date:20050905


woodelf wrote:

Now, personally, i don't *like* the interpretation that there is no 
non-OGC non-PI content in a covered work--it wasn't until i had the 
"third type" of content explained to me that i was willing to even 
accept the license as viable--but i'm not yet convinced that, should 
it ever come down to a court to decide, that that third type is 
actually in the license.


And later Tim Dugger wrote:

You mentioned how courts tend to rule against the drafter in regards 
to contracts of adhesion, yet you are not realizing that your 
interpretation is acutally not of benefit to the draftee (and only 
potentially slightly more beneficial to the drafter). If anything, your 
interpretation is more restrictive to a person using the license.
 



Woodelf, Tim said pretty much what I would say.

The existince of a "third type of content" is an ambiguity in the 
license -- specifically, "what is the status of part of a work that is 
neither identified as Open Gaming Content nor Product Idenity?"  But 
since it's in WotC's benefit for licensed work to have more OGC and not 
less whenever anyone but WotC uses it, a court should rule ambiguities 
in the favor of closing the content--that is, that where it isn't clear 
that work is OGC, it isn't.



DM
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Re: [Ogf-l] Any work covered by the license

2005-09-05 Thread Tim Dugger

On 5 Sep 2005 at 21:44, [EMAIL PROTECTED] wrote:

> 
> Except that to come to that conclusion you have to utterly ignore the
> part of the license that says:
> 
> "OGC means any work covered by the license excluding Product Identity"

Sorry, but that is NOT what it says. There is a whole lot more to that 
definition that that one single phrase. You want to concentrate on 
that phrase, and only that phrase and ignore the rest of the 
definition.

Is the entire definition poorly worded and unclear? Yes, it is. But 
after reading through the entire license it is apparent that you have 
to declare what is OGC, you have to declare what is PI. Since the 
OGC definition lists what must be OGC, and also states that you 
can claim additional OGC before it states the part that you keep 
quoting, it can quite easily be said that the part you keep quoting is 
in error due to poor wording. The rest of the license would appear to 
support this.

You mentioned how courts tend to rule against the drafter in regards 
to contracts of adhesion, yet you are not realizing that your 
interpretation is acutally not of benefit to the draftee (and only 
potentially slightly more beneficial to the drafter). If anything, your 
interpretation is more restrictive to a person using the license.

The way I see it, the interpretation that I have would be much more 
beneficial to the licensee, and would be the one that a court would 
rule for.

 TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
 Iron Crown Enterprises - http://www.ironcrown.com
 E-Mail: [EMAIL PROTECTED]

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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 10:53:50 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
then it becomes much trickier to sensibly chop a work up into lots of 
little pieces. Let's say you have a chapter of feats, and all the feat 
names are PI, and all the feat mechanics are OGC, and nothing has been 
said about the flavor text describing the feats. Is it sensible to refer 
to what is essentially every other paragraph of a chapter as "a work", 
in the vein of copyright definitions? If not, then maybe you really 
can't chop things up that way.
>>


What is an isn't a work is a matter of fact-based inquiry, so I might come up with a fact pattern where every other paragraph is a work.  However, for every instance I come up with that, 99 others won't be situations where every other paragraph constitutes a work.

That's why I tend to refer to examples of magazines and articles, where a magazine is a collected work (per Title 17) that contains other independently copyrightable sub works (per Title 17).  There, it is clear to me, that you can apply the OGL to a work, and that an article is a work, and that there is no requirement in the OGL that the OGL must apply to a collected work just because a sub-work is covered.

<>

And when I read, "OGC means any work covered by the license excluding Product Identity", then it seems very much like it doesn't exist IN the covered work, even if it can exist in an encompassing work which is not a "covered work" in terms of the license.

Lee
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Re: [Ogf-l] Any work covered by the license


Doug Meerschaert wrote:


woodelf wrote:

Neither of those clauses in any way necessitates, or even implies, 
non-OGC, non-PI content. Why refer to a "work containing OGC"? 
Because it also has PI, and both "parts" are covered by that clause. 
Likewise for the necessity to indicate OGC--just because, if a work 
only contains OGC and PI, it would be slightly redundant to identify 
both of those, doesn't mean that there is some 3rd bit. And, again, 
if the work that the license refers to is allowed to be a subset of 
the physical work, that, too, would explain the necessity of 
identifying both OGC and PI, without necessarily allowing the license 
to *cover* non-OGC non-PI content.



But, again-- what would the difference be?

If "Big Book of Stuff" has Chapters 2, 3, and 4 delcared to be Open 
Gaming Content, and ten names Product Identity, does it matter if 
Chapters 1 and 5 are "non-OGC non-PI covered by the OGL" or "seperate 
works in conjunction with a work covered by the OGL."


I'd have to go do a very careful re-reading of both the WotC OGL and, 
more importantly, the D20STL. It might not make a difference. It 
certainly wouldn't make a difference most of time. But, while most of 
the prohibitions in both licenses includ "in conjunction with" or 
similar terms, i seem to recall that some of them only appear to apply 
to the covered work. So, if there is material that is outside the 
covered work, but part of the physical object, it might not be subject 
to those prohibitions.


Furthermore, if there is no 3rd type of content within a covered work, 
then it becomes much trickier to sensibly chop a work up into lots of 
little pieces. Let's say you have a chapter of feats, and all the feat 
names are PI, and all the feat mechanics are OGC, and nothing has been 
said about the flavor text describing the feats. Is it sensible to refer 
to what is essentially every other paragraph of a chapter as "a work", 
in the vein of copyright definitions? If not, then maybe you really 
can't chop things up that way.


Now, personally, i don't *like* the interpretation that there is no 
non-OGC non-PI content in a covered work--it wasn't until i had the 
"third type" of content explained to me that i was willing to even 
accept the license as viable--but i'm not yet convinced that, should it 
ever come down to a court to decide, that that third type is actually in 
the license.



