date:20050301

On 28 Feb 2005 at 19:38, Chris Helton wrote:

  The owner of any
 Product Identity used in Open Game Content shall
 retain all rights, title and interest in and to that
 Product Identity. 

This is the key phrase here - The owner of any Product Identity used 
in Open Game Content.

As Spikey points out, outside of the OGL, Product Identity does not 
have a true legal context. 

The emphasis should be put on You
 agree not to use any product Identity as all of the
 rest is just icing.

Okay, sure. In that case, I'll just claim that all fonts are my Product 
Identity, and thus nobody could ever print anything ever again. heheh

Seriously though, the license, in context to itself, describes what IT 
(the OGL) considers to be Product Identity. And please note that it 
describes PI as being part of or included in Open Game Content.

It lumps together many things normally under very different laws 
(trademarks and copyrights) as a single item for the express purpose 
of taking and marking certain items within a product of Open Game 
Content as off-limits.

If a person is not using the OGL, then they cannot claim Product 
Identity because they have no Open Game Content in which to mark 
things off-limits.


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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 12:28:05 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

First of all, section 2 says "No terms may be added to or subtracted from 
this License except as described by the License itself.

Actually, the alternate reading which CJH seems to have doesn't seem to even involve people who have signed onto a particular version of the OGL. That's why I raised the subject of third party beneficiaries to see if you think they are implied. I don't think that they are.

Most times, third parties to contracts are explicitly named in the contract 

Right, which is the reason why I am not reading the contract the way CJH is. I tend to think you have to be a party to a SPECIFIC INSTANCE of the OGL in order to declare viable PI.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 5:56:56 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Unlike copyrights, trademarks, and patents, Product Identity of the
sort described in the OGL has no legal existence outside of the
OGL.

Nobody said it did. I'm trying to see if CJH has any supportable argument.

The ONLY way I can see that a person who is not a party to a specific instance of the OGL declaring anything is if that person is not a party but IS a third party beneficiary. It's not a question of whether the OGL is granting the right. The question is whether that right (to declare PI) is given ONLY to parties (which I instinctively feel it was intended to do) or whether a third party to the contract can declare PI.

I'd say
no, since neither product is publisher under the only license in which
the concept of Product Identity exists.

A third party beneficiary isn't a party to a contract. He's a beneficiary of the contract. I'm trying hard to see CJH's point, to see if there's a loophole in the contract. He's right, in part that the PI section doesn't say explicitly who declares PI. However, the law would (to the best of my understanding) allow only two types of people to have standing to interact with a contract typically:

a) a party to the contract; or
b) a third party beneficiary of the contract

Now how is that different from the situation where one publisher is
party to the license but the other one isn't?

Because in my question, I'm addressing third party beneficiaries and you are assuming them away, treating people as parties or non-parties.

I don't think the license allows for third party beneficiaries in the OGL, and I'm getting the sinking feeling either nobody else does.

I was trying honestly to see CJH's point.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 2/28/2005 10:39:55 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

if you read the
definition of what constitutes product identity in the
OGL it goes beyond just a declaration of your
individual PI in a product.

No, it really doesn't address the scope at all. It just says that PI declared as PI is PI. That doesn't answer the key question:

Can a non-party to the contract declare something as PI? Under U.S. contract law, you aren't typically obligated to non-parties to a contract unless they are third party beneficiaries of the contract, and those tend to be explicitly named.

Since this section doesn't explicitly suggest that there are third party beneficiaries, I'm assuming that one has to be a party to a given instance of a contract as a Contributor to declare enforceable PI.

CJH -- you are missing a key point. If some third party can declare PI, they are the only ones that can enforce my violation of their PI. They can do that in one of two ways:

a) they are a party to the contract; or
b) they are a third party beneficiary.

End of story. If they aren't a state actor, then this is the only way a private citizen has a right of action in a breach of contract suit generally. If the person isn't listed as a contributor, they aren't part of the grant/consideration process and aren't a party. If they aren't a party, they are, at best, a third party beneficiary.

Does the license support the notion of third party beneficiaries? I don't think so. I _do_ think it's vague in the area and should be redrafted for this and umpteen other reasons.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

--- [EMAIL PROTECTED] wrote:
 No, it really doesn't address the scope at all.  It
 just says that PI declared as PI is PI.  That
doesn't 
 answer the key question:

Can you please quote the section of the OGL where it
says what you are trying to say it says? You can
believe my reading or not, however the OGL supports
what I am saying about Product Identity. Issues of
back cover blurb fonts and the such are nothing but
nigglings to try to prove a point by moving to its
illogical extreme. Definitions of whether or not
Product Identity existing outside of the OGL is
irrelevant, if you are publishing under the OGL that
is the legal definition that you have to use.

There is nothing in the license itself that says
anything about having to declare PI, that is defined
by section 1 of the license. 

Look, dismiss my interpretation all that you want. All
that I am doing is basing this only on my reading of
the document at hand. Frankly, as a publisher, I would
rather have a conseervative interpretation that
doesn't bite me on the ass than something that can
open me to potential liability, with the end result of
having to destroy product or open myself to possible
litigation.

I'm not asking anyone to take my definition of the
OGL, and I don't really care if you don't. However,
you have not created any reasonable doubt to cause me
to have to rethink my interpretations.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 9:32:45 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Can you please quote the section of the OGL where it
says what you are trying to say it says? You can
believe my reading or not, however the OGL supports
what I am saying about Product Identity. Issues of
back cover blurb fonts and the such are nothing but
nigglings to try to prove a point by moving to its
illogical extreme. Definitions of whether or not
Product Identity existing outside of the OGL is
irrelevant, if you are publishing under the OGL that
is the legal definition that you have to use.

There is nothing in the license itself that says
anything about having to declare PI, that is defined
by section 1 of the license. 

Look, dismiss my interpretation all that you want. All
that I am doing is basing this only on my reading of
the document at hand. Frankly, as a publisher, I would
rather have a conseervative interpretation that
doesn't bite me on the ass than something that can
open me to potential liability, with the end result of
having to destroy product or open myself to possible
litigation.

I'm not asking anyone to take my definition of the
OGL, and I don't really care if you don't. However,
you have not created any reasonable doubt to cause me
to have to rethink my interpretations.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

Some Quotes:
(e) Product Identity means product and product line names, logos and 
identifying marks including trade dress; artifacts; creatures 
characters; stories, storylines, plots, thematic elements, dialogue, 
incidents, language, artwork, symbols, designs, depictions, likenesses, 
formats, poses, concepts, themes and graphic, photographic and other 
visual or audio representations; names and descriptions of characters, 
spells, enchantments, personalities, teams, personas, likenesses and 
special abilities; places, locations, environments, creatures, 
equipment, magical or supernatural abilities or effects, logos, symbols, 
or graphic designs; and any other trademark or registered trademark 
clearly identified as Product identity by the owner of the Product 
Identity, and which specifically excludes the Open Game Content;

7. Use of Product Identity: You agree not to Use any Product Identity, 
including as an indication as to compatibility, except as expressly 
licensed in another, independent Agreement with the owner of each 
element of that Product Identity. 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. The use of any Product 
Identity in Open Game Content does not constitute a challenge to the 
ownership of that Product Identity. The owner of any Product Identity 
used in Open Game Content shall retain all rights, title and interest in 
and to that Product Identity.

--
I think what Chris is saying is a perfectly reasonable interpretation of 
product identity.

Considering a 'White out' interpretation of Product Identity as it 
relates to OGC, you're essentially looking at what makes it possible to 
do licensed products. I take a quote from a couple of pages out of (for 
example's sake) Anne McCaffrey's latest book in my brand new D20 Pern 
title. As the owner of said Product Identity, she would be the one who 
issues the PI declaration for those pages, not me who is working solely 
on the rules section.

On the other hand, you're looking at some 'for the court' ground if 
someone decides to go in 'after the fact' as it were to try and sabotage 
a prior work. For instance, last year I went in and created the Parn D20 
game where in I 'unknowingly' used some characters and thematic elements 
that were revealed after the fact to be quite similar to the Pern stuff. 
I also labeled all that stuff as Open Gaming Content. Would it be 
possible to for Anne McCaffrey to come back and say 'No no, you can't 
use this.. it's my product identity, here's the PI declaration'. To be 
honest, this might be a preferable 'out' for me as otherwise my product 
would be in direct breach of the OGC, where as in this case a new PI 
declaration comes into effect.

Two big snags here though.
1. The onus to clearly identify 'Product Identity' is on the owner of 
the product identity, not on the creator of the OGC.
2. There is the change of 'frivalous' uses of after the fact PI 
declarations.


Chris Helton wrote:
--- [EMAIL PROTECTED] wrote:
 

No, it really doesn't address the scope at all.  It
just says that PI declared as PI is PI.  That
   

doesn't 
 

answer the key question:
   

Can you please quote the section of the OGL where it
says what you are trying to say it says? You can
believe my reading or not, however the OGL supports
what I am saying about Product Identity. Issues of
back cover blurb fonts and the such are nothing but
nigglings to try to prove a point by moving to its
illogical extreme. Definitions of whether or not
Product Identity existing outside of the OGL is
irrelevant, if you are publishing under the OGL that
is the legal definition that you have to use.
There is nothing in the license itself that says
anything about having to declare PI, that is defined
by section 1 of the license. 

Look, dismiss my interpretation all that you want. All
that I am doing is basing this only on my reading of
the document at hand. Frankly, as a publisher, I would
rather have a conseervative interpretation that
doesn't bite me on the ass than something that can
open me to potential liability, with the end result of
having to destroy product or open myself to possible
litigation.
I'm not asking anyone to take my definition of the
OGL, and I don't really care if you don't. However,
you have not created any reasonable doubt to cause me
to have to rethink my interpretations.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

 

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

CJH -- if you think that, even if people don't declare spell names, creatures, etc. as PI for them to be PI then you aren't borrowing much OGC any time soon. Because your default assumption is that those things are ALWAYS PI, whether or not they are declared as PI, and whether or not the person who owns the IP is a user of the OGL.

In short, almost anything you'd want to borrow will be 100% PI all the time even if it is clearly identified as OGC.

Good luck using the license if that's your interpretation. It runs 100% contrary to the entire intent of the license, which is for people to divide covered works, as they see fit (provided that they don't declare as PI something they don't own), into OGC and PI and license you the OGC.

People can declare ANYTHING they own on that PI eligibility list as 100% OGC.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 10:07:29 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Considering a 'White out' interpretation of Product Identity as it 
relates to OGC, you're essentially looking at what makes it possible to 
do licensed products.


That's not what Chris is saying as best I understand him. He is saying that all that stuff on the PI eligibility list is 100% PI, 100% of the time, whether or not it is declared, and whether or not the stuff belongs to a party to specific instance of the license.

