Re: [Ogf-l] Peculiar question...

[Joe Mucchiello]

At 02:12 PM 8/21/2005 -0400, David Bolack wrote:

but I don't want to "reinvent the wheel" for any that
are already designed, tested, and debugged both for my benefit and for
that of the customer


What makes a feat designed, tested and debugged? Not all campaigns/game 
systems have the same power level. If you wanted to reuse a feat, YOU have 
to decide if it is balanced within your system. No group of designers not 
working on your system can tell you what is or isn't correct. And the idea 
of debugging game material is odd since that implies it will be "processed" 
by a codified machine (CPU) such that the same inputs produce the same 
outputs. This isn't possible in a game system where there is a human arbitter.




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Re: [Ogf-l] Interesting comments about Creative Commons license

[Joe Mucchiello]

At 08:37 PM 7/19/2005 -0700, you wrote:

--- Doug Meerschaert <[EMAIL PROTECTED]> wrote:

> Hodgson, Matthew wrote:
> ...I suspect that Dvorak is trying to illicit from
> the public at large the answers he didn't get from the Creative Commons
> folk -- that is, a justification for CC's existance.

I doubt it.  If so, why all the histrionics?



He's been writing flamebait computer columns for a couple decades now. His 
job is to spark angry discussion to sell magazines. Always has been. 
There's nothing to see here.



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

[Joe Mucchiello]

At 10:33 PM 2/28/2005 -0500, [EMAIL PROTECTED] wrote:
If the legalese is too vague, consider this.  Tim, tomorrow you start a 
brand new company.  You release a product.  You don't use the OGL.  But 
you write inside the front cover, "I feel that I am allowed to declare all 
my characters and poses as Product Identity as that term is used under the 
OGL, but my work is not covered by the OGL."  First, is this binding over 
anyone, since nobody will have you in their Section 15.

I'd say, "no" instinctively.  But that's bringing in the color of license 
intent, industry usage, etc. (HUGE factors).  Those aside, the license 
doesn't explicitly state who can declare PI.  Weird, but unfortunately true.
First of all, section 2 says "No terms may be added to or subtracted from 
this License except as described by the License itself. No other terms or 
conditions may be applied to any Open Game Content distributed using this 
License." If the intent of you quote above is to restrict parties to the 
OGL, that would mean you are attempting to subtract from the License (by 
not becoming party to it) and thus what you do is outside the license.

Most times, third parties to contracts are explicitly named in the contract 
and what they can and cannot do is described in the contract: such as your 
beneficiary to life insurance example. In the OGL example, you have someone 
muscling into a contract and I think that would be considered void and 
meaningless in a court. It's like saying I can write a contract saying, 
"Lee and (the bank who holds his mortgage) must pay me $100 a month each to 
maintain the mortgage." Somehow, I doubt Lee or his mortgage company will 
abide by my contract and start sending me money.

Also consider: " "Product Identity" means product and product line names, 
...; and any other trademark or registered trademark clearly identified as 
Product identity by the owner of the Product Identity," Along with 
""Trademark" means the logos, names, mark, sign, motto, designs that are 
used by a Contributor to identify itself or its products or the associated 
products contributed to the Open Game License by the Contributor " This 
could mean that PI is a "trademark" and that "trademarks only apply to 
contributors to OGL. A stretch, but no more stretchy then the esoterica of 
this conversation really.

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Re: [Ogf-l] declaring pi (some quiries)

[Joe Mucchiello]

You are going to get conflicting advice. That's the nature of the OGL 
beast. IANAL. TINLA. Consult a lawyer rather than taking this advice as 
anything more than as much as you paid for this advice.

At 03:07 PM 11/29/2004 +, Keith Robinson wrote:
1) When declaring PI, should you be general (all names of people, places, 
events ...etc... are declared as being the Product Identity... etc) or 
should you be as specific as possible and name names?  Or a combination of 
the two?
Maybe (see answer 2 below).
2) If being specific, what happens if you forget to add something (as an 
oversight) and somebody else uses it in their own product (and potentially 
declares it as PI of their own)?
Tough luck.
3) How much should a company producing a campaign setting look to declare 
as PI?  For instance, if we have a significant city called Bigcityname, 
that gets mentioned several times or more in the setting, then it will 
more than likely be declared as PI.  But what about a village called, say, 
Littlevillagename, that simply happens to be on the map? Is there a value 
in declaring this (and similar) as PI?  We might, of course, decide to 
expand on Littlevillagename in a future product...
While I've been terse up to now, the thing you really have to think about 
is how much is you so called PI worth. Major NPCs, locations, and similar 
concepts are the right thing to PI. Incidental stuff is probably not worth 
(or even unique enough) to PI. (as we'll examine in 4 and 5 below).