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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 10:16:58 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
OGC and PI, it would be slightly redundant to identify both of those, 
doesn't mean that there is some 3rd bit.>>

I absolutely concur 100%.  And in the example of a single covered work in a collected work (e.g., an article in a magazine), the OGC + PI tell you which work is covered.

So, in a magazine the OGC + PI definition is instructive to the end user.  And where the "covered work" is the entire commercial unit, it is somewhat redundant.

Neither of those implies a third type of content WITHIN the covered work.  And I am baffled utterly at anyone who reads the license and comes to the conclusion that the license implies any third type of content.

The license has other redundancies: "OGC means any work covered by the license including translations and derivative works".  Well, there's a redundancy right there.  Any work means any work.  Giving me two examples does little more than redundantly reinforce that this applies to "any" covered work.

The same OGC definition says that one of several meanings for 'OGC' is "anything clearly identified as OGC by the contributor" and then Section #8 says you must clearly identify OGC.

Redundancies exist in the license.  They just do.  And there's no super secret hidden meaning behind them.  They are just redundancies.  One cannot reasonably infer some super secret master plan to have non-OGC, non-PI content inside the "covered work" just because the license has redundancies in it.

Particularly you cannot infer that, in my opinion, because the definition of OGC is "any work covered by the License excluding Product Identity", which seems to hedge out any third type of non-OGC, non-PI content inside the covered work.  At that point, you have to ignore the most obvious interpretation of a definition and infer something that is not even mentioned in the license to come up with a third type of content within a covered work.

Lee
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Re: [Ogf-l] Any work covered by the license


woodelf wrote:

Neither of those clauses in any way necessitates, or even implies, 
non-OGC, non-PI content. Why refer to a "work containing OGC"? Because 
it also has PI, and both "parts" are covered by that clause. Likewise 
for the necessity to indicate OGC--just because, if a work only 
contains OGC and PI, it would be slightly redundant to identify both 
of those, doesn't mean that there is some 3rd bit. And, again, if the 
work that the license refers to is allowed to be a subset of the 
physical work, that, too, would explain the necessity of identifying 
both OGC and PI, without necessarily allowing the license to *cover* 
non-OGC non-PI content.


But, again-- what would the difference be?

If "Big Book of Stuff" has Chapters 2, 3, and 4 delcared to be Open 
Gaming Content, and ten names Product Identity, does it matter if 
Chapters 1 and 5 are "non-OGC non-PI covered by the OGL" or "seperate 
works in conjunction with a work covered by the OGL."



DM
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Re: [Ogf-l] Any work covered by the license


[EMAIL PROTECTED] wrote:

In a message dated 9/5/2005 5:21:30 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:



<>




I'm not sure where your trademarks are, and whether they are part of 
the text of the work.  So I have no idea how to answer this.


My opinion about this section of the license, as far as this thread is 
concerned, is limited to what is required of declarations for 
licensing compliance.  At least in this thread I'm not willing to 
venture a strong opinion about what happens to your IP if you fail to 
exercise appropriate cautions over your declaration.  I could 
speculate, but I don't think that's a useful contribution in the 
context of this particular thread which is already complicated enough.


Should've been clearer: any trademarks only appear in the credits of 
this hypothetical work. [I forget that some people trademark all sorts 
of stuff that i (1) would never dream of trademarking and (2) question 
the validity of trademarking. Some of it for good reason mind you--it's 
just not the way i want the world to work.]



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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 10:01:56 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
you prefer one that has almost exactly the same effect?
>>

I'm not certain I'd agree that almost complying with a license is the same as complying with a license.  And, depending on how a judge rules, if he agrees that everything in a covered work is OGC except the parts that are PI, I'd hate to be the one who failed to declare some giant chunk of the covered work as either one and have him decide for me what it is.  I'm not certain this would happen, as the judge could just as readily say read that the entire covered work must be OGC + PI and assume that my failure to designate the remaining portion might mean that I intended not to license it and he might then just treat it as a trivial violation of the license.

Which a judge will decide?  I'm not going to find out.  So, I don't consider that the difference is trivial.

I think when it comes to declarations, you need to darn well identify everything the license mandates that you declare and declare it as PI or OGC.  Leave nothing undeclared or misdeclared that you have to clearly declare as an OGL requirement.  Doing otherwise leaves you open to licensing violations or worse if your products ever get into a court.

Lee
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Re: [Ogf-l] Any work covered by the license


Doug Meerschaert wrote:


woodelf wrote:

Find me anything in the license itself that supports this [the third 
type of content]. 



Section #7. "... in a work containting Open Gaming Content..."

Section #8: "If you distribute Open Game Content You must clearly 
indicate which portions of the work that you are distributing are Open 
Game Content."


Now, there are certain things that have to be OGC, possibly including 
all game rules in your product.  But the license makes a lot more 
sense when you realize that non-game rule content doesn't have to be 
PI or OGC.


Neither of those clauses in any way necessitates, or even implies, 
non-OGC, non-PI content. Why refer to a "work containing OGC"? Because 
it also has PI, and both "parts" are covered by that clause. Likewise 
for the necessity to indicate OGC--just because, if a work only contains 
OGC and PI, it would be slightly redundant to identify both of those, 
doesn't mean that there is some 3rd bit. And, again, if the work that 
the license refers to is allowed to be a subset of the physical work, 
that, too, would explain the necessity of identifying both OGC and PI, 
without necessarily allowing the license to *cover* non-OGC non-PI content.



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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 5:32:24 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
trademarks anywhere in the magazine to indicate compatibility or 
co-adaptability.>>

I think that's true, via the "in conjunction with" clause.

 <
Races for ShadowRun(tm)"?
>>

Interesting question.  I'm not even certain it's safe to hazard a guess on this, because all interpretations seem crappy.  Since I'm always willing to put my foot in it to learn something, I'll hazard a guess.