If Anne McCaffery isn't a party to the OGL she can't declare anything as PI. She can authorize you (who are a party to the OGL) to declare it on her behalf, but SOMEBODY has to be bound by the OGL to make the declaration. Either Anne is bound by it, or you, as her agent, are bound by it.

She can't, as a third party, without you intervening and publishing under the OGL, say: "I'm not using the OGL, and I'm not authorizing anyone to use my works with the OGL, but all my stuff is Product Identity".

That's what Chris is claiming, because he's claiming that anyone, anywhere, at any time, can declare something as PI and bind you by their declaration even if they are not a party to any version of the OGL anywhere. Chris has gone further and questioned whether they have to actually declare their PI for it to be PI.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

I don't think you really need to be bound to the OGL in order to make a 
declaration of PI. The license seems to only indicate that you have to 
be the owner of the PI in order to make that declaration. On the other 
hand, the license does require a 'clear declaration' of that PI. 
Obviously the clearest declaration is inside the work itself but some 
form of mass publication could be ruled as sufficient.

*grin*
So in conclusion I disagree with both of you.
[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 10:07:29 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

Considering a 'White out' interpretation of Product Identity as it
relates to OGC, you're essentially looking at what makes it possible to
do licensed products.


That's not what Chris is saying as best I understand him.  He is 
saying that all that stuff on the PI eligibility list is 100% PI, 100% 
of the time, whether or not it is declared, and whether or not the 
stuff belongs to a party to specific instance of the license.

If Anne McCaffery isn't a party to the OGL she can't declare anything 
as PI.  She can authorize you (who are a party to the OGL) to declare 
it on her behalf, but SOMEBODY has to be bound by the OGL to make the 
declaration.  Either Anne is bound by it, or you, as her agent, are 
bound by it.

She can't, as a third party, without you intervening and publishing 
under the OGL, say: I'm not using the OGL, and I'm not authorizing 
anyone to use my works with the OGL, but all my stuff is Product 
Identity.

That's what Chris is claiming, because he's claiming that anyone, 
anywhere, at any time, can declare something as PI and bind you by 
their declaration even if they are not a party to any version of the 
OGL anywhere.  Chris has gone further and questioned whether they have 
to actually declare their PI for it to be PI.

Lee

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

--- avatar of Darkness [EMAIL PROTECTED] wrote:
 I don't think you really need to be bound to the OGL
 in order to make a declaration of PI. The license 
 seems to only indicate that you have to 
 be the owner of the PI in order to make that
 declaration. On the other hand, the license does 
 require a 'clear declaration' of that PI. 
 Obviously the clearest declaration is inside the
 work itself but some form of mass publication 
 could be ruled as sufficient.

I'm not really sur what Darklord is claiming, because
the longer he argues the less it seems to me that he
seems to even understand what the OGL is about.

But what you said above is what I am tryign to say.
You don't have to be bound by the OGL to make a
declaration of PI. Basically if something has been
copyrighted or trademarked, that makes it a viable
Product Identity as the OGl defines it. Which means
that it is of limit. As long as something meets the
definition of Product Identity by the OGL it is PI.
One of the things that Darklord seems to be missing
are the uses of the cunjunction and in the license.
These definitions of PI are not either/or, but instead
they are a list of different objects.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

In a message dated 3/1/2005 10:43:02 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

I have never said that my default assumption is
anything of the sort. Where have I said that things
are "always PI"?

You've claimed that people don't have to declare PI for it to be PI. By default then, anything on the PI list is PI whether or not it is declared as PI, making all the things on the PI eligibility list PI all the time even if they aren't declared as PI, since it is, by your claims, the existence of something on the PI eligibility list and not the PI declaration itself something that renders a thing PI. And since a thing which is PI cannot be OGC, then anything on the PI eligibility list, declared or not, must be PI, and (by the license) therefore cannot be OGC.

It's the logical extrapolation from claiming:

a) all the stuff on the eligibility list is PI; and
b) you don't have to declare your PI, PI just is PI

In short, almost anything you'd want to borrow will
be 100% PI all the time even if it is clearly
identified as OGC.

This just goes to show that you don't know what you
are talking about. This is an indefensible stance, so
I am not going to both with addressing it.

I attribute the stance to you, or the logical implications of what you are concluding about not having to:

a) be a party of the license to declare PI; and
b) not even having to declare PI for something to be PI

I don't hold that the license works in either of those ways, so I think that the license, while clunky, serves a purpose.

The "entire intent" of the
OGl has nothing to do with any division of covered
works

It does. It has to do with works covered by the OGL, and it says so in the license.

Yes, and that would be a stupid thing to do because it
goes contrary to the protections that you would seek
under copyright and/or trademark law.

Um. People do this DAILY on RPGNOW. Declaring 99.9% of the stuff on that PI list other than the title of the product as 100% OGC. They declare characters, spells, creatures, etc. as 100% OGC.

I in fact own many such PDFs. Most of the stuff on that PI list is what people want. If people can't have spell text, creature text, and other copyrighted materials which are eligible for PI declaration instead delivered to them as OGC, then people won't be able to borrow a lot from such products.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 10:48:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

You don't have to be bound by the OGL to make a
declaration of PI.

That's not the question. The question is whether a person making said declaration has any LEGAL STANDING to enforce his declaration under the license.

If he does he is either:

a) a party to the license (in which case he has obligations as well as benefits); or

b) he is a third party beneficiary of the license (which I'm not certain that the license allows).

I didn't even know you were a list member. I don't give a darn about debating with you here. I asked the question here to see what people thought about rights under heading "b" above. Are there rights for third party beneficiaries under the license?

If not, then people can declare PI stuff all day, but unless they are a party to the license they can't sue for breach of contract.

If so, then even if they aren't a party to the license they can sue for breach of contract. Which then breeds the possibility of every PI declaration in every location in the world being binding on everyone everywhere even if you've never seen the declaration.

One of the things that Darklord seems to be missing
are the uses of the cunjunction "and" in the license.
These definitions of PI are not either/or, but instead
they are a list of different objects.

I'm not missing the conjunction "and". But to read it the way you do, it would say that Trademarks are PI only if clearly identified, and that everything else is PI even if not clearly identified. That is such a labored reading of the contract that I can't give it credence. It would effectively place a higher burden on protecting trademarks (which you would have to clearly identify) than it would on a character's pose (which you wouldn't have to clearly identify as PI by your reading). That seems to be a very strained and forced reading of the license.

You are effectively reading it to say:

PI is any clearly identified trademark and any of a number of other things whether or not they are clearly identified.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

--- [EMAIL PROTECTED] wrote:
 If you aren't bound by the OGL and you make a PI
 declaration, you can do it 
 all day long until you are blue in the face.  

Again, you are showing your ignorance of the issues.
Have you ever heard of copyright and/or trademark
infringement? It happens all the time, and all that
the OGL does is hardwire it into the license.

And yes, by registering something as copyright or a
trademark you are creating product identity, whether
you have anything to do with the OGL or not.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)





The thing that I think is throwing him off is your statement that I
bolded below. In addition to the being part of the grand list, I feel
that PI should be declared.

That said, what you're saying actually harkens back to some 'old
school' interpretations from before I started to zone out the
hypothetical yammerings.

Old School Interpretation: There are two forms of item in a OGL
related work. Open Content which is copyrighted to its creator and
shareable and Product Identity which was everything else (Copyrighted
but not sharable). Publishers would make specific declarations of PI in
the fronts of their books as an easy way to break it out from all of
the OGC in addition to things like putting boxes around the OGC.

Somewhere along the way the various discussions brought out the

New School Interpretation: There are in fact three forms of
material in an OGL work. Open content which is copyrighted to the
creator and sharable, Product Identity which serves as a quasi-OGL only
Trademark, and 'Other' which is the stuff that isn't covered by the OGL
and falls under normal copyright laws.

The thing is, Trademark gets its own special handling under the OGL
which in some ways builds PI into its own category despite the fact
that it includes trademarked material. I'm probably not being as clear
as I could be but hopefully this will help you understand where some of
this arguement is coming from.

Chris Helton wrote:

  I'm not really sur what Darklord is claiming, because
the longer he argues the less it seems to me that he
seems to even understand what the OGL is about.

But what you said above is what I am tryign to say.
You don't have to be bound by the OGL to make a
declaration of PI. Basically if something has been
copyrighted or trademarked, that makes it a viable
Product Identity as the OGl defines it. Which means
that it is of limit. As long as something meets the
definition of Product Identity by the OGL it is PI.
One of the things that Darklord seems to be missing
are the uses of the cunjunction "and" in the license.
These definitions of PI are not either/or, but instead
they are a list of different objects.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l



  




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

Aren't you really just talking about plagarism and/or using someone 
else's work without their permission which would be bad even without the 
OGL's influence?

[EMAIL PROTECTED] wrote:
Now, the question becomes, without you intervening (and acting as 
Anne's agent producing an OGL covered work), can Anne, by herself, 
declare something as PI even though she's not a user of the OGL and, 
as a result, have standing in a U.S. court (or foreign court since 
she's overseas) to sue for a breach of her PI.  Consider this -- 
consider that quoting a sentence from on of Anne's books is Fair Use.  
PI trumps fair use contractually and explicitly (in the no 
compatibility declarations section, for instance).  If Anne can, 
without being a party to the OGL, PI all her books, including every 
sentence in them, then if you quote a sentence from her books and 
attribute it to her as flavor text she could sue for damages and 
relief under the license even though she's not a party to it.  That's 
the logical conclusion that must be drawn from your claims here.

That's why I asked if people thought that the PI declaration section 
is so broad that it allows for anyone, anywhere in the world to 
declare PI.  If it does, and if that is binding on ALL parties to the 
OGL, then that means there's a giant growing cesspool of PI to which 
we are all bound, even if we've never read the PI declaration and even 
if we aren't listing the work declared as PI in our section 15.  If 
that's the case, the license may eventually become either unusable or 
practically unenforceable.

Lee

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

 Are there rights for third party beneficiaries under the license?

I would think that a third party could sue a publisher to challenge Section
5, Representation of Authority to Contribute. They could argue that the
publisher did not have authority to contribute because they don't own the
material in question and don't have a license to use it. Really it would
fall under copyright law, but if it were me I would name the infringing
product AND Section 5 as a breach of copyright law. The owner isn't exactly
suing for a breach of the OGL, but the owner is suing because the infringing
publisher's representation that they own the material in the OGL is a second
example of illegal use of the copyrighted material.



___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 11:10:08 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Again, you are showing your ignorance of the issues.

No, you are showing your ignorance of the issues. Breach of contract is a CONTRACTUAL matter. The topic of the thread addressed third party beneficiaries of a contract. Nobody questioned whether people have the rights to sue under trademark or copyright law to protect their properties. The question is do they have rights to sue for breach.

Copyright and trademark suits can have certain administrative hurdles in federal court (such as filing registration papers for certain types of suits) that a breach suit might not have. It might be advantageous to bring a breach action in certain cases either instead of or in addition to traditional copyright and/or trademark claims.

