RE: [Ogf-l] PI declarations
I'm getting to this thread late, and this is the first mail I've received from the list, but after looking at the archives, I have to wonder why the authors of the OGL didn't foresee this problem. It seems hard to believe that someone can claim rights to material that is from the public domain via the OGL. I will admit that a literal reading of the definition of PI seems to indicate this is the case. However, I find it unlikely that any reasonable judge would allow that reading to stand. Allowing someone to claim rights to public domain content via the OGL is at best a dangerous precedent to set. At the same time, the Reformation clause could make this a moot point. Where public domain words/terms and settings could not be part of PI, it is arguable that interpretation of those terms or settings (the expression of the underlying ideas),could be protected as PI. Really, it seems that either the definition of PI would be changed to disallow claiming public domain materials as PI, or that the above change would be made. In all honesty, it seems like a good solution is to modify the OGL to make this exception. While this wouldn't necessarily solve the problem of content released under the previous version of the license, it would go a long way towards solving the problem in the future. In the present situation, it seems that the best bet is to use other spellings that are also derived from the public domain. While I find it highly doubtful that a court would enforce such an expansive reading of the definition of PI and the PI clause, if you truly wish to avoid risk, then avoid being a test case. In my opinion, the OGL could really benefit from some kind of an alternative dispute resolution clause. Litigation is expensive, and while setting a precedent is nifty and whatnot, a dispute of this nature could be resolved more effectively and inexpensively through arbitration. A good model would be the arbitration required by ICANN's UDRP. While it is not binding arbitration (given notice of filing a lawsuit within a specific timeframe), I've found that even non-binding arbitration can end a dispute without litigation. Consider it mini-litigation. Each side can see how their arguments play in Peoria. If a plaintiff sees that his case is not as good as he thought, he may not press forward with litigation. So yeah, just my rather long-winded thoughts. The short version: I think claiming public domain materials as PI is (or should be) bunk. To CYA and generally avoid hassle, go with the alternate spellings. Make sure that your descriptions of those same ideas aren't identical to your source. Matthew Hector, Esq. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ryan S. Dancey Sent: Sunday, August 14, 2005 3:24 PM To: ogf-l@mail.opengamingfoundation.org Subject: Re: [Ogf-l] PI declarations From: Spike Y Jones [EMAIL PROTECTED] Unfortunately, one of the two main readings of the PI terms of the OGL is that you, by borrowing *any* OGC from some other publisher, agree not to use *any* terms that he claims as PI, whether you could source those from elsewhere or not. Neither, I nor any lawyer I've ever dealt with who was conversent with the issues in detail, has ever accepted such an interpretation to be valid. Ryan ___ 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 declarations
The short version: I think claiming public domain materials as PI is (or should be) bunk. I dont think you are really getting tbe point and might be throwing the baby out with the bathwater, so to speak. There are times when you create an NPC and that NPC has a name that may derive from the public domain. You can, and should always be allowed to, PI the name of that NPC so long as doing so only means you are PI'ing that name as it relates to your particular incarnation of a fictional character with that name. The OGL allows this. The question is does it allow more. To disallow any PI'ing of names that may be from the public domain creates and equal though opposite problem. Clark ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] PI declarations
I dont think you are really getting tbe point and might be throwing the baby out with the bathwater, so to speak. There are times when you create an NPC and that NPC has a name that may derive from the public domain. You can, and should always be allowed to, PI the name of that NPC so long as doing so only means you are PI'ing that name as it relates to your particular incarnation of a fictional character with that name. The OGL allows this. The question is does it allow more. To disallow any PI'ing of names that may be from the public domain creates and equal though opposite problem. Ok, true, but is the most important part of that PI the NAME or the representation of the NPC? If we assume that you have an NPC named Brian Boru, is it the name or the way you characterize him that is the most important? If I created an NPC that behaved exactly like yours, had the same attributes, personality, motivations, etc., but just gave him a different name, haven't I abused your intellectual property more than if I just used the name Brian Boru, but made him 100% different than your NPC? While I would agree that a name which has acquired specific meaning within a campaign or game setting should be protectable, I can see some characters where this could be easily abused. Does the first person to create a game under the OGL that uses King Arthur and his Knights of The Round Table get dibs on those names and personae as long as he PIs them? It seems to me that what needs protection via PI is the underlying characterization of an NPC, not necessarily the name, if that name is derived from public domain sources. Clearly, a made-up or fanciful name should be PIable. But I would argue that allowing someone to PI a name from the public domain is a slippery slope. In the case of characters whose names derive from public domain, it seems to me that the only reasonable way to protect that intellectual property is to protect the expression behind the name, not the name itself. Matt -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Clark Peterson Sent: Sunday, August 14, 2005 11:18 PM To: ogf-l@mail.opengamingfoundation.org Subject: RE: [Ogf-l] PI declarations The short version: I think claiming public domain materials as PI is (or should be) bunk. I dont think you are really getting tbe point and might be throwing the baby out with the bathwater, so to speak. There are times when you create an NPC and that NPC has a name that may derive from the public domain. You can, and should always be allowed to, PI the name of that NPC so long as doing so only means you are PI'ing that name as it relates to your particular incarnation of a fictional character with that name. The OGL allows this. The question is does it allow more. To disallow any PI'ing of names that may be from the public domain creates and equal though opposite problem. Clark ___ 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