The relevant sentence is:

"You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark."

OK, so there's two different readings here:

a) even if a trademark has NOTHING to do with the OGC in question you can't refer to compatibility with that trademark if the mention is distributed in the same commercial unit as the OGC

b) "in conjunction with" assumes that the trademarks to which you are claiming compatiblity to have something to do with the systems the OGC is intended to interface with, and that any compatibility declaration that has nothing to do with the OGC, its use, or its distribution, can be safely made.

"b" allows you to have another article about races for Shadowrun if your OGC has nothing to do with that subject.

<<
Which points to some other problems with the WotC FAQs, and reasons why 
i'm disinclined to accept any of their answers as being trustable. >>

I think WotC's FAQ is of dubious value for a couple of reasons.

Except where it's clearly interpreting unambiguous sections of the license per their plain English meaning, their opinions aren't of great value in a court because, in a contract of adhesion courts construe the contract against the drafter.

Second, this is the same company that tried to convince the world that they owned a patent that stops everyone in the world from producing any kind of CCG.  Decipher and their CCG patent is probably sneering at WotC for that.  WotC's proclamations in their FAQ are probably approved by their legal team to say things that are consistent with people doing what WotC wants.

Their FAQ is useful for one big thing in my opinion -- telling you what they might be willing to sue you for (even if they'd lose some of those suits).


<
breaking the content into two separate physical books which are sold 
together as one economic unit.>>

I'm not certain that this would let you elude the "in conjunction" clause.  That's not defined, and it's just the kind of thing that a judge will happily stick you on if you try to be a smart alec with some scheme to circumvent the clear intent of the license.

"in conjunction with" could be really broad if a judge wanted it to be.  Is an ad for a product that declares compatibility with a trademark an ad made "in conjunction with" the distributed OGC?  Hmmm.  Who knows.  I don't want to find out personally.

I think people focus too much on what a work is for compatibility declarations.  I think "in conjunction with" can reach beyond the "covered work"

Lee
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Re: [Ogf-l] Any work covered by the license


[EMAIL PROTECTED] wrote:

And I'm not willing to come to that conclusion simply so that I can 
say, "see there is a third type of content inside a covered work".


So, rather than take the interpretation that the industry has adopted, 
you prefer one that has almost exactly the same effect?


Talk about arguing a moot point.  Or is there some deep significance you 
prefer to attach to the distinction between "text that is neither PI nor 
OGC inside an OGL-covered work" and "text is only in conjunction with 
the OGL-covered work."  If there's something that you think you (and I) 
should be able to do, or that the other guy should be compelled to do, 
could you kindly spell it out for me?



DM
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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 7:34:34 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
when you realize that non-game rule content doesn't have to be PI or OGC.
>>

Except that to come to that conclusion you have to utterly ignore the part of the license that says:

"OGC means any work covered by the license excluding Product Identity"

And I'm not willing to come to that conclusion simply so that I can say, "see there is a third type of content inside a covered work".

I can instead read that part of the license as it seems to beg me to read it on my face and say instead:

"In any collected work, you can apply the license to a sub-work without applying it to the whole collection, allowing a subwork to be OGC + PI and creating a space outside the covered work but inside the commercial unit which is not material directly covered by the OGL, but to which only the 'in conjunction with' prohibition probably directly applies"

Lee
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Re: [Ogf-l] Ryan, reply-to problem

In a message dated 9/5/2005 8:30:17 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
myself and for those people you mentioned (and a few others I've 
noticed), it sends a copy both to the reply-to entry 
(ogf-l@mail.opengamingfoundation.org) and the original sender.

I've not seen any situation though where it does not send to the list 
itself, unless it was a list wide setting.
>>

I've noticed this intermittently happen to specific people's emails, where I end up emailing them instead of the list.

I'm on AOL.

Lee
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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 5:40:53 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<<>And they've made it quite clear that they don't want to prohibit a 
>magazine having some WotC OGL-using articles, and some "regular" articles.

While they might like to enable that potential, the license does not permit 
it.

Ryan 
>>

Why not?  I've recently posted Title 17's definition of collected works (like magazines) and it notes that while the collected works are works, they sub-works they contain are also works unto themselves.

There is NOTHING in the license that says that you must apply the OGL to an entire collected work to cover a sub-work.  It says only that it covers "a" (singular) "work".

I respectfully disagree with your construction of the license on this subject.

That said, I think the "in conjunction with" clause would apply to the rest of the magazine even if it wasn't per se a "covered work" as a whole..

Lee
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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 5:21:30 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
text of this work, save the index , table of contents, and credits, is 
Open Game Content." In your opinion, are you saying that my company 
trademark has just been declared OGC, because it wasn't declared PI? Or 
that it is automatically PI, because it wasn't declared OGC?>>

I'm not sure where your trademarks are, and whether they are part of the text of the work.  So I have no idea how to answer this.

My opinion about this section of the license, as far as this thread is concerned, is limited to what is required of declarations for licensing compliance.  At least in this thread I'm not willing to venture a strong opinion about what happens to your IP if you fail to exercise appropriate cautions over your declaration.  I could speculate, but I don't think that's a useful contribution in the context of this particular thread which is already complicated enough.

Lee 




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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 5:21:04 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<< Tim's Question: "Why do you have to clearly 
>indicate which portions of the work are OGC if the whole work is 
>considered to be OGC just by putting it with the license?"
> 
>
Because the work, as far as the license is concerned, and the work, as 
far as the consumer/reuser is concerned, might not be the same unit.
>>

Woodelf, I concur.  A poem is a work.  A picture can be a work.  A short story can be a work.  If I have a book that contains a short story, a poem, and a picture, I have a singe encompassing work, and three contained works.  If I intend that the OGL apply only to the short story (by my election), and my OGC and PI declarations apply only to that short story, then it signals to users of the OGL that the "work covered by the license" is the short story, and not the poem or the picture or the encompassing volume.