Have you ever heard of copyright and/or trademark
infringement? It happens all the time, and all that
the OGL does is hardwire it into the license.

PI has certain protections under the license that arguably go above and beyond traditional IP protection. PI can prevent fair use which traditional IP laws cannot.

And yes, by registering something as copyright or a
trademark you are creating product identity, whether
you have anything to do with the OGL or not.
__

The license says clearly that something must be identified. Nobody in two different forums has agreed with you that PI doesn't have to be clearly identified.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

--- [EMAIL PROTECTED] wrote:
 You've claimed that people don't have to declare PI
 for it to be PI.  By 
 default then, anything on the PI list is PI whether
 or not it is declared as PI, 

Again, you are putting words into my mouth to attempt
to create a nondefensible stance. You are incorrectly
stating my opinion, and I am starting to think that
you doing it in a willful and purposeful manner.
Please stop.

Yes, actually, by default anything defined as product
identity by section 1 of the OGL is considered to be
product idenity under tha OGL. Thank you for restating
what I have been saying from the begining.

 making all the things on the PI eligibility list PI
 all the time even if they 
 aren't declared as PI, since it is, by your claims,
 the existence of something 
 on the PI eligibility list and not the PI
 declaration itself something that 
 renders a thing PI.  

Actually, no. You are still required to make a PI
declaration. The OGL says that you have to. We have
both pointed this out in our quotes, and I have
mentioned it in this thread as well. I have never said
that there is no need to make a PI declaration. I have
said that, according to the OGL that is not the only
thing which defines PI.

 And since a thing which is PI
 cannot be OGC, then anything 
 on the PI eligibility list, declared or not, must be
 PI, and (by the license) 
 therefore cannot be OGC.
 
 It's the logical extrapolation from claiming:
 
 a) all the stuff on the eligibility list is PI; and
 b) you don't have to declare your PI, PI just is PI

No it isn't a logical extension, and again you are
tyring to put words into my mouth to make your
increasingly asinine assumptions seem more credible.
Again, I have never once said that there is no need to
declare PI. However, you also need to realize that any
declaration of copyright and/or trademark is
considered to be PI as the OGL defines it.
 
 I attribute the stance to you, or the logical
 implications of what you are 
 concluding about not having to:

You can attribute all that you want to me, however
that is not what I ahve been saying and you know that
it isn't. Creating a logical yet extreme example in
an attempt to discredit a person's view point is
nothing but bad rhetorical skill.

 Um.  People do this DAILY on RPGNOW.  Declaring
 99.9% of the stuff on that PI 
 list other than the title of the product as 100%
 OGC.  They declare 
 characters, spells, creatures, etc. as 100% OGC.

Well, that is good for them. Is that a smart business
practice? No. Most of those people are only hobbyists
who are only selling product because the bar has been
so lowered for what it takes to become a publisher.
That does not mean that it is a smart model to follow.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

In a message dated 3/1/2005 11:14:26 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Section 2 - The license only applies to OGC released under the license. How
does a third party designate PI without releasing OGC?


Good eye.

That doesn't quite answer Chris' other implication that once something is PI, it is PI to everyone everywhere, even if they aren't a party to a particular instance of the OGL. I think my most recent posts would apply there. But good eye on the general point.

Copyright is a little vague, but trademarks are clearly eligible to be
Product Identity (or viable as you put it). However, trademarks are not
product identity until the two conditions are met that the PI must be
clearly marked as such and it must be excluded from OGC. Therefore, the OGL
only says it is off limits within the context of the OGL if the material
meets those conditions. It may still be off limits as defined by copyright
and trademark laws, but that is outside the OGL.



Things that are copyrightable seem to be PI eligible (like lists of spell names). I'll buy that it's a little vague, and in need of rewording. The license seems to overtly allow for it, but the fact that the section is called "Product Identity" is what casts doubt over things a very little bit for me.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 11:18:49 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

The thing that I think is throwing him off is your statement that I bolded below.

For the record that was my version of what I thought he was stating. I don't, for one minute, believe that if someone doesn't declare something as PI that it is automatically PI because it is a pose or a spell name.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 11:21:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Aren't you really just talking about plagarism and/or using someone 
else's work without their permission which would be bad even without the 
OGL's influence?


No, I was talking about fair use. Copying a one sentence quote from a book and attributing it properly is not theft. It's fair use.

PI overrides fair use. Also the "no compatibility declarations" clause overrides fair use.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

2005-03-01 Thread Tavis Allison





Green Ronin's _Advanced Bestiary_ (2004) doesn't declare PI at all, as
far as I can see. The title is identified as a trademark. 

Chapters 1 and 2 are declared as Open Game Content; the book consists
entirely of these two chapters, plus a lawyer's page, a table of
contents, an appendix of challenge ratings, an index, the OGL, and an
ad for Hamunaptra (another GR product).

Discussions of business strategy are somewhat off-topic, but this seems
to me a substantial counterargument to the suggestion that declarations
of 100% OGC are only for hobbyists.

- Tavis
www.behemoth3.com 


  
Um.  People do this DAILY on RPGNOW.  Declaring
99.9% of the stuff on that PI 
list other than the title of the product as 100%
OGC.  They declare 
characters, spells, creatures, etc. as 100% OGC.

  
  
Well, that is good for them. Is that a smart business
practice? No. Most of those people are only hobbyists
who are only selling product because the bar has been
so lowered for what it takes to become a "publisher."
That does not mean that it is a smart model to follow.
  





___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

--- [EMAIL PROTECTED] wrote:
 The license says clearly that something must be
 identified.  Nobody in two different forums has 
 agreed with you that PI doesn't have to be clearly 
 identified.

Attribute one more statement to me that I have not
made and you will understand exactly how well I
understand the law.

For the last time, I have never said that PI doesn't
have to be identified. Saying that there is other
forms of PI (as defined be the license) does not mean
that you do not have to declare PI. That is just not
the only type of PI that a publisher has to be
congizent of.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 11:32:04 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

My godyes! If you violate the definitions of
Product Identity under the OGL then you are violating
copyright and trademark lawas too. You can't use the
IP (intellectual property) that doesn't belong to you.

Dude, I'm not trying to be rude. I'm trying to be as polite and serious as I can. Do you understand the difference between standing to sue for breach of contract and standing to sue for copyright/trademark infringement? They are VERY different things.

This thread is about contractual construction and the standing of third party beneficiaries to a contract.

Or at least that's what I started it to discuss.

I thought one of several points you raised was interesting and I came here to see if your idea had any credence. I stated I didn't believe it, but I was looking for counterarguments against my position that might be persuasive.

Instead I found Weldon quoting Section 2 (should have thought of that myself) which pretty much spells out what the license applies to. That plus the post I just made on judicial analysis of third party beneficiary claims pretty much answers my questions to my satisfaction. The license doesn't anticipate third party beneficiaries except, possibly, through their agents (i.e., in a licensed product where the agent declares something as PI on behalf of someone else).

If you aren't a party to the license and if you aren't an eligible third party beneficiary you have no legal standing to sue for breach of contract under the OGL.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)


 From: Chris Helton
 Have you ever heard of copyright and/or trademark 
 infringement? It happens all the time, and all that the OGL 
 does is hardwire it into the license.

The OGL doesn't define copyright and trademark infringement. It only says
that trademarks are also eligible to be PI if marked as such. It then says
what you can and can't do with PI. The license also says that you can't use
trademarks to indicate compatability without express permission to do so. At
no point does the OGL even attempt to identify infringing uses of copyright
or trademarks under US law.

 And yes, by registering something as copyright or a trademark 
 you are creating product identity, whether you have anything 
 to do with the OGL or not.

I disagree. PI only has meaning within the context of licensed works. If I
use copyrighted material or a trademark in my OGL work, you can sue me for
copyright or trademark infringement, not for breach of the OGL.


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

 

 -Original Message-
 From: Chris Helton
 For the last time, I have never said that PI doesn't have to 
 be identified. Saying that there is other forms of PI (as 
 defined be the license) does not mean that you do not have to 
 declare PI. That is just not the only type of PI that a 
 publisher has to be congizent of.

Well, you've lost me too. The license says that any material that is
eligible to be PI must be declared to be PI and must be excluded from OGC to
actually be PI. It must also appear in a work licensed under the OGL to be
covered by the OGL. Under what conditions can something be PI without
meeting these conditions and being covered under the OGL?


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can 
declare Product Identity (Thi:

  Aren't you really just talking about plagarism and/or using
  someone else's work without their permission which would be bad even
  without the OGL's influence?
  
 
 No, I was talking about fair use.  Copying a one sentence quote from a
 book and attributing it properly is not theft.  It's fair use.
 
 PI overrides fair use.  Also the no compatibility declarations
 clause overrides fair use.

Yes, using the OGL removes the Fair Use of copyright law. That is 
part of the exchange.

Now, I could, in a non-OGL book, do small quotes and such from other 
products (whether those products are under the OGL or not), and be 
under the Fair Use clause of copyright law. However, if I were doing 
an OGL book, then by accepting the OGL, I am bound by its strictures, 
which include giving up Fair Use of other products (whether those 
products are OGL or NOT).

It is part of the exchange of rights in the license. the user of the 
licence gives up certain things, in this case certain normal rights 
granted by copyright, in exchange for greater usage of material not 
nomrally allowed to be used under copyright law.

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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 11:47:42 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

For the last time, I have never said that PI doesn't
have to be identified

I just posted 2-3 quotes from RPG.NET saying just the contrary. I'll post the links and the line numbers if you want to see them for yourself.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Do you have 
to declare Product Identi:

 WotC released about 75% of
 their PHB and MM as OGC.

Correction. WotC has not released any of those three products with 
any form of OGC.

What they have done is created a System Reference Document (based on 
those products), and released the SRD as 100% OGC. 

There is a difference.


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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

--- [EMAIL PROTECTED] wrote:
 
 You said, and I quote: These definitions are not
 limited to only game 
 companies, game lines, or any companies that are
 involved with the OGL. Read what it 
 says, and you will see that you are misinterpreting
 this. You will notice 
 that the definition of Product Identity does not
 refer to the OGL, or any process 
 of declaration under it.
 
 You further said: Okif you read the definition
 of Product Identity in 
 section 1 (Definitions) you will see that there is
 no burden of proof or 
 burden of declaration.
 
 
 You'll see that I have actually quoted you quite in
 context.  You have 
 claimed point blank that there is NO REQUIREMENT to
 have something declared as PI 
 for it to be PI.  Period.

Then it would appear that the matter is just that you
either cannot read or are just too dense to be able to
interpret what others are saying. Never once have I
said that there is no requriement, and those quotes
that you are providing don't say that either.