But is littlevilagename really unique at all? Until you flesh it out, it's 
just a name. Is littlevillagename pivotal to expressing the uniqueness of 
your campaign? Somehow I doubt it. Could having someone else write material 
about littlevillagename (someone so lazy they couldn't call their village 
otherlittlevillagename) harm your campaign setting? Seriously consider 
these questions before cutting a width swath of PI namespace with obscure 
details.

4) Let's suppose I have a city called Brisbane in the setting.  I know, of 
course, that Brisbane is also a real place, so can I still declare it PI 
(that is, in relation to the campaign setting) or is that not possible (as 
it is, in fact, the name of a real place)?
You can PI your Brisbane as described in your work. Anyone can still write 
about Brisbane or even make up their own unique Brisbane.

5) Let's suppose I have a city called Chicago in the setting and I declare 
this as PI, because I've never heard of Chicago before and have no idea 
that it exists.  What would be the implications of this?
See Brisbane above.
6) What if I PI something that has already been declared as PI by someone 
else (but of which I am unaware of)?
This is an anti-FAQ. While it has been asked many times, there is no answer 
that is fully agreed upon. I'm of the belief that as long as your PI 
describes something unique and unrelated to the other PI, you're golden. 
Others feel differently. Read back posts for more details.

Many thanks in advance!
No problem. (Though, just my opinion mind you, but gratitous Y's in place 
of I's really turn me off.)
  Joe

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Re: [Ogf-l] Is the OGL Open Content?

[Joe Mucchiello]

At 08:34 PM 11/17/2004 -0600, Maggie Vining wrote:
I think the OGL is a
failure in terms of its ability to communicate the will of its users.  Look
through the archives and you will notice how many publishers still expect to
receive notice above and beyond what is called for in the license or who are
threatened by the notion of someone using their OGC!
And all the pubs who say they would like to receive notice know they are 
not entitled to such notice, they are just banking on fellowship and 
goodwill to carry the day. Same goes for reuse of OGC. This has nothing to 
do with how well the OGL communicates and more to do with a small, 
close-knit group of initial publishers who felt a certain comradery that 
has always existed historically in the RPG business. Friendly competition 
in a small market is normal especially one where everyone is constantly 
vying for the same talent pool.

I call your arguments strawmen attacks. Attack the language of the OGL 
because it is vague. We agree there. But that has no bearing on its degree 
of success or failure.

This will probably inspire a lot of people to chime in about how great they
think the OGL is.  I think it's great too.  But should it be imitated?  If
so, what parts? And why?
What is the need for imitation when the original is not a failure? While it 
would be nice to have a cleaner license, unless and until you can get WotC 
to agree to use this hypothetical license, it is just so much noise. Noise 
that you will also find those same archives you were pointing towards 
looking for failure. There are other open content licenses. In the RPG 
business they have not met with even a tenth the success the OGL has.

Don't take me wrong. If you have something new to add to the "Woe are we!!! 
The OGL is broken!" lament that has been going on since the beginning of 
this archive, please add away. But there is no reason to start on a false 
premise. The OGL isn't a failure. It's sole purpose in existence is to 
allow highly unequal rivals to share without added legal fees for the big 
guy. Mission accomplished.

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Re: [Ogf-l] Is the OGL Open Content?

[Joe Mucchiello]

At 12:08 PM 11/17/2004 -0600, Maggie Vining wrote:
I propose, however, that the OGL is not a successful license due to the 
degree misunderstanding, confusion, and misuse.  I know lot's of people 
benefit from the OGL, but that doesn't make it worthy of imitation without 
at least some careful consideration.
Most would say it is very successful given the number of products and 
companies it has spawned. It may not be a pristine example of ideal law, 
but it gets the job done.

