On Mon, 4 Jun 2001, Martin L. Shoemaker wrote:
> Again, just my lay opinion: this seems like a clear identification. "If you
> question whether a portion is OGC, look for it in the appendix. If it is in
> there, it is OGC. If it is not in there, it's not." Yes, this puts more
> burden on the reasonable person; but I cannot see how it is less clear than
> "chapters 3, 5, and 6" at the beginning but not in the chapters themselves.
> In the latter case, the reasonable person just has to do less work (checking
> which chapter is involved against a statement at the front) than in the
> latter case (reading material at the end to classify the material). Both
> require referencing another portion of the work to determine what is OGC;
> it's just that one has a bulk reference, and one has a detail reference.
I'd say it's less clear than saying specific chapters because the
requirement is that you clearly identify location (portion) of OGC rather
than text of OGC. The appendix idea is simply a double blind -- you first
identify the physical location of pure OGC (the appendix) and then state
that if you see the exact same text elsewhere it is also OGC. I'm just
not comfortable that a court would find this clear identification of the
portion (which essentially means the locations) of the main text that
contains OGC. It also requires some serious (and I mean much more
strenuous than I've seen in any RPG product) proof-reading because there
can be no errors in the identicalness of the text in the appendix and in
the main text.
> If I'm missing something here, please help me out. I appreciate it. And as
> you do, please explore the following: "In chapter 3, the following
> paragraphs are OGC: 1, 3, 5, 10, 12, 14-17, 23, 29, 31, 37, 45-55, 60, and
> 70. In chapter 5: paragraphs 4-10, 14, 17-19, 23, 28, 32-37, 40, 47, and
> 69-80. In chapter 6: paragraphs 10-23, 28, 35-49, 56, 59, 60-71." This is
> essentially a finer-grained version of your example (especially if they
> follow the rather odd convention of numbering the paragraphs in the text
> itself); but even though it is mechanically the same, it may not be the same
> in spirit, because it imposes more work on the reasonable person. If it IS
> in essence the same, then THIS unreasonable person would find it less clear
> than simply retyping the OGC itself as a reference, with the rule: "If you
> don't find it here, it's not OGC; but if you find it here, it's OGC wherever
> it appears."
Once again, I go back to the idea that what is required is identifying a
location of OGC. Personally I wouldn't like to defend this style of
minutely identifying individual paragraphs of OGC either (especially if
the paragraphs WEREN'T individually numbered) -- I'd advise the person to
do someting like make the background a different color behind the
paragraphs that are OGC. I also wouldn't recommend saying chapters or
pages if no chapter or page numbers are used. The OGL may not require the
clearest identification possible but the clearer the identification the
easier to prove that a reasonable person would consider it clearly
identified.
I think this all turns on people thinking there is some way to inherently
identify OGC. OGC is no different than any other thing that can be
copyrighted except that someone has said it is OGC under the OGL. So
there is no real way to identify OGC other than by telling people where it
is located. For example I can make all or parts of this e-mail OGC if I
want to attach the OGL and somehow identify which parts of it are OGC.
(Actually there's a slight problem because some of this is copyrighted by
Martin, but just assume I have the right to use the entire message.) So
without me providing the location of the OGC, can anyone tell me which
parts I'm making OGC? If I cut and paste the two paragraphs I want to
make OGC below, can you then identify the OGC everywhere it appears?
Sure, but only because I first provided you with a location of the OGC and
you then compared that content to the entire message. Easy to do in such
a short work.
What if the product was a 200 page book and the OGC made up an additional
40 page appendix? (rough guess at R&R, probably on the short side for the
appendix) And how do I know where to look in the appendix if I find
something interesting on page 142 and want to see if it is available for
me to use? This is why I have a harder time with an appendix being clear
identification the larger the work becomes. Sure an appendix makes it
easier for OGL developers, it's essentially an included SRD of the
product. But meeting the requirements of the license have nothing to do
with how easy it is for developers to use OGC from the product. The
requirement is that the portion(s) of the work that contain OGC are
clearly identified.
alec
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