 Thanks for saying so.  As I quoted you twice above,
 on RPG.NET you said 
 otherwise.  Then I tried to ask the membership a
 question about contract law and 
 contractual construction (regarding third party
 beneficiaries) and you have 
 claimed I'm misquoting you and lying about you. 
 Well, I just quoted you twice 
 above, in context, saying that there was no burden
 of declaration, and then 
 quoted you once right after saying that there was a
 burden.

And, no...you did not quote any such thing. My
statements that a definition of Product Identity is in
the OGL had nothing to do with declaration of PI. They
are in conjunction with that. I have never once said
that there is no requirement for a declaration of PI
because (having read the OGL) I know that it says that
one is required. I am saying that the OGL says that
that declaration is not the only requirement for
something to be PI.

It is interesting that you would say that I have
stated this, because all of this seems to stem from my
quoting from WotC's list of PI from the current
version of the OGL. Why exactly would I quote
something like that if I felt there was no need for
one?

But I will again tell you to not put words into my
mouth.

 Tell Monte Cooke, Green Ronin, and Mongoose that
 their sales are suffering because of the OGL.

What does this have to even do with anything at hand?
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

In a message dated 3/1/2005 11:56:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

Um...no. You can't override a law with a contract or a
license. There are legal precedence for this.


That depends on whether the law gives a waivable right. You have a right to walk in front of my house down the sidewalk. I can pay you $10.00 to avoid that stretch of pavement for a week. If you walk buy I can sue for breach. That is a right, but it is a waivable right.

Sometimes in copyright law in particular it is often debated which rights, if any, are waivable.

I would assume that there's no reason I cannot waive a fair use right. In fact, whenever I use the OGL that's exactly what I'm doing when I agree to the "no compatibility declarations" clause. Compatibility declarations, if handled appropriately, are nominally fair use. I waive my right to fair use of the trademark in exchange for something I want.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

WotC released about 75% of
their PHB and MM as OGC.
Correction. WotC has not released any of those three products with 
any form of OGC.
What they have done is created a System Reference Document (based on 
those products), and released the SRD as 100% OGC. 
There is a difference.


I stand corrected sir. I should have said they extracted about 75% of the content and released it as an SRD, not that they released 75% of those books as OGC. Quite correct. My blunder could have confused neophytes. Good call.

Lee


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

On 1 Mar 2005 Chris scribbled a note about Re: [OGF-L] Who can declare Product 
Identity (Thi:

  PI overrides fair use.  Also the no compatibility
  declarations clause overrides fair use.
 
 Um...no. You can't override a law with a contract or a
 license. There are legal precedence for this.

Not quite correct.

You can override Fair Use rights IF you accept a contract or license 
where you give up those rights in exchange for something else.

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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

In a message dated 3/1/2005 12:07:46 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Then it would appear that the matter is just that you
either cannot read or are just too dense to be able to
interpret what others are saying. Never once have I
said that there is no requriement, and those quotes
that you are providing don't say that either.

Thanks for saying so. As I quoted you twice above,
on RPG.NET you said 
otherwise. Then I tried to ask the membership a
question about contract law and 
contractual construction (regarding third party
beneficiaries) and you have 
claimed I'm misquoting you and lying about you. 
Well, I just quoted you twice 
above, in context, saying that there was no burden
of declaration, and then 
quoted you once right after saying that there was a
burden.

And, no...you did not quote any such thing. My
statements that a definition of Product Identity is in
the OGL had nothing to do with declaration of PI. They
are in conjunction with that. I have never once said
that there is no requirement for a declaration of PI
because (having read the OGL) I know that it says that
one is required. I am saying that the OGL says that
that declaration is not the only requirement for
something to be PI.

It is interesting that you would say that I have
stated this, because all of this seems to stem from my
quoting from WotC's list of PI from the current
version of the OGL. Why exactly would I quote
something like that if I felt there was no need for
one?

But I will again tell you to not put words into my
mouth.

Tell Monte Cooke, Green Ronin, and Mongoose that
their sales are suffering because of the OGL.

What does this have to even do with anything at hand?
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

In a message dated 3/1/2005 12:07:46 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Then it would appear that the matter is just that you
either cannot read or are just too dense to be able to
interpret what others are saying.

Between RPG.NET and here about 3-4 of us all think you are claiming that you don't have to declare something as PI for it to be PI.

When you say:

Never once have I

said that there is no requriement, and those quotes
that you are providing don't say that either.

Thanks for saying so. As I quoted you twice above,
on RPG.NET you said
otherwise. Then I tried to ask the membership a
question about contract law and
contractual construction (regarding third party
beneficiaries) and you have
claimed I'm misquoting you and lying about you.
Well, I just quoted you twice
above, in context, saying that there was no burden
of declaration, and then
quoted you once right after saying that there was a
burden.

And, no...you did not quote any such thing. My
statements that a definition of Product Identity is in
the OGL had nothing to do with declaration of PI. They
are in conjunction with that. I have never once said
that there is no requirement for a declaration of PI
because (having read the OGL) I know that it says that
one is required. I am saying that the OGL says that
that declaration is not the only requirement for
something to be PI.

It is interesting that you would say that I have
stated this, because all of this seems to stem from my
quoting from WotC's list of PI from the current
version of the OGL. Why exactly would I quote
something like that if I felt there was no need for
one?

But I will again tell you to not put words into my
mouth.

Tell Monte Cooke, Green Ronin, and Mongoose that
their sales are suffering because of the OGL.

What does this have to even do with anything at hand?
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Do you have to declare Product Identity

Oops, sorry sent a post too fast.

You will notice
that the definition of Product Identity does not
refer to the OGL, or any process
of declaration under it."

"Okif you read the definition
of "Product Identity" in
section 1 (Definitions) you will see that there is
no burden of proof or
burden of declaration."

Then it would appear that the matter is just that you
either cannot read or are just too dense to be able to
interpret what others are saying.

Um, dude, about 4 people total (here and RPG.NET) have now chimed in think you are saying the same thing I think you are saying. Are we all dense? You said twice above that there is no burden on the part of the PI owner to declare PI. What are we supposed to think if not that you believe there is no burden not to declare PI?

And, no...you did not quote any such thing. My
statements that a definition of Product Identity is in
the OGL had nothing to do with declaration of PI.

Dude, you are very close to convincing me you are crossing from confused into trolling. Both of those quotes specifically saying there is no burden of declaration for PI. You wrote BOTH of them.

I am saying that the OGL says that
that declaration is not the only requirement for
something to be PI.

No, your quotes say there is, and I quote: "
no burden of proof or
burden of declaration."

Chris, I'm quoting you _IN_CONTEXT_. And verbatim, at that. What are you trying to prove here?

But I will again tell you to not put words into my
mouth.

I am QUOTING YOU, Dude. Quoting you. That's not putting words in your mouth. Last I checked you typed those words, not me. And I'm not quoting you out of context. And I'm not the only one confused about what your position is.

Tell Monte Cooke, Green Ronin, and Mongoose that
their sales are suffering because of the OGL.

What does this have to even do with anything at hand?

You claimed that people who are releasing lots of OGC are doing things that are bad for business. Those are probably 3 of the top 5 d20 publishers in the industry, all of whom produce TONS of OGC.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

--- Weldon Dodd [EMAIL PROTECTED] wrote:
 Well, you've lost me too. The license says that any
 material that is eligible to be PI must be declared 
 to be PI and must be excluded from OGC to
 actually be PI. It must also appear in a work
 licensed under the OGL to be
 covered by the OGL. Under what conditions can
 something be PI without
 meeting these conditions and being covered under the
 OGL?

Ok, again...from section 1(e) of the Open Gaming
License this is the definition of Product Identity:
'Product Identity' means product and product line
names, logos and identifying marks including trade
dress; artifacts; creatures characters; stories,
storylines, plots, thematic elements, dialogue,
incidents, language, artwork, symbols, designs,
depictions, likenesses, formats, poses, concepts,
themes and graphic, photographic and other visual or
audio representations; names and descriptions of
characters, spells, enchantments, personalities,
teams, personas, likenesses and special abilities;
places, locations, environments, creatures, equipment,
magical or supernatural abilities or effects, logos,
symbols, or graphic designs; and any other trademark
or registered trademark clearly identified as Product
identity by the owner of the Product Identity, and
which specifically excludes the Open Game Content

This is the definition of Product Identity that I have
been using all along. You will notice that since it
contains the phrase and any other trademark or
registered trademark clearly identified as Product
identity by the owner of the Product Identity, and
which specifically excludes the Open Game Content
that I do understand that declared PI is a part of PI.
What I have been saying, and I am not sure how much
more clearly I can say it, is that the PI declaration
is not the only PI that exists under the OGL.

And then, from section 7 (Use of Product Identity):
You agree not to Use any Product Identity, including
as an indication as to compatibility, except as
expressly licensed in another, independent Agreement
with the owner of each element of that Product
Identity. 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. The use of any Product
Identity in Open Game Content does not constitute a
challenge to the ownership of that Product Identity.
The owner of any Product Identity used in Open Game
Content shall retain all rights, title and interest in
and to that Product Identity.

You will notice that this section does not only
include PI that has been declared to be so, but
actually anything that is defined as PI under section
1(e) of the license. This is all that have have been
saying all along.

You will notice that by saying this I am not stating
that PI does not need to be declared, nor am I saying
that there is a gigantic pool of PI anyplace, nor am I
saying that there is one true way to declare PI. I
have never made those statements, and in fact I am
stating what I read in the OGL. None of these stances
or staements have changed since I started addressing
this subject.

Once again, I will state that I am not trying to
impose my interpretation of the OGL on anyone and that
what I am interpresting only has to do with me.

Thanks,

Chris
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

Tim, you asked for clearer examples and questions. I'll try to explain myself better, because I'd like to hear your take too.

The fundamental question is: does someone not listed in your section 15 have rights to sue you under the OGL (not under copyright or trademark law, but under breach of contract)?

One question has been debated ad nauseum before: is PI declared in games everywhere binding upon everyone, or just in the games where it appears section 15'd?

My question now goes beyond that, and asks are there third party rights of law suit for people who aren't even signed on to any version of the OGL? If so, in what circumstances?

The PI definitions section specifically says what constitutes PI, but doesn't say that you have to be a party to the licensing contract to declare PI. It says you just have to be the owner.

Now, the simplest scenario is a licensed product. I go to Warner Bros. and ask for permission to make a licensed Teen Titans OGL covered product. I'm the one using the OGL, not them. Can they make me, as their agent in all this, declare all their stuff except the gaming bits, as PI -- they are declaring it through me, and I'm the one in the Section 15? Can I sue for breach against you if you use their PI? Can Warner Bros. sue for BREACH (not for copyright infringement, but for BREACH)?

