On Mon, 4 Jun 2001, Brad Thompson wrote:
> > Alec A. Burkhardt
> >
> > 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.
>
> ROTFLMAO
>
> Sorry for the waste of bandwidth, but I think this should be nominated for
> 'quote of the week' on the OGF site or *something*. I think I'll use it the
> next time I negotiate a contract...after we sign!
Go right ahead. I consider the reasonable person standard to be right up
there with the rational individual concept used in the social sciences.
Both are very nice theoretical concepts of how human beings should behave,
but try and find a real person who actually follows either completely.
People have a strong tendency to be both irrational and unreasonable.
> -Brad
>
> PS- what an amazing amount of patience you have to restate your argument in
> so many different ways. In case nobody else says it: thanks.
Actually my patience is starting to wear out (just fatigue, I'm not upset
at anyone or anything that's been said). I think I've probably made my
argument in every way I possibly can. Of course every time I think that
someone posts a new message with a slight twist and I think I can make it
a little clearer.
Basically I think it comes down to this. There is absolutely nothing
special about Open Game Content. OGC is simply material that a person can
hold a copyright interest in that the person with the copyright interest
has stated is OGC (a term defined by the OGL for this discussion). In
order to do this the person must find some way to identify which content
is OGC. But since there is nothing distinguishable about OGC, from
ordinary copyrighted material that is, the person has to find some way of
making the OGC distinguishable. Essentially that means they have to point
to the specific content and say it is OGC. In person this would be
simple, but that's not practical. So people have to find some means of
pointing without actually being there.
The question a court will look at is how good a job did you do when you
pointed. Or, was your method of pointing sufficient so that a reasonable
person would clearly understand what was OGC. To me the appendix idea
does a very good job at pointing to the appendix as OGC. Then again, any
thing that claims "everything here is OGC" is about the best pointing job
you can do. That's why people who release their entire content as OGC are
probably chuckling away at this whole conversation. Where I'm less
certain about the appendix approach is how good a job it does at pointing
to the OGC in the rest of the material. And since I read the Open Gaming
License to require that Open material remain Open, I think this is could
be a problem. But I'm not telling people they can't use this method; I'm
just advising against it since there are probably better ways to point.
The one thing I do find rather funny is the fact that almost daily people
post to this list asking for clarification on legal issues. There are a
few of us this list who actually have law degrees, but when I try and help
explain legal issues (I do regularly point out that I have a law degree,
altho not every time I post) immediately there are people telling me
that I don't know the law or that they know the law better than me. I
don't really have a problem with that, but if you are so darn confident of
your understanding of the law why are you asking for clarification? And
if you don't like the legal reasoning I provide do what any person should
do, contact another person with a law degree. They'll probably want you
to pay them, but that's life in a capitalist system. But certainly don't
expect me to just accept some lay persons understanding of the law.
If you are going to disagree with me (again, doesn't bother me at all) at
least try and explain your reasoning. Just saying "that's not how I read
the OGL" isn't very helpful. And since I do have a law degree, no one's
going to convince me they are right about the law simply by making such a
declaration. I've always tried to explain why and how I'm making my
interpretation, just so that people can both follow the logic and perhaps
point out possible different interpretation. However there seem to be a
number of responses which simply state that I'm wrong and nothing else.
Don't know what that does for others thinking, but for me it does
absolutely nothing to change my opinion.
Most people holding law degrees are lawyers and therefore unlikely to give
a lot of legal advice freely. And I'm not talking about getting paid
here, I'm talking about making statements about what the law says in a
discussion where the concepts being discussed are kept at a very abstract
level. There's good reason for this -- they don't want to get themselves
or anyone else into legal trouble by giving poor advice based upon such
slipshod information. I hold a law degree but am not a lawyer nor a
member of any Bar, therefore I'm probably a little more willing to
discussing legal concepts. The fact that I'm a PhD candidate who's focus
is on Law & Society probably also figures into it. Both because it is an
academic interest of mine and because I have way too much debt to every
worry about any type of law suit that could result from anything I say on
this list.
Unfortunately (or furtunately for those who don't want to see any more
posts by me on this) I'm not at a computer today. Have to go mess up some
incoming freshmen lives by making them take classes they don't want to
take.
alec
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