Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
[EMAIL PROTECTED] wrote: However, there's nothing saying explicitly that PI has to be declared by anyone in particular. I was thinking that you had to be a party to the contract to declare PI, but then I asked myself this question: can a third party beneficiary declare PI without actually being a party to the contract or an assignee. Ugh! This discussion festered up in the wake of an observation about whether you are bound by the PI in the SRD if you don't quote OGC from the SRD and include it in your Section 15. Thoughts? Comments? Yeah, one: i'm not convinced you're bound by the PI declaration in the D20SRD even if you directly use material from it, since i'm not convinced it's a valid PI declaration. Nor am i convinced that it's an invalid PI declaration--though i lean more in that direction. But, on your specific question: If, as i am all-but-convinced, PI is defined as being a subset of OGC, then any PI declaration that does not include OGC is meaningless--saying all the stuff that looks like this and is part of OGC is PI; there is no OGC pretty much answers the question on its own. Just like the D20SRD PI declaration, in a fair world where how much lawyer you could afford didn't matter, a PI declaration in a work with no OGC (whether or not it has a WotC OGL attached) would be meaningless. That's IMHO, and IANAL. ___ 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?)
Chris Helton wrote: 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. It is generally agreed, that the definitions of PI and OGC in the WotC OGL are (1) what *can be* PI/OGC, not necessarily what is [except for the anything already declared OGC part], and (2) exemplary, not definitive. So, it's not saying that those things automatically *are* PI, but that they can be PI. Ryan, the guy behind the license, has said as much. That is certainly how most publishers are using it. Now, i agree with you, however, that that isn't what the license actually *says*. My honest opinion of the license? Read literally, it is self-contradictory, vague, and impossible to abide by as a result. Read in the spirit of the various clarifications offered by the WotC FAQ, Ryan Dancey, and various members of this list, and with generous acceptance of the intended use of the license, you get the current state of D20 System publishing. Only through consensual interpretation is teh license functional. It is, AFAIK, an unanswered question what happens if you get into court and both parties to a contract agree to treat a contract as saying one thing, when it actually says another. ___ 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?)
Chris Helton wrote: 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. So, let me see if i understand you rightly. You're saying that 1) anything that is (A) on the PI-example list and (B) declared as PI, is PI, even if the work is not governed by the WotC OGL 2) declaring a trademark or copyright is tantamount to declaring 3) therefore, if it has a copyright notice, and is on The List, it's PI, as far as anyone working under the WotC OGL is concerned Is that a reasonable restatement of your position? Would it make any difference to you if the guy behind the license told you that the list of things in the PI definiton is exemplary, not definitive--it's a list of things that *can be* PI, not a list of things that *are*? ___ 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 3/3/2005 3:56:31 AM Eastern Standard Time, [EMAIL PROTECTED] writes: It is generally agreed, that the definitions of PI and OGC in the WotC OGL are (1) what *can be* PI/OGC, not necessarily what is [except for the "anything already declared OGC" part], and (2) exemplary, not definitive. I agree. One thing that struck me, after I sent a message offlist was this. If the only type of PI which may be declared voluntarily are some handful of trademarks, then all the other stuff on the PI list would be non-voluntary. Anything that automatically occurs 100% of the time is, by definition, not voluntary. Thus all the stuff on the eligibility list (except certain types of trademarks) would ALWAYS be PI (since it would not be a declaration mechanism that determines what is or is not PI, but a list which is always true). You could then never declare that stuff as OGC without violating the license since some things would be both OGC and PI (and they are exclusive of each other). I have always held that the only way to read the clauses saying OGC and PI are exclusive of each other and the one line that says PI may appear in OGC is to assume the word "in" works like "a boat is in the ocean" where "in" means surrounded by (i.e., the boat is not the ocean and the ocean is not the boat, but the boat is in the ocean -- any other reading violates the exclusivity clauses). The only way that most of those things on the PI list can be declared OGC without being also PI is if there is a wholly volitional process which is put into place to separate those two as the owner of the copyrights and trademarks sees fit. Now, I will, 100% admit, that the language of the PI