Now, assume Warner Bros. has no intention of using the OGL ever. Can they declare all their stuff as "Product Identity" and say, "Warning: We don't use the OGL, but if you do, all our intellectual property is always Product Identity"? If they do, will they have any standing to sue for breach of contract if I do what would otherwise be deemed making fair use of their products (like quoting a sentence from Nightwing and attributing it appropriately)? If that quote were PI in an OGL'd source in my section 15 they could claim breach. But here they are a 3rd party, out in the ocean, and trying to claim breach? Do they have any express or implied third party beneficiary rights under the OGL to sue for breach?

Those are the two questions?

Chris raised, to his credit, an interesting point, that the PI definition doesn't say you have to be the OGL contributor to declare PI. I was over here trying to see if his point had credence.

I think Weldon's post on Section 2 and my own knowledge of contractual construction have answered my questions to my satisfaction, but if you have 2 cents to ante up, I'm all ears, sir.

Hopefully I was clearer this time.

Have a great day.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

In a message dated 3/1/2005 12:20:38 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

What I have been saying, and I am not sure how much
more clearly I can say it, is that the PI declaration
is not the only PI that exists under the OGL.



Weldon, he seems to now be claiming that:

a) only trademarks need to be declared as PI; and
b) everything else that is PI eligible is PI even if it's not declared.

Imagine that only poses and trademarks are PI eligible. He's reading the definition to say:

"PI means any trademarks clearly declared as PI and all poses."

As opposed to:

"PI must be declared as 'Product Identity' to be considered PI. The only things that you can declare as PI are your poses and trademarks."

The sentence's punctuation is open to multiple constructions. The former reading I have eschewed simply because it makes it MORE work to protect a trademark than a pose, and trademarks are almost the definition of "Product Identity", so I find that reading labored. I think the second reading is closer to the intent of the contract since the contract says explicitly that everything in the work covered by the license is OGC if it ain't PI, and so you are required to demarcate the line between PI and OGC to make it very clear.

Chris also seems to think (and I say _seems_ 'cause I have no notion what Chris actually think any more) that the license has third party beneficiaries with enforceable contractual rights -- people who can sue you for breach of the OGL because they have intellectual properties from the PI list which are protected as PI (except for trademarks for some reason) even if they don't mark them as PI.


nor am I saying
that there is a gigantic pool of PI anyplace,

No, that's just the logical implication of having undeclared PI by everyone who has ever drawn a pose or used language having contractual rights to sue for breach against anyone who has agreed to use the OGL.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

 

 -Original Message-
 From: Chris Helton
 This is the definition of Product Identity that I have been 
 using all along. You will notice that since it contains the 
 phrase and any other trademark or registered trademark 
 clearly identified as Product identity by the owner of the 
 Product Identity, and which specifically excludes the Open 
 Game Content
 that I do understand that declared PI is a part of PI.
 What I have been saying, and I am not sure how much more 
 clearly I can say it, is that the PI declaration is not the 
 only PI that exists under the OGL.

OK. I get it. You're reading this section of the license in a completely
different way than me (and I would say everyone else). I read the license to
say that there is a list of things that can be PI and that list is inclusive
up to registered trademark at which point the license says what you must
do to make those things PI. All of those things that could be PI up to and
including registered trademarks must be clearly identified and
specifically exclude OGC. So in my interpretation, there is no PI unless it
is clearly identified. It's not just one way to be PI, it's the only way.

In fact, since PI only has meaning within the license, you could say that PI
must appear in the licensed work such that it would be OGC if it were not
otherwise identified as PI. For example, if you declare chapter 2 (and only
chapter 2) to be OGC then a name that appears only in chapter 1 is not PI
because it's not included in OGC and doesn't need to be excluded from OGC by
being clearly identified as PI. In this scenario, the name is just
copyrighted material that is not OGC.

This is the current interpretation on this list and is shared by the
majority of large publishers that post here.

 You will notice that this section does not only include PI 
 that has been declared to be so, but actually anything that 
 is defined as PI under section
 1(e) of the license. This is all that have have been saying all along.

Section 1 says PI must be clearly identified to be such. This is the heart
of our disagreement.

 Once again, I will state that I am not trying to impose my 
 interpretation of the OGL on anyone and that what I am 
 interpresting only has to do with me.

Fair enough, but maybe you should read the OGL faq to see where I get my
interpretation.


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 12:58:17 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Section 1 says PI must be clearly identified to be such. This is the heart
of our disagreement.

Right, Weldon, and here's the problem I have with Chris' interpretation. The PI Definition says (with some intervening words removed):

"Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity...

By Chris' readings, product lines, product line names, logos, and identifiying marks including trade dress would PI without declaration, but any other type of trademark must be identified as PI to be PI. That seems WAY arbitrary. Why would I need to declare the registered trademark for my company as PI, but I would not have to declare the unregistered common law trademark on my product line as PI. Why would my company's logo be automatically protected, but my company's name (which is not a product name or product line) requires a PI designation?

The seeming arbitrariness of that notion compels me to take a contrary reading.

Apparently you feel the same way.

Lee


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

Not saying which interpretation of that line is right or wrong, but it 
would seem to me that if Chris' interpretation is correct you wouldn't 
have to mark it as PI.. its simple ommision from the Open Content of the 
product would seem to be enough.

[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 12:58:17 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

Section 1 says PI must be clearly identified to be such. This is the 
heart
of our disagreement.

Right, Weldon, and here's the problem I have with Chris' 
interpretation.  The PI Definition says (with some intervening words 
removed):

Product Identity means product and product line names, logos and 
identifying marks including trade dress; artifacts; and any other 
trademark or registered trademark clearly identified as Product 
identity by the owner of the Product Identity...

By Chris' readings, product lines, product line names, logos, and 
identifiying marks including trade dress would PI without declaration, 
but any other type of trademark must be identified as PI to be PI.  
That seems WAY arbitrary.  Why would I need to declare the registered 
trademark for my company as PI, but I would not have to declare the 
unregistered common law trademark on my product line as PI.  Why would 
my company's logo be automatically protected, but my company's name 
(which is not a product name or product line) requires a PI designation?

The seeming arbitrariness of that notion compels me to take a contrary 
reading.

Apparently you feel the same way.
Lee


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)

On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can 
declare Product:

 Tim, you asked for clearer examples and questions.  I'll try to
 explain myself better, because I'd like to hear your take too.
 
 The fundamental question is: does someone not listed in your section
 15 have rights to sue you under the OGL (not under copyright or
 trademark law, but under breach of contract)?
 

Pretty tough question, and would most certainly depend upon the 
circumstances involved as I can easily two separate cases where the 
answer yes applies to one, and the answer no applies to the 
other. Plus there are sure to be a myriad of situations inbetween 
that really bullox things up.

 One question has been debated ad nauseum before: is PI declared in
 games everywhere binding upon everyone, or just in the games where it
 appears section 15'd?
 

As Spikey pointed out much earlier, outside of the context of the 
OGL, PI has no single legal definition. PI is actually the 
combination of several different types of IP all lumped together for 
the use of convienence.

 My question now goes beyond that, and asks are there third party
 rights of law suit for people who aren't even signed on to any version
 of the OGL?  If so, in what circumstances?
 
It is possible that somebody who is not using the OGL may be able to 
sue somebody who is, however, I do not think that they can sue them 
over contract/liscense violations, only those involved in the license 
can do that.

 The PI definitions section specifically says what constitutes PI, but
 doesn't say that you have to be a party to the licensing contract to
 declare PI.  It says you just have to be the owner.
 

Which brings us back to the fact that PI has no legal definition 
outside of the OGL. As such, I do not think you can declare PI if 
you are not using the OGL. Always remember that contracts and 
licenses will often mention things, both implicitly and explicitly, 
but in almost all cases, those things mentioned will point back to 
the contract or license itself. (note: I did say almost!!).

Also, a contract or license cannot over-ride general intellectual 
property laws. They may do so on an individual basis for one or more 
of those who are a part of that license or contract, but they cannot 
change the actual laws themselves.

 Now, the simplest scenario is a licensed product.  I go to Warner
 Bros. and ask for permission to make a licensed Teen Titans OGL
 covered product.  I'm the one using the OGL, not them.  Can they make
 me, as their agent in all this, declare all their stuff except the
 gaming bits, as PI -- they are declaring it through me, and I'm the

Yes, they can. Most likely it will be a clause or such in YOUR 
license with THEM that allows for you to do so on their behalf. 
However, chances are that is the only rights you have concerning 
those things to be declared. (other than your own uses).

 one  in the Section 15?  Can I sue for breach against you if you use
 their PI?  Can Warner Bros. sue for BREACH (not for copyright
 infringement, but for BREACH)?
 

Hmm... I would say yes. Due to your agreements with WB, you are most 
likely engaged to protect their interests while you are licensing 
them, and that includes policing anything that might be using their 
material.

 Now, assume Warner Bros. has no intention of using the OGL ever.  Can
 they declare all their stuff as Product Identity and say, Warning:
 We don't use the OGL, but if you do, all our intellectual property is

IMO, No, they cannot. Unless they are using the license themselves, 
then they cannot try to define something for those who are using the 
license, however see below

 always Product Identity?  If they do, will they have any standing to
 sue for breach of contract if I do what would otherwise be deemed
 making fair use of their products (like quoting a sentence from
 Nightwing and attributing it appropriately)?  

No, but chances are they would not actually sue for that, but for 
copyright breach and/or trademark infringement. 

If that quote were PI in
 an OGL'd source in my section 15 they could claim breach.  But here
 they are a 3rd party, out in the ocean, and trying to claim breach? 
 Do they have any express or implied third party beneficiary rights
 under the OGL to sue for breach?
 

No. They are not a party of the license, and would not be considered 
a beneficiary either, so they would have no standing as such.

 Chris raised, to his credit, an interesting point, that the PI
 definition doesn't say you have to be the OGL contributor to declare
 PI.  I was over here trying to see if his point had credence.
 

The Definition of PI is NOT a fast and hard definition. It is more of 
a list of acceptable types of intellectual property that CAN be 
claimed as PI. 

That is the understanding of those who helped cobble the OGL together 
and that would stand up in a court of law (intent) with enough 
witnesses.  

Note that there are three

RE: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

 

 -Original Message-
 From: avatar of Darkness
 Not saying which interpretation of that line is right or 
 wrong, but it would seem to me that if Chris' interpretation 
 is correct you wouldn't have to mark it as PI.. its simple 
 ommision from the Open Content of the product would seem to be enough.

Prevailing wisdom is that there are three types of content in a work covered
by the OGL. Material must be identified as OGC to be open (section 8) so
there exists the possibility that there is content that is not identified as
OGC. This second type is just normal copyrighted material that is not
licensed. The third type is Product Identity which specifically means
material that is included in OGC but is meant to be explicitly excluded from
the terms of the license for open material. If material is ommitted from OGC
(meaning it doesn't appear in a section of OGC material), it can't be PI.
That material would be the second type of normal, non-open content.