  Joe
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Re: [Ogf-l] How much is "too much" for derivative works?

[Joe Mucchiello]

At 10:43 AM 9/11/2004 -0600, Ian Hewitt wrote:
"Ryan S. Dancey" <[EMAIL PROTECTED]> 
wrote:When considering "how much of a game system can be used without 
permission", the answer might soon be "virtually none". But if you are 
going to be respectful of copyright and intellectual property of others, 
that should have been the answer all along.

But I understood the beauty of the OGL is that one can use OGC from others 
with just the granted permission of the license (and blessing of the 
orginal authors). Is there anything in the small print that limits how 
much can be used? For example many of the companies that fully embrace the 
license release their entire books (with few exceptions for logo's and art 
and such) as OGC. Could not a third party legally reprint whole sections 
of those works in works of their own?
Ryan was talking about normal copyright without a license such as the OGL.

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Re: [Ogf-l] courtesy & OGC

[Joe Mucchiello]

At 05:48 PM 8/9/2004 -0500, Maggie Vining wrote:
That's isn't intuitive, though.  Why 6 months?  The license says nothing 
about waiting 6 months.  It's still a risky gamble on the part of the OGC 
producer to expect that waiting 6 months is a commonly accepted practice 
in an environment where anyone can reproduce OGC.   Users on my end are 
not going to be business people they will be parents, teachers and gamers 
sharing information where, once in a while, someone may come up with 
broadly useful material that gets distributed to the masses.  I ask this 
in a sincere manner: Is it my responsibility to communicate to my users 
that some companies may feel slighted if they use their OGC?  Until now I 
didn't see a need.
You do realize we are only talking about republishing the material, right? 
If you are talking about a teacher using the material in a handout to a few 
dozen students, what do we care? It's not like anyone expects the players 
of OGL-based RPGs to attach the OGL to their character sheets. Legally they 
probably should, but no one would ever press that case through a court.

I don't know why Lee put a time limit on it. There is no consensus about 
such a time limit. The point he was trying to make was, once the 
publisher's books have had a decent chance to go through the distribution 
channel, the material is dead at that point. Most OGL books (being niche 
RPG material) are printed only once and never reprinted. Thus any reuse 
after the first printing has had a chance to sell through the channel is 
actually a benefit to anyone who missed the original book.

But reuse at the gaming table or by teachers in classrooms has very little 
to do with this condition.

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Re: [Ogf-l] courtesy & OGC

[Joe Mucchiello]

At 04:19 PM 8/9/2004 -0500, Maggie Vining wrote:
I strongly encourage OGC producers to plan for people to use their OGC in
the way that is spelled out in the license and to not rely on your current
vision of  courtesy.
I don't expect anybody to tell me diddly-squat. Still, when they do, I send 
back a thanks for the heads up and that's about the end of it.

Contrary to old-time business school practice, most business people do not 
see business as a zero-sum equation. Just because I profit does not mean 
everyone else doesn't profit. Thus, it behooves you to be friendly to your 
fellow businessmen. There is nothing to loss from being courteous to other 
publishers. There may not be anything to gain either, but if there is, 
you'll be glad you chose the path of courtesy, won't you?

No one here is saying you MUST ask anybody anything. It's just common 
courtesy. Don't bristle at common courtesy. You want to just grunt and 
ignore us, fine. That won't stop us from informing you if we use your OGC. 
Trash my email if you must but don't begrudge me just trying to inform you 
of the travels of your OGC.

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Re: [Ogf-l] compiled list of D20SRD changes?

[Joe Mucchiello]

