the main text? I don't know and certainly don't want to make a
blanket statement either way. I think it would be much easier to defend
with a small appendix than with a large one. For example, I'd be leery of
such an approach in a product like either of S&S's books (CC or RR) simply
because there is so much OGC and it's not unreasonable that a person might
mistakenly assume something in the main text is or isn't OGC with this
approach. The approach they took is extremely clear on where OGC begins
and ends, even though there is nothing on any of the pages containing OGC
to indicate what is and is not OGC. Of course there is no requirement
that anyone use the approach the most clearly indicates OGC; just that
whatever approach is used does clearly indicate OGC.
alec
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