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 1:14:49 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Not saying which interpretation of that line is right or wrong, but it 
would seem to me that if Chris' interpretation is correct you wouldn't 
have to mark it as PI.. its simple ommision from the Open Content of the 
product would seem to be enough.

Except that, unambiguously, at least some types of PI _have_to_be_ clearly identified. The only question is whether that is some or all parts?

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

The problem with Democracy is that 'prevailing wisdom' is often wrong.
I'm not saying that there is a 'correct' interpretation, just that until 
such time as a case actually goes to court there is no 'correct' 
interpretation.

Because of that, there is pleanty of legal ground to argue that the OGL 
covers an entire work and that material within that work is either OGC 
or PI. If you check the license there is no description of what Other 
stuff not covered by the license would look like or how to handle it.

Weldon Dodd wrote:
-Original Message-
From: avatar of Darkness
Not saying which interpretation of that line is right or 
wrong, but it would seem to me that if Chris' interpretation 
is correct you wouldn't have to mark it as PI.. its simple 
ommision from the Open Content of the product would seem to be enough.
   

Prevailing wisdom is that there are three types of content in a work covered
by the OGL. Material must be identified as OGC to be open (section 8) so
there exists the possibility that there is content that is not identified as
OGC. This second type is just normal copyrighted material that is not
licensed. The third type is Product Identity which specifically means
material that is included in OGC but is meant to be explicitly excluded from
the terms of the license for open material. If material is ommitted from OGC
(meaning it doesn't appear in a section of OGC material), it can't be PI.
That material would be the second type of normal, non-open content.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

 

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

Out of that list.. which peices in a work do you think would be 
necessary that can't be covered by 'story' and 'thematic elements'?

[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 1:14:49 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

Not saying which interpretation of that line is right or wrong, but it
would seem to me that if Chris' interpretation is correct you wouldn't
have to mark it as PI.. its simple ommision from the Open Content of the
product would seem to be enough.

Except that, unambiguously, at least some types of PI _have_to_be_ 
clearly identified.  The only question is whether that is some or all 
parts?

Lee

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 1:51:39 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Out of that list.. which peices in a work do you think would be 
necessary that can't be covered by 'story' and 'thematic elements'?


Necessary? I'm confused by the question Avatar. Happy to chime in politely on the subject, but I don't understand the question.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

 

 -Original Message-
 From: avatar of Darkness
 Because of that, there is pleanty of legal ground to argue 
 that the OGL covers an entire work and that material within 
 that work is either OGC or PI. If you check the license there 
 is no description of what Other stuff not covered by the 
 license would look like or how to handle it.

The argument isn't that the material is not covered by the license. The
argument is that the terms of the license to reuse open content only applies
to content that is clearly identified as open (which is what the license
says). PI is content that is explicitly excluded from OGC because otherwise
the OGC designation would include it. There is an implication of a third
type of content that is not designated as OGC or PI and is therefore
non-open.

The license does not require you to cleary identify non-open material. It
only requires that you identify OGC or PI. The ommission is purposeful and
allows for this third type of content. Basically the license says, any
content not clearly identified as being licensed is not licensed. It thus
protects the author from unwittingly releasing material as open that is not
clearly identified as open.

The clearly identified requirement is very clear and must be explicitly
made for both OGC and PI. Anything that is not clearly identified or
designated as OGC or PI is non-open.


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

The statement was that there are some types of PI that would have to be 
marked. If we are assuming a particular interpretation of the quote 
below where in the items not listed there have to be clearly identified 
by the owner (as opposed to the standard interpretation where in this is 
just a list of examples of things that can be declared).

Looking over the list, it seems pretty comprehensive. Given the 
assumptions above in an example product, what would 'have to be 
declared' if we assume that each of the below items is automatically 
assumed to be PI?


  Product Identity means product and product line names, logos and 
identifying marks including trade dress; artifacts; creatures 
characters; stories, storylines, plots, thematic elements, dialogue, 
incidents, language, artwork, symbols, designs, depictions, likenesses, 
formats, poses, concepts, themes and graphic, photographic and other 
visual or audio representations; names and descriptions of characters, 
spells, enchantments, personalities, teams, personas, likenesses and 
special abilities; places, locations, environments, creatures, 
equipment, magical or supernatural abilities or effects, logos, symbols, 
or graphic designs; and any other trademark or registered trademark 
clearly identified as Product identity by the owner of the Product 
Identity, and which specifically excludes the Open Game Content;


[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 1:51:39 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

Out of that list.. which peices in a work do you think would be
necessary that can't be covered by 'story' and 'thematic elements'?

Necessary?  I'm confused by the question Avatar.  Happy to chime in 
politely on the subject, but I don't understand the question.

Lee

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] The Mysterious Third Type of Content

--- [EMAIL PROTECTED] wrote:
 Right, but the license says any WORK covered by the
 OGL is 100% OGC except the parts that are PI.

Once again, would you please quote the relevant
section of the OGL that states this, please? I have
re-read the OGL a number of times today, during the
course of this discussion and twice since you
mentioned it the first time. I can find no reference
to this claim.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

RE: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

On 1 Mar 2005 Weldon scribbled a note about RE: [OGF-L] Who can declare 
ProductIdentity (Thir:

 The argument isn't that the material is not covered by the license.
 The argument is that the terms of the license to reuse open content
 only applies to content that is clearly identified as open (which is
 what the license says). PI is content that is explicitly excluded from
 OGC because otherwise the OGC designation would include it. There is
 an implication of a third type of content that is not designated as
 OGC or PI and is therefore non-open.

Aha... Here is possibly a good way to look at it...

begin product
unlabled content /
begin Open Content
PI material (within the open content
/close open content
unlabled content /
/end product

The whole purpose behind PI is to be able to exclude material from 
sections marked as Open Content, plain and simple.

Anything not marked as Open Content or as PI, falls back to be 
covered by standard copyright and trademark laws.

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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] The Mysterious Third Type of Content

On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] The 
Mysterious Third Type of Content:

 Open Game Content... means ANY WORK COVERED BY THIS LICENSE... but
 specifically excludes Product Identity.
 
 The definition of the work has a bizarre redundancy in it --
 everything listed in that definition except PI and the phrase any
 work covered by this license is a logical subset of any work covered
 by this license. As soon as the entire work minus the PI is OGC then
 the rest of that sentence is not null, it's just redundant.

Notice that WORK is not fully defined though. Any materiel released 
under the license in a given product is the WORK.

For example, if I had 10 paragraphs (ok, really big paragraphs) in a 
100 page product, then for the purpose of the license, those 10 
paragraphs equals the WORK, nothing else within the product does. 
Now, out of those ten paragraphs, I could then declare that the name 
Mitzi (from the spell Mitzi's Meatball of Death) as PI. 

While the entire spell (which is part of those 10 paragraphs) is OGC, 
that one single word, which I declared as PI is not.


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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 1:46:13 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

The problem with Democracy is that 'prevailing wisdom' is often wrong.

Except in this case, the prevailing wisdom is largely on target. The license says explicitly the entirety of the covered work is OGC except that which is PI. In a multi-part complex work (which contains other works), including some books, and most magazines, the enclosing work may not be covered, which one enclosed work might be. The enclosed work that is covered will be 100% covered and the sum of its OGC and PI parts will equal 100% of that covered work, while the magazine (which is not covered) will have one article with PI and OGC the rest with normal copyrighted contents.

I'm not saying that there is a 'correct' interpretation, just that until
such time as a case actually goes to court there is no 'correct'
interpretation.

The license is explicit that for a covered work it's all 100% OGC except the parts that are PI.

Because of that, there is pleanty of legal ground to argue that the OGL
covers an entire work and that material within that work is either OGC
or PI. If you check the license there is no description of what "Other
stuff not covered by the license" would look like or how to handle it.

No, and the multi-part work or compilation where a work contains other works is the most common way that it can occur. The license doesn't need to cover that possibility for it to be a legally possible application of its use.

Note that I have contended for a long time that the license explicitly covers a whole WORK (it says so). And it doesn't provide that only part of the work can be covered. But in a compilation or multi-part work, you can have a chapter or an article which could be published separately as a work and that work can be covered separately from the surrounding volume, just each article in a gaming magazine may be separately covered by a separate Section 15. This not uncommonly occurs in Dragon Magazine (particularly for Green Ronin) when they publish some of their ads or an excerpt of their latest book.

Dragon is not an OGL covered publication but some parts of it, constituting works in and of themselves, are covered works.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

While your use of tagging is pretty spiffy, it isn't that useful as it 
could support both sides of the discussion.

Is it:
begin product
PI material (outside open content /
begin Open Content
PI material (within the open content
/close open content
PI Matierial (outside open content /
/end product
OR
begin product
Standard copyright content /
begin Open Content
PI material (within the open content
/close open content
Standard copyright content /
/end product
Up until your last sentence I thought you were going with version 1, but the 
last sentence leads me to belive you meant version 2.


Tim Dugger wrote:
On 1 Mar 2005 Weldon scribbled a note about RE: [OGF-L] Who can declare 
ProductIdentity (Thir:
 

The argument isn't that the material is not covered by the license.
The argument is that the terms of the license to reuse open content
only applies to content that is clearly identified as open (which is
what the license says). PI is content that is explicitly excluded from
OGC because otherwise the OGC designation would include it. There is
an implication of a third type of content that is not designated as
OGC or PI and is therefore non-open.
   

Aha... Here is possibly a good way to look at it...
begin product
unlabled content /
begin Open Content
PI material (within the open content
/close open content
unlabled content /
/end product
The whole purpose behind PI is to be able to exclude material from 
sections marked as Open Content, plain and simple.

Anything not marked as Open Content or as PI, falls back to be 
covered by standard copyright and trademark laws.

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

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

 

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 2:20:10 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

And where does it say that the covered work is 100%
OGC, except for the parts that are PI?


In the definition you quoted (from me) it says THE WORK that's covered is OGC except the parts that are PI. Work is a legal term of art, varying from industry to industry, but will generally mean a complete artistic product or sales unit. An article, a book, a poem are a work. A sentence or paragraph usually, but not always, are deemed to be NOT a work. There is some flexibility as to the definition of the work, but once you say: This is the work covered by the product and define what is covered, of the stuff that's covered, it's 100% OGC except for the parts that are PI via the definition of OGC.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

Except what you are saying disagrees with prevailing wisdom. 'Prevaliing 
Wisdom' says that out of 100% of a work, X% = OGC, Y% = PI, and Z% = 
Standard Copyright law stuff where X + Y + Z = 100%. I think you 
switched positions somewhere along the way.

[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 1:46:13 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

The problem with Democracy is that 'prevailing wisdom' is often wrong.