At 02:02 PM 8/3/2004 -0500, woodelf wrote:
At 5:52 +0100 8/2/04, <[EMAIL PROTECTED]> wrote:
From: "woodelf" <[EMAIL PROTECTED]>
 > Out of curiosity, is theirs updated for the latest release?
I don't know, I'm afraid. I just flagged this up *in case* it did what 
you need. It just
says 3.5. Is there more than one 3.5 SRD?  Perhaps you could contact The 
Other Game
Company and see if they have the information you want.
Yep. There're at *least* two versions of the "3.5" version of the D20SRD. 
[which is yet *another* naming convention problem with the D20SRD, even 
more problematic than the genericness of its name.] The damn thing needs 
some version controlling (since every version, from "gentleperson's 
agreement" through the current, has *exactly* the same name), or something 
(such as distinct names--there are at least 3 versions of the Sec.15 entry 
for it, after all).
I have three v3.5 directories. (Getting version control software actually 
might be a good idea.)
In the first one, the bulk of the files are dated 2003-07-02 or 03
In the second one, the files are dated 2003-10-22, 24 or 30 With 2 files 
dated in Sept and half the files unchanged from July
In the third one, the new files are dated 2004-04-02, 07, 09, 12 or 15, 
with 5 dated between Oct and April and 2/3s of the files unchanged from Oct 
or July.

And the three legal texts:
1) System Reference Document Copyright 2000-2003, Wizards of the Coast, 
Inc.; Authors Jonathan Tweet, Monte Cook, Skip Williams, Rich baker, Andy 
Collins, David noonan, Rich Redman, Bruce R. Cordell, based on original 
material by E. Gary Gygax and Dave Arneson.

2) System Reference Document Copyright 2000-2003, Wizards of the Coast, 
Inc.; Authors Jonathan Tweet, Monte Cook, Skip Williams, Rich Baker, Andy 
Collins, David Noonan, Rich Redman, Bruce R. Cordell, John D. Rateliff, 
Thomas Reid, James Wyatt, based on original material by E. Gary Gygax and 
Dave Arneson.

3) System Reference Document Copyright 2000-2003, Wizards of the Coast, 
Inc.; Authors Jonathan Tweet, Monte Cook, Skip Williams, Rich Baker, Andy 
Collins, David Noonan, Rich Redman, Bruce R. Cordell, John D. Rateliff, 
Thomas Reid, James Wyatt, based on original material by E. Gary Gygax and 
Dave Arneson.

My #2 may be erroneous. I notice now it is dated 2004-01-14, almost 2 
months after the release of 3.5v2.

  Joe
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Re: [Ogf-l] One or many licensors?

[Joe Mucchiello]

At 07:21 PM 8/1/2004 -0400, [EMAIL PROTECTED] wrote:
Replying to two folks in one post --
[EMAIL PROTECTED] writes:
<>
I wholly disagree.  I think that's an exactly wrong interpretation.
You are correct. I was replying to the PI question but then broadened my 
example beyond PI erroneously. I was talking about the unknown of C caring 
about A's PI.

Thanks for catching that,
  Joe
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Re: [Ogf-l] One or many licensors?

[Joe Mucchiello]

At 04:00 PM 7/31/2004 +0200, Peter Brink wrote:
Having searched the archives of OGF-L and not found any clear answer
to a question of mine I ask it here. It should be noted that my
archive of this list goes back to early 2002, and I've seen numerous
references to issues which seem to have been discussed prior to that,
so this may have been dealt with a long time ago.
My question is simply, does a licensee have a contractual relation
with all contributors listed in an OGL's section 15 or only with the
licensor which's work the licensee has made use of?
Put in a different way: I'm wondering how the list folk view the OGL
license chain.
I think the common assumption is the set of individual contracts. B 
licenses from A, C licenses from B, A and C have no contractual agreements 
between them (regard the OGL).

The theory here is the same as the debate on PI. If author X says "XOT" is 
PI. Is it PI for all users of the OGL or just immediate sublicensees. Most 
prefer the interpretation that only sublicensees are required to conform to 
X's PI declaration. But the language of the OGL is not explicit in either 
of these cases.

Without a court ruling, the correct answer to your question is "Maybe". But 
perhaps since common interpretation is that the license is not transitive 
perhaps the court would choose to answer your question as "No".

IANAL. TINLA. YMMV. yadda yadda yadda. (or should that just be YYY? :-)
  Joe
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Re: Checking with OGC sources (Was: [Ogf-l] Notice of OGL Correction: Grim Tales)

[Joe Mucchiello]

At 05:50 PM 7/25/2004 -0400, Damian wrote:
On Sunday 25 July 2004 07:57 am, [EMAIL PROTECTED] wrote:
> Maybe publishers should be required to give 30 days notice of intent* to
> anyone in the section 15
Have you _seen_ the Section 15s of some of the compilation books?  They 
run to
multiple pages of small type.
Not to mention everyone would have to send notice to WotC for everything 
since they are listed in all Section 15. (Even if you aren't using the SRD, 
the OGL itself is copyrighted in Section 15.) There's no reason they would 
be exempt from this.