Lee

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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 5:20:21 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
perfectly reasonable to me that you could declare a PD element as either 
OGC or PI>>

While the definition of PI is poorly punctuated, it seems to read that PI must be declared as such by it's "owner".  Since the license goes on to, several more times, to refer to a bit of PI's "owner", I feel that it is safe to assume that PI must be "owned" (in the IP sense) to be declared as PI.  So that you couldn't PI a public domain item -- you can't own it.

In general, this means that a lot of the things on the PI list probably have protections (against reuse) only to the degree that you own it.  This is less clear, but is one internally consistent reading of the license.  If I'm correct, then you couldn't protect single spell names that are not trademarked, but you could protect collections of spell names (much in the way that you could claim copyright over a collection of items in a recipe book, but not over any one or few of them used in isolation).

Again, this latter point is more subject to interpretation, since the license does go beyond normal copyright law in some protections (no compatibility declarations), but it seems consistent that since PI must be owned, that you are extended protection to individual elements only insofar as you own them.  If it's not a trademark you cannot "own" a spell name.  You can "own" a collection of spell names, so therefore when you PI a collection of spell names, the PI extends to the collection, but not its individual member elements if they are used in isolation or as a small sampling of the whole collection.

Hope that helps.

Lee
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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 5:20:20 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
dispute and the author says "i intended the license to mean X" and a 
witness says "i knew the license was supposed to mean X, so used it that 
way" and the defendant says "i don't know what he intended, the license 
clearly means Y, and that's what i did".
>>

Supreme Court precedent on the matter says that for contracts, and particularly for contracts of adhesion (contracts which are drafted by one party and presented on a "take it or leave it" basis without negotation), which this is, any vague area of the contract should be construed against the drafter if there is a disagreement between the drafter and another party.

Where there is no vague area, I doubt that many courts are going to listen to the drafter's claims of intent if another party to a contract of adhesion is adhering to the contract per the plain English meaning of the contract.

Lee
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Re: [Ogf-l] Ryan, reply-to problem

2005-09-05 Thread Scott Broadbent

This could just be a problem with your mail client.  I use Firefox 
myself and for those people you mentioned (and a few others I've 
noticed), it sends a copy both to the reply-to entry 
(ogf-l@mail.opengamingfoundation.org) and the original sender.


I've not seen any situation though where it does not send to the list 
itself, unless it was a list wide setting.


[EMAIL PROTECTED] wrote:

Ryan, can you check the list's settings.  I am accidentally sending 
out posts to Tim and Clark directly instead of to the list.  This 
happens not infrequently with various people.  It's a result of the 
"reply-to" headers being setup incorrectly somehow, since I'm just 
hitting "Reply"


Lee




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Re: [Ogf-l] Any work covered by the license


woodelf wrote:

Find me anything in the license itself that supports this. 


Section #7. "... in a work containting Open Gaming Content..."

Section #8: "If you distribute Open Game Content You must clearly 
indicate which portions of the work that you are distributing are Open 
Game Content."


Now, there are certain things that have to be OGC, possibly including 
all game rules in your product.  But the license makes a lot more sense 
when you realize that non-game rule content doesn't have to be PI or OGC.



DM


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Re: [Ogf-l] Any work covered by the license


David Bolack wrote:


He has also, in the past, asserted that a website is similarly hosed.
If you have a single OGL document, the entire site is contaminated.
 

That sounds about right, actually. 

If your website has OGC on it, then you need to treat it all as a "work" 
under the OGL.  That is, you can't use someone else's trademarks et al.



DM


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Re: [Ogf-l] Any work covered by the license

2005-09-05 Thread Ryan S. Dancey


From: "Paul W. King" <[EMAIL PROTECTED]>


The entire site, or just that sub-directory?


In my opinion, the court will look at the way the information is presented.

If you have a directory with files in it that contain OGL material, the 
files themselves are OGL, but the directory is not.  This is similar to the 
situation of a retailer with a shelf full of products - the "unit" is the 
file, not the shelf (so long as it's self-contained).


On the other hand, if you have a website that attempts to present OGC as a 
site-related effort, I think there's a good chance that the site itself 
could be declared "a work" under the terms of the OGL, in which case the 
whole site would have to become OGL compliant.


There are not, obviously, good caselaw precdents for how copyrights will be 
applied to web sites.  Thus it is a grey area, and the philosphy of the OGL 
is to avoid or minimize grey areas wherever possible.


My advice is that if you want to host a significant amount of OGL content on 
a web site, split it into a speperate site with a distinct URL and don't 
co-mingle it's contents with your primary site.


Ryan


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Re: [Ogf-l] Any work covered by the license

2005-09-05 Thread Ryan S. Dancey


From: "woodelf" <[EMAIL PROTECTED]>

So, a magazine that has a single OGC-containing article coudn't use 
trademarks anywhere in the magazine to indicate compatibility or 
co-adaptability. It couldn't have an article in that issue about "New 
Races for ShadowRun(tm)"?


That's a correct interpretation.  Otherwise, people who wanted to circumvent 
the license limitations would be able to call their products "magazines".


Which makes sense. But they've since claimed that a "web enhancement" is 
just as much a part of the original work as something that is physically 
bundled with it.


In my opinion, that's an incorrect and unenforceable interpretation of the 
license.


And they've made it quite clear that they don't want to prohibit a 
magazine having some WotC OGL-using articles, and some "regular" articles.


While they might like to enable that potential, the license does not permit 
it.


Ryan 



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Re: [Ogf-l] Any work covered by the license


Tim Dugger wrote:


Let's take a magazine as an example of my interpretation.

Using my interpretation, the whole magazine is covered by the 
license. The magazine declares three articles as OGC. It then 
declares the names of characters and place names used within the 
articles as PI.