Except in this case, the prevailing wisdom is largely on target.  The 
license says explicitly the entirety of the covered work is OGC except 
that which is PI.  In a multi-part complex work (which contains other 
works), including some books, and most magazines, the enclosing work 
may not be covered, which one enclosed work might be.  The enclosed 
work that is covered will be 100% covered and the sum of its OGC and 
PI parts will equal 100% of that covered work, while the magazine 
(which is not covered) will have one article with PI and OGC the rest 
with normal copyrighted contents.

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 3:06:48 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

I think you 
switched positions somewhere along the way.

BTW -- I sometimes do switch sides on issues when I play devil's advocate. Read the archives and you'll see me do that. In general, though, I make it pretty obvious when I'm trying to play on both sides of the fence to evoke commentary for either or both sides and promote intellectual debate on a subject. Today is not one of those days.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

Yes but when you said:
By Chris' readings, product lines, product line names, logos, and 
identifiying marks including trade dress would PI without declaration, 
but any other type of trademark must be identified as PI to be PI.  That 
seems WAY arbitrary.  Why would I need to declare the registered 
trademark for my company as PI, but I would not have to declare the 
unregistered common law trademark on my product line as PI.  Why would 
my company's logo be automatically protected, but my company's name 
(which is not a product name or product line) requires a PI designation? 

You were arguing against that particular interpretation by saying it was 
non-sensicle given a set of assumptions and then you ignore the 
assumption. Basically you were saying that if we interpret winged-pigs 
as being good fliers that makes no sense because pigs don't have wings. 
We're assuming pigs have wings so they could very well be good fliers 
but winged-pigs can't be good fliers because pigs don't have wings.

If you're going to properly test a definition you have to give all the 
predicating assuptions proper credence.

[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 2:22:05 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

Looking over the list, it seems pretty comprehensive. Given the
assumptions above in an example product, what would 'have to be
declared' if we assume that each of the below items is automatically
assumed to be PI?

I reject that definition for reasons I've already explained.  I 
consider it a very strained reading of the contract.

Perhaps someone else will bite.
Sorry.
Lee

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 3:20:18 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

You were arguing against that particular interpretation by saying it was
non-sensicle given a set of assumptions and then you ignore the
assumption.

No, it's non-sensical given that it makes NO sense that every type of trademark except non-logo, non-product line registered trademarks gets auto-declaration and that you have to overtly declare non-logo, non-product line registered trademarks.

I haven't switched or ignored that. That makes no bloody sense. Whereas declaring all those things as PI so that the end user is ultra clear about what is and is not PI seems completely in keeping with the intent of the license (to specify overtly what is and is not licensed).

Basically you were saying that if we interpret winged-pigs
as being good fliers that makes no sense because pigs don't have wings.
We're assuming pigs have wings so they could very well be good fliers
but winged-pigs can't be good fliers because pigs don't have wings.

Right. And you can make assumptions all day that go against:

a) laws related to contractual construction;
b) industry practices;
c) the clear intent of the license.

More power to you. I won't play that game though.

You want me to abandon a-c and pick out of two possible readings of one section taken in isolation the reading that goes against a-c taken in context. Sorry. Not me. I pass.

If you're going to properly test a definition you have to give all the
predicating assuptions proper credence.

Yes, but proper credence is just that. It is not EQUAL credence. You weigh each one out in context, and give each one the proper credence it is due.

I did test the definition. If everything is automatically PI even if you don't declare it as PI then you can't OGC almost anything, defeating the intent of the license.

Now alternately, if you feel instead that those things are automatically considered PI, but only if you don't OGC them, then the point is largely moot, because at that point you've attached the license to a work. The work is covered, the part that's OGC is listed. Everything else is PI. And the only question is whether you are open to a claim of breach or whether you unmarked parts may, by a court, be considered OGC accidentally since you didn't declare them as anything (if a court feels that you must declare PI and you didn't declare one part anything and if the covered work is OGC except the parts declared as PI you just accidentally OGC'd something). Since the latter situation is:

a) either moot or
b) puts you at unnecessary risk because you are too lazy to declare something

I think it's a REALLY bad reading.

I've weighed things. I just haven't treated that argument as having the same level of credibility you have. I've weighed what I know of:

a) contract law;
b) the intent of the contract;
c) industry practice;
d) effects and outcomes of the interpretation;
e) risks of the interpretation if a court disagrees

and found Chris' interpretation lacking.

That's not the same as not considering it at all.

Indeed I started this thread precisely to test one of Chris' readings (which effectively considered the possibility of third party beneficiaries with rights to bring suit even though he didn't state it that way).

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] The Mysterious Third Type of Content

In a message dated 3/1/2005 3:25:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Note howevever that you are required to declare the OGC, thus you 
must, by strictures within the license, define the work as covered by 
the license.



What you define as OGC is not the same as the work covered by the license in my mind. The license applies (i.e., is a license for) OGC, but it covers PI too. It also potentially covers things external to the covered work (in the no-compatibility declaration clause).

never said it was covered by the license, said it was covered by 
standard copyright and trademark laws.



Right. My point is that people say the license creates a third type of content, and I say that third type of content is largely (except the no compatiblity declarations "in conjunction with" bit) outside the scope of the license. Not a third type of content covered by the license.

It's a relatively narrow distinction.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] The Mysterious Third Type of Content

--- [EMAIL PROTECTED] wrote:
 Open Game Content means ... ANY WORK COVERED BY
 THIS LICENSE... but specifically excludes Product 
 Identity. 

Do you mean this section? 

'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.

Where exactly do you get that 100% of the work is
OGC from this statement. Because there doesn't seem to
be anything in the full text that says that. Of
course, your broken up quote of the text doesn't say
that either.


___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)





See, but the discussion at that point was:

Prevailing Wisdom:
X% = OGC
Y% = PI
Z% = Copyrighted Matierial
X + Y + Z = 100%

VS

Other Method:
X% = OGC
Y% = PI
X + Y = 100%

So when Wheldon Dodd said: "Prevailing wisdom is that there are three
types of content in a work covered

by the OGL."

And I said: "The problem with Democracy is that 'prevailing wisdom' is
often wrong."

And then you said: "Except in this case,
the prevailing wisdom is largely on target."

What you meant was that the Prevailing Wisdom was
approximately right, but you really prefered the other method? Are you
sure you're not just arguing to argue?



[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 3:06:48 PM
Eastern Standard Time, [EMAIL PROTECTED] writes:
  
  
  Except
what you are saying disagrees with prevailing wisdom. 'Prevaliing 
Wisdom' says that out of 100% of a work, X% = OGC, Y% = PI, and Z% = 
Standard Copyright law stuff where X + Y + Z = 100%. I think you 
switched positions somewhere along the way.
  
  
I was implying that prevailing wisdom is approximately right, but that
Z typically should appear only in multi-part works and compilations
since people typically choose to apply the OGL to an entire book (with
the exception of a handful of people who apply it to a single article,
ad, or appendix).
  
If you read the archives from about 6 months+ back you'll see I've
stuck to this position ever since I did a close reading of the
definition of OGC.
  
Lee
  

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l





___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] The Mysterious Third Type of Content

On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] The 
Mysterious Third Type of Content:

 In that definition (parts that I trimmed) it made reference to U.S.
 copyright law, thereby drawing in the term of art work in the
 lexicon of the contract without redefining it in any substantive way. 
 When you apply this license to a Work the work becomes OGC except the
 parts that are PI, because any work covered by the license is OGC.

The part of a product that you declare as Open Game Content is the 
Work referenced as only what you declare as OGC is covered by the 
license.

I have a 16 page product. I declare 1 page as OGC. As far as the 
license is concerned, that 1 page IS the WORK as is mentioned within 
the license. That, and anything you declare as PI. All other material 
in the product, that is not listed as either, falls under normal 
copyright laws.

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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

On 1 Mar 2005 avatar scribbled a note about Re: [OGF-L] Who can declare 
ProductIdentity (Thir:

 What I don't see is the difference between Closed because its PI and
 Closed because it falls under Copyright Law. Closed is closed, you
 can't use it. Beyond that, because your 16 page PDF is a single
 'work', the OGL covers that entire work weather you want it to or not.
 On the other hand, if it was a webpage, that single page is a document
 in and of itself and could be considered a 'work' within the whole of
 the webpage. In which case I can see only that single page being
 covered by the OGL while the rest of the website falls under normal
 copyright law.

PI is closed content WITHIN something marked as Open Game Content. 
Other content outside of that OGC declaration is not covered by the 
license, and there for normally closed as per copyright and trademark 
lasws.

No, the OGL does not cover my 16 page pdf whether I want it to or 
not. It only covers what material that I declare as open content, and 
the material declared as PI (that is within the open content) and 
nothing more.





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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 3:48:47 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Point blank, are you a
publisher? Yes or No.

I've put out a couple of small things with the OGL. And I've done some work on two other publisher's projects.

I do public policy work and litigative consulting (I act as a consultant to lawyers as a case strategist, as an assitant to expert witnesses, and once as an expert myself for an administrative hearing). I specialize in civil rights policy, but I have a strong interest in gaming industry law.

But I've been long involved in the industry as an amateur (doing playtesting, etc.)

Right now I and 3 business partners are about to setup our LLC. Our company's financial resources are aimed at putting out a Collectible Card game, and since that may cost $40,000 just to start I haven't targeted much time to bringing out anything new under the OGL to market. I have about 100 pages of materials, but it is not edited and won't be until our CCG comes out.

You can make your faux intellectual debates if
you want but that isn't the nature of the debate on
this list.

Actually, again, I said I wasn't playing devil's advocate right now.

In fact, if anything, I came here and started this bloody thread to see if I could have my opinions changed about the credibility of your point. I was looking for enlightened discussion, to see if there was anything credible about your position. I came here with an open mind, but Weldon brought up some points and I found something in case law that made up my mind.

You came here looking for a fight. I didn't even know you were a list member.

I'm expressing my opinions. And since I have used and ill continue to use the OGL for publications, either amateur or professional, that makes me have an interest in the license.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

Yep. That's my cue to get out of the pool.
[EMAIL PROTECTED] wrote:
In a message dated 3/1/2005 3:44:15 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

And then you said: Except in this case, the prevailing wisdom is 
largely on target.

What you meant was that the Prevailing Wisdom was approximately right,
Which is what largely on target means, at least to me.  Largely on 
target is not the same as precisely on target.  It's off a little in 
my opinion.

There are 3 types of content in lots of works containing OGC, but 
frequently the parts that aren't OGC or PI aren't covered at all by 
the OGL except tangentially (in the no compatibility declarations clause).

Are you sure you're not just arguing to argue?

Dude.  If you back and check the archives, you'll see that I've had 
the same position on this for a LONG time, and it hasn't wavered much.

The distinction is largely academic.  The only time it matters is in a 
question of whether someone has standing (under the OGL, not 
traditional IP law) to bring a suit regarding something in a work that 
that's listed as neither OGC nor PI.