  Joe
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Re: Checking with OGC sources (Was: [Ogf-l] Notice of OGL Correction: Grim Tales)

[Joe Mucchiello]

At 12:57 PM 7/25/2004 +0100, [EMAIL PROTECTED] wrote:
What do you think? Surely this sort of change would be benificial to all 
publishers?
Not important enough to care. If you are going to go through the trouble of 
changing the OGL, there are more important things to fix. (How do you own 
PI? Is PI an eraser or hot list? Is PI transitive? Clearer requirements for 
identifying OGC to eliminate crippled OGC. Identifying OGC in compiled 
code. Being able to identify pre-existing OGC in your work and giving 
better credit than just a section 15 entry. Etc.)

Perhaps one of the roles OGC listing websites, can fill is to keep an 
online archive of
section 15 updates. An "Omega OGL errata".
What OGC listing websites? And even if they existed, how do you know they 
have the correct section 15?

  Joe
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RE: [Ogf-l] "Stealing" OGC

[Joe Mucchiello]

At 11:15 AM 5/31/2004 -0400, Martin L. Shoemaker wrote:
Allow Doug some hyperbole. Then re-ask his question as "five years from
now". That IS gonna happen, or at least is statistically likely: some
company that has written some useful, desirable OGC will be out of existence
five years from now, and asking for permission or clarification will be
extremely difficult.
Oh, well.
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Re: [Ogf-l] "Stealing" OGC

[Joe Mucchiello]

At 10:46 AM 5/31/2004 -0400, Doug Meerschaert wrote:
At present it doesn't matter, as I have yet to meet a company that WON'T 
honestly answer questions and even give special permission--but what about 
fifty years from now, when the company that wrote a popular game book is 
simply gone?
(Milk flowing from nose.)
Is that really a concern? I'm a staunch "clear OGC or nothing" person but 
please, don't talk about OGC reuse 50 years from now. That's just over the top.

  Joe
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Re: [Ogf-l] Creating A World For Release

[Joe Mucchiello]

At 10:31 PM 5/30/2004 -0500, Shane Kelly wrote:
- Original Message -
From: "Clark Peterson" <[EMAIL PROTECTED]>
> I'm with Joe on this. Though I would say 1000 copies
> of a PDF is either luck or your name is Monte. And
> nobody is that lucky right now. So if your names isnt
> Monte, dont even think about 1000 copies of a PDF. If
> you hit 200 copies you will be doing great.
Heck, even 50 copies at 20.00 apiece would be good.  Then
you could try breaking into print with modules and such.  It
seems to me that Sword&Sorcery did that with Scarred Lands,
didn't they?
At $20, 10-15 sales is doing good. It being a setting is a strike against 
it. That price point is probably way too high for a successful PDF release. 
YMMV. You really should, however, move this kind of conversation to a board 
that discussing publishing in general or epublishing specifically as this 
mailing list is specifically about the OGL and open gaming in general.

  Joe
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Re: [Ogf-l] Creating A World For Release

[Joe Mucchiello]

At 10:21 PM 5/30/2004 -0400, Doug Meerschaert wrote:
My second question: It is obviously much easier to publish in pdf and 
move to print if sales and interest warrants. What kind of sales do even 
the best pdf products (developed by independent or new writers) generate?
Not that many.  200 is good.  1000 is incredible.
I would call 200 amazing and 1000 luck. And I don't think there is a 
"setting" PDF with 200 sales. RPGNow only has like a dozen items with sales 
over 500 or so. Unless I'm out of touch with sales numbers. Can't say I've 
been following it closely.

  Joe
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Re: [Ogf-l] How to revise the OGL

[Joe Mucchiello]

At 10:27 AM 4/26/2004 -0400, [EMAIL PROTECTED] wrote:
In a message dated 4/26/2004 12:15:20 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:

About the only thing it may offer is an
interpretation of the OGL that may jeopardize those thousands of dollars.
In fact, such a license, if widely spread may cause Hasbro to halt future
OGC releases.