section is vague, at best, and is subject to Chris' interpretation when taken by itself. It just is. In the context of the whole license, however, it seems either that Chris' interpretation violates other parts of the license as well as possibly violating the intent of the license. So, either Chris is wrong, or, if the rules of legal construction of antecedents in a semicolon laden list say not that it is vague but that there is one and only one way to read the sentence, then I yield quite willingly to Chris' superior grammatical skills and declare that the license doesn't work as intended. Ryan, the guy behind the license, has said as much. That is certainly how most publishers are using it. Ryan's opinions matter less than industry usage. If WotC got in a scrap over a vague usage and the guy on the other side disagreed with them, contract construction says that vague sections are construed AGAINST the drafting party, particularly for contracts of adhesion. If Ryan's opinion is consistent with WotC's opinion, then contrary opinions would, unfortunately, hold more weight on that basis alone. However, industry usage is a public policy concern and a means of adjudicating intent of the signatories (I use "signatories" loosely hear to mean Contributors) to a contract. Read literally, it is self-contradictory, vague, and impossible to abide by as a result. I think there are ways to read it literally and still do away with MANY of the self-contradictory parts (see my reading above regarding OGC != PI and yet PI can be IN OGC). Rules of contractual construction say that you have to pick readings when considering vague sections that give effect to all the parts of the contract, if possible, without rendering them null and void. I think in that light, then a lot of the self-contradictory parts go away. Not all the vague parts go away, though. It is, AFAIK, an unanswered question what happens if you get into court and both parties to a contract agree to treat a contract as saying one thing, when it actually says another. If both parties agree to interpretations that go against the express language of the license their opinions _might_be_ largely ignored unless they are the only parties to a contract. If their interpretations go against industry standards but act as a point of agreement to help resolve the dispute between those two parties, then the adjudicating court can issue an unpublished decision (which has no precedential value at the appellate level) so that future courts can reconsider the issue anew. IANAL YMMV 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 3/3/2005 3:57:03 AM Eastern Standard Time, [EMAIL PROTECTED] writes: PI declaration in a work with no OGC (whether or not it has a WotC OGL attached) would be meaningless. That's IMHO, and IANAL. Certainly the person would NOT be a party to the contract. The license says that the Contributors give YOU a grant. If somebody is declaring PI without giving me a grant which I accept, then I have received no grant for my consideration, so my consideration is not due. No contract between that person and me. In that case, only if the intent of the contract were to allow for third party beneficiaries who are, in no way publishing under the OGL, would such PI declarations hold any weight. And I'm not sure that it is the intent of the parties using the license that third party beneficiaries who are not directly or indirectly involved in the OGL by publishing OGL products should be able to make PI declarations that bind OGL users worldwide. But, on your specific question: If, as i am all-but-convinced, PI is defined as being a subset of OGC, then any PI declaration that does not include OGC is meaningless 1) I am convinced that they meant PI to be a subset of OGC and botched the job with the exclusionary clauses (OGC excludes PI and vice versa, which disallows PI as being an OGC subset); and 2) Where PI merely unlicensed I would immediately agree with you that it is simply to mark what is not licensed, however, the restrictions on PI usage seem to be broader than merely marking unlicensed material 3) as I just posted, the only way PI and OGC can be wholly exclusive while having "PI in OGC" is if PI is the same type of "in OGC" as a boat can be "in" the ocean, where the boat and the ocean are mutually exclusive and where "in" means "surrounded by" instead of "part of". The one thing that clouds this whole bloody issue is the clause in the license that says it applies only to the OGC. Because the license even is scoped to cover compatibility declarations made "in conjuction with" OGL'd products, it seems to cover a heckuva lot more than just OGC. So, I've been forced to construe the term "applies" to mean "is a grant of". "This license IS A GRANT OF the OGC". Alternately, one can read the "applies" usage as effectively a truism. By covering OGC of course the license applies to OGC. It also could apply to PI, to compatibility declarations, to use of contributor credits (even if they are not PI), etc. Note that the term "only" does not appear in front of "applies" Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