The other thing is, my interpretation opens up the people who slap the 
OGL on a whole book, list that book's copyright in Section 15, etc. to 
a potentially nasty surprise in court.  A court if, it agrees with me 
that covered works are 100% OGC+PI would then be left to its own 
devices to determine whether undeclared areas of a work are OGC or PI.

This latter area is not likely to come up at law, so it's largely 
moot.  It is, at best, for most purposes, a technically nuanced 
distinction that COULD matter a lot, but in practice probably won't.

Lee

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

Huh.. you're right. For some reason I think I got my definition on 
'work' mixed up with that from the Dominion Rules License. Thanks for 
pointing that out.

Tim Dugger wrote:
On 1 Mar 2005 avatar scribbled a note about Re: [OGF-L] Who can declare 
ProductIdentity (Thir:
 

What I don't see is the difference between Closed because its PI and
Closed because it falls under Copyright Law. Closed is closed, you
can't use it. Beyond that, because your 16 page PDF is a single
'work', the OGL covers that entire work weather you want it to or not.
On the other hand, if it was a webpage, that single page is a document
in and of itself and could be considered a 'work' within the whole of
the webpage. In which case I can see only that single page being
covered by the OGL while the rest of the website falls under normal
copyright law.
   

PI is closed content WITHIN something marked as Open Game Content. 
Other content outside of that OGC declaration is not covered by the 
license, and there for normally closed as per copyright and trademark 
lasws.

No, the OGL does not cover my 16 page pdf whether I want it to or 
not. It only covers what material that I declare as open content, and 
the material declared as PI (that is within the open content) and 
nothing more.



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

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

 

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

In a message dated 3/1/2005 4:10:56 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Ask in hypotheticals and 
there's sure to be someone out there who wants to get in a debate.


I prefer hypotheticals, because people tend to give less situational answers. They tend to think about a variety of related scenarios and give more thoughtful responses.

I don't always care that a specific answer ends up right, or even that I start out with the right answer, so much as I care about studying what people have to offer and teasing out what I feel is the truth out of the collective opinions presented. If it's the one I originally started with, so be it.

I've learned a lot even today. I wish the environment had been a little friendlier, but things happen.

So, I'll keep asking hypotheticals. I maintain an OGL FAQ for the benefit of neophyte publishers (particularly any new FUDGE publishers) and I like asking tough questions to make sure I have the best grasp I can have on the license. My FAQ is one of the most extensive around and includes a lot of subject matter areas that some of the others don't touch upon.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

--- avatar of Darkness [EMAIL PROTECTED] wrote:
 I'm afraid that for the hard questions you're not
 going to find much more than intellectual debate 
 as none of this has ever gone to court to 
 have any real legal precedent.

Ironically, I haven't been speaking in hypotheticals.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

Tim, I think the definition of work is slightly broader than that since it includes the definitions at law of derivative works, etc. Also, you are dictating what is covered by your copyright definition inserted into Section 15. If your copyright definition includes a whole book, then you are applying the license to the book in my opinion.

Your OGC'ing and PI'ing should be consistent with your copyright information in your section 15.

If, for example, you OGC  PI just your appendix, then you should not list your entire book in your section 15. You should make both pieces of information match up consistently.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

Must have missed it in the mess.
So what's your product and what are you worried about?
Chris Helton wrote:
--- avatar of Darkness [EMAIL PROTECTED] wrote:
 

I'm afraid that for the hard questions you're not
going to find much more than intellectual debate 
as none of this has ever gone to court to 
have any real legal precedent.
   

Ironically, I haven't been speaking in hypotheticals.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

 

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

--- avatar of Darkness [EMAIL PROTECTED] wrote:
 Must have missed it in the mess.
 So what's your product and what are you worried
 about?

I'm not worried about anything. I posted to a thread
on RPG.net where a person was asking about using the
terms beholder and mind flayer and I said that
they couldn't be used because they were the declared
PI of WotC. It blew out of proportion there because of
someone who doesn't seem to have a firm grasp on the
OGL.

The conversation then spread here when Darklord
posted, and I followed up to his posting here. I've
been a member of this list for about two years now.

I have designed for d20, the Action! System, and I
have developed my own second generation OGL system
called Open Core. I am also working on a
cross-publisher project with a small group of Fudge publishers.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] PI status for works NOT in your section 15

In a message dated 3/1/2005 4:49:26 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

I'm not worried about anything. I posted to a thread
on RPG.net where a person was asking about using the
terms "beholder" and "mind flayer" and I said that
they couldn't be used because they were the declared
PI of WotC.

I in turn claimed, that the only parties involved in a specific instance of the OGL are those listed in Section 15.

I noted that it was a multi-party license involving you with all the parties listed in your Section 15 (the contributors).

Further I claimed that only the PI designations in the works that are listed in Section 15 are likely binding on you. Those are the only ones which you have accepted a grant for, and so those are the only parties you owe consideration to, and only in exchange for the grants you have accepted.

Were that not the case then you would be bound by every PI designation in every work everywhere even if you had never seen the PI designation. Again, that would raise the issue of third party beneficiaries.

I contended that, in terms of OGL applicability, if you didn't use the SRD, then you are not bound by the PI declarations from a work you are not sourcing in your own product, so you wouldn't be bound by the SRD's PI designations.

That wouldn't free you from copyright or trademark infringement, just that the PI of the SRD is irrelevant to you if you haven't listed the SRD in your section 15.

Anyone other than Chris strongly disagree with these basic premises. Chris seems to think they are flawed in some way.

In my opinion, any work not in your Section 15 is a work you haven't accepted a grant from and for which you owe no consideration.

Now, an interesting question could arise if you have accepted a grant from work A in work B, are you then bound not to use A's PI in all your subsequent works or only in those which you source directly from work A? Perhaps that's a question for another day.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] Who can declare ProductIdentity (ThirdPartyBeneficiaries?)

Oh that arguement.
I've always gone on the assumption that for 'beholder' and 'mindflayer' 
to hold up as specific PI then it needs to obviously derivative. A 
monster called 'Beholder' that is a construct made of mirrors that traps 
people that behold it in those mirrors is fine as is the 'Mindflayer' 
psionic attack. On the other hand.. a floating eyeball with tentacles on 
its head called a beholder is derivative (But your honor, they are 
tentacles rather than eyestalks)

By the same token, to use a prior example a Pern Dragon that bonds 
psychically with its rider and can teleport is more than likely 
derivative and may have Anne McCaffrey's lawyers knocking on your door. 
There would be a strong case that you are in breach of contract with the 
OGL as well.

Chris Helton wrote:
--- avatar of Darkness [EMAIL PROTECTED] wrote:
 

Must have missed it in the mess.
So what's your product and what are you worried
about?
   

I'm not worried about anything. I posted to a thread
on RPG.net where a person was asking about using the
terms beholder and mind flayer and I said that
they couldn't be used because they were the declared
PI of WotC. It blew out of proportion there because of
someone who doesn't seem to have a firm grasp on the
OGL.
The conversation then spread here when Darklord
posted, and I followed up to his posting here. I've
been a member of this list for about two years now.
I have designed for d20, the Action! System, and I
have developed my own second generation OGL system
called Open Core. I am also working on a
cross-publisher project with a small group of Fudge publishers.
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

 

___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] PI status for works NOT in your section 15

On 1 Mar 2005 at 16:59, [EMAIL PROTECTED] wrote:

 That wouldn't free you from copyright or trademark infringement, just
 that the PI of the SRD is irrelevant to you if you haven't listed the
 SRD in your section 15.

Unless you are doing a product for Action! (which also uses the OGL - 
or any other system using the OGL, excepting the d20 System), it is 
impossible to do a product (using the d20 system) without listing the 
SRD in your section 15. That is the System Reference Document 
from which all other products using the (game engine developed by 
wotc) is a derivative of.

If you do not list that in your section 15, then you are in violation of the 
OGL itself. Remember, the Section 15 is meant to show where your 
non-original OGC came from. And the SRD is where everything 
originally came from, at least for the core mechanics.

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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] PI status for works NOT in your section 15

In a message dated 3/1/2005 5:47:40 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Unless you are doing a product for Action! (which also uses the OGL - 
or any other system using the OGL, excepting the d20 System), it is 
impossible to do a product (using the d20 system) without listing the 
SRD in your section 15. That is the "System Reference Document" 
from which all other products using the (game engine developed by 
wotc) is a derivative of.


You can easily do it. Design your own game. Or use FUDGE. LowDie. Action! There are 3 open systems plus anything you design on your own that doesn't require the SRD.

If you do not list that in your section 15, then you are in violation of the 
OGL itself.

Not for your own games (that aren't based on the SRD) and not for those 3 games.

And the SRD is where everything 
originally came from, at least for the core mechanics.


No, it's where all d20-based stuff comes from. It's not where everything comes from.

Your company, for example, has plenty of things that it could release without the SRD, Tim.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] PI status for works NOT in your section 15

On 1 Mar 2005 at 18:05, [EMAIL PROTECTED] wrote:

 In a message dated 3/1/2005 5:47:40 PM Eastern Standard Time, 
 [EMAIL PROTECTED] writes:
 
  Unless you are doing a product for Action! (which also uses the
  OGL - or any other system using the OGL, excepting the d20 System),
  it is impossible to do a product (using the d20 system) without
  listing the SRD in your section 15. That is the System Reference
  Document from which all other products using the (game engine
  developed by wotc) is a derivative of.
  
 
 You can easily do it.  Design your own game.  Or use FUDGE.  LowDie. 
 Action! 
  There are 3 open systems plus anything you design on your own that
  doesn't 
 require the SRD.
 

Go back and read the first sentence I wrote... hehe especially the part 
in the parenthesis.

  If you do not list that in your section 15, then you are in
  violation of the OGL itself.
 
 Not for your own games (that aren't based on the SRD) and not for
 those 3 games.
 
  And the SRD is where everything 
  originally came from, at least for the core mechanics.
 
 
 No, it's where all d20-based stuff comes from.  It's not where
 everything comes from.
 
 Your company, for example, has plenty of things that it could release
 without the SRD, Tim.

Please note that I did take into account that there are other systems 
using the OGL, and that I was excluding them from my comments.

Also, I have absolutely no idea what the situation would be if you were 
doing something for Action! with the OGL and wanted to use 
something declared by another company as PI (using the OGL for the 
d20 system), but my gut instinct says no, because both use the OGL, 
and thus both would be bound by it, no matter that you are using 
different system ref docs.

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




___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] PI status for works NOT in your section 15

In a message dated 3/1/2005 6:27:18 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Go back and read the first sentence I wrote... hehe especially the part 
in the parenthesis.


I saw it, but I only saw the words "Action System" and my brain blotted out the "or any other system" part. In my enthusiasm I thought of the other two systems that just went OGL. And missed the "or any other systems" part. My bad.

Lee
___
Ogf-l mailing list
Ogf-l@mail.opengamingfoundation.org
http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l

Re: [OGF-L] PI status for works NOT in your section 15