So what is the rest of the magazine? Under my interpretation, it is 
non-open (closed) content (meaning that it cannot be re-used - even 
through the fair use clauses available in copyright law if you are 
using the OGL). It doesn't have to be declared because it is not 
OGC, nor is it PI. It is the default state of content (caveat - content 
based upon the SRD or other OGC works is automatically open, and 
is required to be declared as such) within the covered work.


 

So, a magazine that has a single OGC-containing article coudn't use 
trademarks anywhere in the magazine to indicate compatibility or 
co-adaptability. It couldn't have an article in that issue about "New 
Races for ShadowRun(tm)"?


Which points to some other problems with the WotC FAQs, and reasons why 
i'm disinclined to accept any of their answers as being trustable. 
Namely, they don't want you to be able to get around the restrictions by 
breaking the content into two separate physical books which are sold 
together as one economic unit. Which makes sense. But they've since 
claimed that a "web enhancement" is just as much a part of the original 
work as something that is physically bundled with it. Despite the fact 
that it is freely available to people who don't have the physical work, 
is perfectly useable without the physical work, and might enjoy a 
separate copyright. Because, again, they don't want people to make an 
end-run around the restrictions. Of course, if you have two 
clearly-separate physical works, one of them could use the WotC OGL 
and/or D20STL, and the other could not, and thereby 
perfectly-legally--if somewhat awkwardly--perform that end-run they 
don't want. And they've made it quite clear that they don't want to 
prohibit a magazine having some WotC OGL-using articles, and some 
"regular" articles. So, how do you set up a *consistent* set of rules 
for defining "a work" that includes a boxed set or bundled books, 
excludes books bundled together, includes a physical product and a 
digital product that are explicitly designed to work together, excludes 
two products that are designed to work together, includes a single 
physical work made up of multiple logical works internally which may or 
may not have separate copyrights, excludes a single physical work 
comprised of multiple logical works internally which may or may not have 
separate copyrights, and handles other format variations that haven't 
actually been witnessed yet?


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Re: [Ogf-l] Any work covered by the license


[EMAIL PROTECTED] wrote:

For now, let's assume that we have one work, a book.  Let's assume 
that it is wholly non-derivative.  Let's assume that the person who 
wrote the book applies the OGL to it, and says, "This book, in its 
entirety, is a single work covered by the Open Gaming License".  Let's 
assume that the guy has no Product Identity.  How much of the book 
must be OGC?  In my opinion, 100%.  As soon as you pick a "work 
covered by the license", that "work covers by the license contains 
only OGC and PI, or, if there's no PI, then it contains only OGC".


Then a declaration that just says "the text is 100% OGC", and doesn't 
say anything about the art, layout, trade dress, etc., is invalid?


I write an RPG. I use the WotC OGL, and declare "The entirety of the 
text of this work, save the index , table of contents, and credits, is 
Open Game Content." In your opinion, are you saying that my company 
trademark has just been declared OGC, because it wasn't declared PI? Or 
that it is automatically PI, because it wasn't declared OGC? That if i 
merely want others to be able to continue to use my trademark as they 
could under conventional IP laws, rather than be extra-restricted as 
they would be if it were PI, i have to explicitly include some sort of 
mini-license or permission?

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Re: [Ogf-l] Any work covered by the license


Tim Dugger wrote:

By my reasoning, the license would not include the following clause 
--
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.

--
if the whole work were considered OGL just by applying the license 
to the work. To put it another way, "Why do you have to clearly 
indicate which portions of the work are OGC if the whole work is 
considered to be OGC just by putting it with the license?"
 

Because the work, as far as the license is concerned, and the work, as 
far as the consumer/reuser is concerned, might not be the same unit.


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Re: [Ogf-l] Any work covered by the license


Tim Dugger wrote:


On 4 Sep 2005 at 16:05, [EMAIL PROTECTED] wrote:

 


If this is the case, then there's no such thing as the "third type of
content" and a whole bunch of stuff has been published under the OGL
using an incorrect interpretation of the license. I wonder if the fact
that WotC hasn't taken any steps in the past five years to correct
this misinterpretation would work against the company if it tried to
start enforcing this interpretation now.
   



I view it as squares and rectangles. All squares are rectangles, but 
not all rectangles are square.


You have a "work", as defined by Ryan to be an entire product from 
cover to cover. In this "work" you are required to declare what is 
OGC, and to declare what is PI. However, there is nothing in the 
license that says "the entire work IS OGC unless it is declared PI".


My interpretation is that the work contains OGC, PI, and anything 
else not declared by the first two. That "anything else" is still bound 
by the OGL, especially where the OGL superceeds copyright law. 
That "anything else" can include such things as public domain 
material (such as the names of the Norse Gods).


If the entire work were considered to be OGC, except for what was 
declared PI, then there would be absolutely no reason to declare 
what is OGC, as it would be implicit that if it is not declared as PI it 
would be OGC. However, this interpretation fails because it is 
possible to incude public domain material (such as the names of 
Norse gods) in a work. Since the names are public domain, they 
cannot be declared OGC nor PI because the contributor does not 
own the rights to declare it as one or the other, and if a work 
contains only 2 types of content (OGC & PI), then it would be 
impossible to use any public domain material within a covered work.


Thus, any work which included such would be in violation of the 
OGL
 

Alternately, you can declare "Thor" as PI or OGC. And someone would 
therefore be required to not use, or make OGC, respectively,"your" 
version of the word "Thor". They could, alternately, choose a different 
source if one were available--like, oh, say, PD. Since "authority to 
contribute" is not explicitly defined, and exactly what you are 
prohibited from WRT PI is not explicitly defined, and what authority, if 
any, you need to declare PI is not explicitly defined, it seems 
perfectly reasonable to me that you could declare a PD element as either 
OGC or PI, and thus force those who derive from it to treat it as such. 
And equally reasonable, and in no way a contradiction, to say that those 
very same people could instead cite the PD--rather than your work-- as 
their source for those specific elements.


Let me use an alternate, and hopefully less-muddled, example. Let us 
suppose for a moment that the vitality/wounds system in Spycraft is 
closed content, that the same system in Uneathed Arcana is OGC, and that 
the Star Wars D20 game had been released under the WotC OGL and the 
vitality/wounds system there had been declared PI. Further, assume that 
the systems are identical (rather than nearly-identical). I believe that 
you could cite Spycraft and UA in your Sec.15, and use the 
vitality/wounds system. The fact that it is not available to you via 
Spycraft doesn't prevent you using the identical content via UA. 
Moreover, IMHO, you could cite UA and Star Wars D20 in your Sec.15, and 
still use the vitality/wounds system, verbatim from UA, even though that 
would be identical in content to using it verbatim from Star Wars D20.  
That is, the power of the prohibitions of PI is only as great as the PI 
is unique. Likewise, the requirements of OGC are only as powerful as the 
OGC is unique--if you can reasonably invent the content in a way that 
makes you legitimate creator/owner, the fact that it *could have been* 
copied from or derived from someone else's OGC doesn't make it necessary 
to designate it OGC itself. As a concrete example of this, the starship 
construction system in T20: it could have been derived from the existing 
D20 System OGC. However, it actually was derived from the existing 
MegaTraveller/Traveller: tNE rules. Therefore, they were not required to 
make it OGC, and chose not to. Perfectly legitimately and legally, IMHO.



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Re: [Ogf-l] Any work covered by the license


Doug Meerschaert wrote:

Nope.  Anything not identified as required in Section #8 and also not 
noted as Product Identity is "third type of content."


Find me anything in the license itself that supports this. Sure, 
there're discussions on this list--mostly attempts to make sense of 
seeming contradictions; there are Ryan's [the author or at least 
impetus] postings; there's the WotC FAQ. But is there anything in the 
license itself that actually says that? I've long suspected that that 
was the intended meaning of the license, but that a mistake was made 
along the way, and it doesn't actually say that. I'd be genuinely 
surprised if an IP attorney, with zero previous contact with the 
license, and without prompting or leading questions, would conclude on 
reading it that it both applied to the work as a whole (as opposed to 
some subset work) and allowed non-OGC non-PI content.


And, yes, that might undermine the various prohibitions of the WotC OGL 
and the D20STL. OTOH, most of those prohibitions are phrased to include 
"in conjunction with" type prohibitions. Even if only half the chapters 
of a book are covered by the license, i'd say it's a pretty safe bet 
that breaking the license's rules in another of the chapters would be 
construed as doing so "in conjunction with" the covered work.


And i have no idea what happens in a court of law if there's a contract 
dispute and the author says "i intended the license to mean X" and a 
witness says "i knew the license was supposed to mean X, so used it that 
way" and the defendant says "i don't know what he intended, the license 
clearly means Y, and that's what i did".



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Re: [Ogf-l] Any work covered by the license


Tim Dugger wrote:


On 4 Sep 2005 at 17:27, [EMAIL PROTECTED] wrote:

 


So you're saying that Ryan's interpretation is correct and that Lee's
interpretation is wrong.
   



hehe... You know, I am not sure anymore

Seriously, I do think that the entire product is a "covered work", so I 
guess that yes, I am agreeing with Ryan in this instance (will 
wonders never cease...).


However, I don't seem to recall Ryan stating whether there are only 
2 types of content in a covered work or three (maybe I missed that 
part).
 

Does it matter? Doesn't the license have to stand on its own as a legal 
document? If we have to bring in the author (well, impetus for 
authorship--i believe Ryan's said that lawyers drafted the final 
license, based on his impetus and various internal discussions at WotC) 
to figure out what the license means, is that really valid?


In hindsight, I am thinking that perhaps the license is missing a 
definition for something that should perhaps be called "Proprietory 
Content" (PC) that cannot be used by others and falls under normal 
copyright except as prohibited by other portions of the license (such 
as declaring compatibility), and define it as all content not declared 
as OGC or PI. If it had such a definition, then this discussion would 
not be taking place.
 

Yep. And the fact that it doesn't is part of what makes me think that 
one of 4 things is true:
--There is no third type of content *as far as the license is 
concerned*--but the license need not be applied to the entirety of the 
work as generally considered. [Ignoring all discussions about the 
license, and pronouncements by Ryan and WotC, this seems to me to be the 
most internally-consistent reading. It only requires that some of the 
clauses be redundant--perhaps there for emphasis--rather than that any 
portions be ignored or glossed over.]
--The license does apply to the whole work and there is no third sort of 
content. [Perhaps because the actual drafters (the lawyers) willfully or 
unintentionally misunderstood Ryan's intentions.]
--The license authors were incompetent, or at least lazy/sloppy. [This 
interpretation is supported by the numerous simple grammar/punctuation 
errors that muddle up what could otherwise be perfectly-sensible clauses.]
--It is simply too hard to mix virally-open content and conventional 
copyright law and powerful trademark-like protections, and account for 
the vagaries of current publication and various media. [Open-content 
license? Easy. Trademark licensing? Easy. Content licensing? Easy. 
Dealing with books and magazines? Easy. All of the above, at once, plus 
handling "web enhancements" and boxed sets and multiple books in a 
line--all while dealing with a content that has an ambiguous status WRT 
conventional IP laws? Not so easy. I mean, we don't even know for 
certain how much ownership/protection RPGs enjoy before you introduce 
the WotC OGL. And i'm fairly certain that, while virally-open licenses 
have been tested in court at least a bit, the concept of other 
restrictions "tagging along with" the open content--restrictions that 
are actually tighter than conventional IP law--hasn't. Not to mention 
the fact that the smaller the bit of text, the less applicable copyright 
is, yet the WotC OGL, like all "copyleft" licenses, rests on 
copyright--so how much power does it have when it starts to talk about 
small chunks of text that, were they not embodied in a larger work, 
wouldn't enjoy copyright protection? Copyrights isn't about ownership of 
ideas, it's about reproduction of presentations of those ideas. But the 
WotC OGL wants to talk about ideas, it seems.]



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RE: [Ogf-l] Any work covered by the license

2005-09-05 Thread Paul W. King

The entire site, or just that sub-directory? It was my understanding that, if 
you had a site, and a folder called
"/gaming_stuff/", and that folder contained OGC material and but one instance 
of the OGL (as opposed to the OGL on every page
where OGC occurred), then everything within that sub-directory was covered.

Paul W. King

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of David
Bolack
Sent: Monday, September 05, 2005 2:57 PM
To: ogf-l@mail.opengamingfoundation.org
Subject: Re: [Ogf-l] Any work covered by the license

He has also, in the past, asserted that a website is similarly hosed. If you 
have a single OGL document, the entire site is
contaminated.
--
No virus found in this outgoing message.
Checked by AVG Anti-Virus.
Version: 7.0.344 / Virus Database: 267.10.18/89 - Release Date: 9/2/2005

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Re: [Ogf-l] Any work covered by the license

2005-09-05 Thread David Bolack

On Sun, 2005-09-04 at 17:20 -0400, [EMAIL PROTECTED] wrote:
> On Sun, 4 Sep 2005, Doug Meerschaert wrote:
> But Ryan just said that the intent of the OGL is that everything from
> cover to cover (including the covers) is "the covered work," and we

He has also, in the past, asserted that a website is similarly hosed.
If you have a single OGL document, the entire site is contaminated.

If he's recanted this particular absurdity, I do not know.

-- 
David Bolack <[EMAIL PROTECTED]>

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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 11:31:46 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
automatically (which pretty much equals the term "by default") OGC,
except for what is PI. At least that is what you said on the rpg.net
thread.
>>

It's sort of question whether "automatically" is an appropriate choice of words. Even if I used it before it's sort of misleading, since you have a choice of what you PI, then nominally you have a choice of what is OGC in some cases. Where you make no choices about PI, however, then yes, it's pretty much automatically OGC.

<
the definition given and attempting to make it the only definition,
ignoring the rest of the definition, and pretty much ignoring the rest
of the license where the phrasing tends to counter any possible
interpretation other than the one you are attempting to apply. You
cannot ignore the rest of the definition, which actually comes before
that small part you continually quote.
>>

No, I'm not ignoring the rest of the definition, Tim.

Every time the word "means" is used, as in the form, "OGC means X, and OGC means Y, and OGC means Z" then "means" can be interpreted as "includes".

"OGC includes X, and OGC includes Y, and OGC includes Z, but OGC excludes Product Identity".

Using the basic logic of set theory, you build a merged union of each include and subtract out the exclude. In doing so, you'll see that the part that say "OGC means any work covered by the license" is a superset of all the other things on the list that OGC includes and therefore, by definition, reference to the superset automatically includes all subsets of the supersets by set theory.

So, I'm not ignoring other parts of the definition at all. I'm just appying basic set theory and determining that one of the phrases creates a superset which all the other parts are subsets of. Therefore there's no particular reason to refer to the subsets.

Correct.

<
license. The magazine declares three articles as OGC. It then
declares the names of characters and place names used within the
articles as PI.
>>

You've used the license incorrectly. You should apply the license so that it covers each of the three articles and has OGC + PI declarations for the articles. Each article is a work, and the magazine is an encompassing work. So you can apply the license to each sub-work individually without applying the license to the magazine.

<
require a separate copy of the OGL for each of the articles.
>>

Not necessarily. I could apply the OGL to the whole magazine if I wanted, and then apply a PI definition that covers all but three articles. And then create OGC and PI definitions for the three articles. That would render 100% of the covered work OGC + PI.

Again, you keep debating my interpretation, Tim, but one of the individual meanings for OGC is:

"OGC means any work covered by the License, excluding Product Identity". You have yet, after umpteen debating posts, unless I've missed something, you've completely ignored this line and have anted up no alternate interpretation of this line. You are busy pretending like it doesn't exist.

Lee
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Re: [Ogf-l] Any work covered by the license

2005-09-05 Thread Tim Dugger

On 5 Sep 2005 at 9:50, [EMAIL PROTECTED] wrote:

> In a message dated 9/5/2005 1:28:21 AM Eastern Daylight Time, 
> [EMAIL PROTECTED] writes:
> > <>
> 
> I don't know if "by default" is the appropriate word.  I've only
> claimed that you must declare as OGC everything that you don't declare
> as PI.

No, you actually have claimed that anything under the license is 
automatically (which pretty much equals the term "by default") OGC, 
except for what is PI. At least that is what you said on the rpg.net 
thread.

> 
> What is your interpretation of:
> 
> "OGC... means any work covered by the License... excluding product
> identity."
> 

This is where I am having problems. You are taking only a portion of 
the definition given and attempting to make it the only definition, 
ignoring the rest of the definition, and pretty much ignoring the rest 
of the license where the phrasing tends to counter any possible 
interpretation other than the one you are attempting to apply. You 
cannot ignore the rest of the definition, which actually comes before 
that small part you continually quote.

> This implies to me, that if there is no Product Identity that the work
> covered by the license is 100% OGC.  I don't see any other reasonable
> construction of this definition.  Do you?  What is it?

This apparently implies to you that if there is not a PI declaration, 
that no matter what the OGC declaration, that OGC declaration is 
wrong unless it is for 100% OGC.

Let's take a magazine as an example of my interpretation.

Using my interpretation, the whole magazine is covered by the 
license. The magazine declares three articles as OGC. It then 
declares the names of characters and place names used within the 
articles as PI.

So what is the rest of the magazine? Under my interpretation, it is 
non-open (closed) content (meaning that it cannot be re-used - even 
through the fair use clauses available in copyright law if you are 
using the OGL). It doesn't have to be declared because it is not 
OGC, nor is it PI. It is the default state of content (caveat - content 
based upon the SRD or other OGC works is automatically open, and 
is required to be declared as such) within the covered work.

Under your interpretation, it would seem that the magazine would 
require a separate copy of the OGL for each of the articles.

TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
 Iron Crown Enterprises - http://www.ironcrown.com
 E-Mail: [EMAIL PROTECTED]

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Re: [Ogf-l] Any work covered by the license

I'm going to dissect the definition below and show it applied to a sample work of fiction.  Here's the whole definition.

"'Open Game Content' means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity."


OK, so let's dissect this with an example.  I have a work of fiction that I'm going to apply to the OGL.  It contains no game mechanics.  This shortens the effective definition to:

"'Open Game Content' means any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity."

Next, its not a derivative work or a translation.  This shortens the definition to:

"'Open Game Content' means any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, but specifically excludes Product Identity."

Let's say there's no Product Identity.  Well the definition shortens to:

"'Open Game Content' means any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License."

At this point OGC means two things:

1) anything I mark as OGC, AND
2) the work covered by the license

Since Section #8 requires me to mark all my OGC, I have to mark it so that both of the above are true, in order to fulfill the definition.

part 1 of the remainder of the OGC definition is automatically fulfilled by Section #8.

So now I have to make Section #8 work with part 2 of the remaining OGC definition:

I have to mark "the work covered by the License" as OGC.

If you want to give effect to the phrase that "OGC means the work covered by the License" there is only one obvious reading.  You can't just nay-say this out of existence.

If you are looking for a counter-argument you'd have to argue about the definition of the word "covered".  I think it's self-explanatory, but since it ain't defined, if there's any wiggle room for a conclusion opposite to my own, it would have to leverage the phrase "covered" somehow to be construed as an alternate possibly valid alternative.

Currently Tim and Clark keep saying that they don't agree, but they haven't posted any interpretation which gives effect to "OGC means any work covered by the License".  I don't think any nay-saying is a valid critique until it presents a reasonable interpretation of this part of the License.

Lee


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[Ogf-l] Ryan, reply-to problem

Ryan, can you check the list's settings.  I am accidentally sending out posts to Tim and Clark directly instead of to the list.  This happens not infrequently with various people.  It's a result of the "reply-to" headers being setup incorrectly somehow, since I'm just hitting "Reply"

Lee
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Re: [Ogf-l] Any work covered by the license

In a message dated 9/5/2005 1:28:21 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:


<>


I don't know if "by default" is the appropriate word.  I've only claimed that you must declare as OGC everything that you don't declare as PI.

What is your interpretation of:

"OGC... means any work covered by the License... excluding product identity."

This implies to me, that if there is no Product Identity that the work covered by the license is 100% OGC.  I don't see any other reasonable construction of this definition.  Do you?  What is it?

Lee
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Re: [Ogf-l] Any work covered by the license

Subj:   Re: [Ogf-l] Any work covered by the license 
Date:   9/5/2005 9:08:10 AM Eastern Daylight Time   
From:   HUDarklord  
To: [EMAIL PROTECTED]   

In a message dated 9/4/2005 5:19:14 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<
license that says "the entire work IS OGC unless it is declared PI".
>>

Dude, the definition of OGC says it.  It says "OGC  means any work covered by the license... excluding the parts that are PI."

You are trying to give no meaning to part of the definition.

<
possible to incude public domain material (such as the names of 
Norse gods) in a work.>>

Irrelevant.  ANY copyrighted work, when atomized, is composed of public domain words, etc.  Treating "Thor" as special is a misunderstanding of the fact that words like "the", "a", and "game" are also public domain.

<< Since the names are public domain, they 

cannot be declared OGC nor PI because the contributor does not 
own the rights to declare it as one or the other>>

Again, copyright, for example, applies to the work, but it does not reach individual words, phrases, or public domain concepts.  That doesn't mean you can't copyright a work.

<>

No.  This would mean that the definition of OGC does not reach uncopyrightable materials, just as your copyright, that you apply to an entire work, may not reach some uncopyrightable materials.

Lee
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Re: [Ogf-l] Any work covered by the license

2005-09-05 Thread Tim Dugger

On 5 Sep 2005 at 4:24, Thomas Kyle wrote:

> Well, the general consensus (at least of those closest to the OGL, and
> several others in this discussion) is that anything in the "third
> category" of non-OGC non-PI still _isn't_ usable under the OGL, which
> seems to be very similar to the concept of PI (in that it can't be
> reused/redistributed).

Correct, OGC is the only bits that are allowed to be re-used. The 
definition of PI was created so that there was a method of having 
material that was not OGC mixed in with the OGC (i.e. such as the 
name of an iconic character - the character's stats are OGC, but his 
name is PI).

TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
 Iron Crown Enterprises - http://www.ironcrown.com
 E-Mail: [EMAIL PROTECTED]

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Re: [Ogf-l] Any work covered by the license

In a message dated 9/4/2005 3:51:11 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

<< A magazine featuring many 
articles is a "work".
>>


Just to prove my point further, Ryan -- here's a definition from Title 17:

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. 


See.  In a collective work, there is an encompassing work (which gains copyrightability extending only to its section, presentation, and organization of its internal contents, along with any new content it adds).

There are also individual works within it.

There is NOTHING, and I mean NOTHING in the OGL that says for a collective work you can't apply the license to an individual sub-work.

All that's required by implication from the license, is that you apply the license to a work, and that can be an article in a magazine, without applying the license to the encompassing collective work.

Lee

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Re: [Ogf-l] Any work covered by the license