I don't know that it would per se jeopardize thousands of dollars if they 
didn't use the license.  The interpretation would be wholly non-binding on 
parties not using such a license.
I said it would jeopardize that money if they DO use the license. But be 
that as it may

Regarding parties who don't use a clarifying license, a judge would likely 
listen to briefs, common industry practices, etc.
And one of those amicus briefs would be the clarifying license. The more 
people signed onto using the clarifying license, the more weight it carries 
in a court. So whether I use the license or not, it's existence can 
jeopardize my holdings in a court.

Clarification: I'm neither for nor against such a license. I'm just saying 
why I feel it will be hard to get the big publishers on board. This 
meta-license gives them nothing they cannot achieve by picking up a phone 
or sending an email. And OTOH it will involve an interpretation of the OGL 
that some percentage of them will feel disadvantages them severely and some 
other percentage feels disadvantages them somewhat. As a thought exercise, 
it is an interesting idea. I just don't see it becoming a a reality with 
major publisher buy in.

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Re: [Ogf-l] How to revise the OGL

[Joe Mucchiello]

At 09:51 PM 4/25/2004 -0400, Tavis Allison wrote:
While it's difficult to predict what outcome this might have on sales of UA
and whether this was an expected result, I think it is possible that even
Hasbro might eventually want to lead users back to more sources of OGC than
just the core books. Their reliance on immediate sales through retail
channels, and the power of the D&D logo, might mean that Hasbro's sales
suffer proportionately less harm when the OGL conceals the source of their
OGC reprinted in other works. However, Hasbro's enormous popularity means
that their books are almost the only ones that pirates have been inspired to
not only scan and trade but also OCR; a meta-license would allow them to
fight these illicit electronic texts with official ones designed to drive
sales back to the source.
There are a few problems with this line of reasoning. First, if they really 
wanted to drive sales of UA they would attach text to the d20 license 
allowing users to use the UA trademark. That they haven't done this 
indicates that they aren't even slightly interested in such source labelling.

Second, the meta-license will mean diddly-squat to people pirating OCR'd 
scans of the PHB or UA. Most OGL issues only matter to publishers. Hasbro 
doesn't need to make their OGC offerings any more attractive to publishers. 
Publishers flock to Hasbro OGC without such requirements.

Third, you can already get permission to include source labelling in your 
works by asking the owner's of the up level OGC for permission. Most 
companies are free and easy with granting this permission. So other than 
trying to put a new noose around publisher's necks (to follow another 
license) what does this offer to people whom have already put thousands of 
dollars on the line? Having made large money commitments to the OGL, what 
more does this offer? About the only thing it may offer is an 
interpretation of the OGL that may jeopardize those thousands of dollars. 
In fact, such a license, if widely spread may cause Hasbro to halt future 
OGC releases. That certainly jeopardizes lots of invested money in the 
status quo. Nothing in any current plan (for a meta-license or consortium 
of true believers) seems to benefit all publishers.

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Re: [Ogf-l] Re: Releasing a new system under the OGL

[Joe Mucchiello]

At 11:10 AM 4/10/2004 -0500, woodelf wrote:
At 7:31 -0400 4/10/04, Joe Mucchiello wrote:
At 11:54 AM 4/10/2004 +0200, Peter Brink wrote:

Someone making an offer with terms that are unlawful has to accept the
risk that those terms are ignored by the other party. It's as simple
as that. The rule is simple (in Sweden): one cannot trade a benefit
against a restriction which is unlawful. The restriction is simply
removed and the benefit remains. If I accept the offer I'm not doing
so in bad faith - I'm accepting the deal as it stands according to the
law.
That is stupid. You are saying that in Sweden I can end up in a contract 
where the other party gets a benefit and I get no benefit. That is a 
strange concept. Where is the quid pro quo of this arrangement? I would 
think the court would just terminate the license.
I dunno if you can nullify an entire contract that way, but you certainly 
can nullify clauses in the US. Frex, there are some local ordinances to 
protect renters. One of those, at least, explicitly overrules leases, even 
if both parties take the lease on good faith, both parties are happy with 
it, and neither party knows about the ordinance. Heck, as i understand it, 
the renter and landlord could add a clause to the effect of "The 
undersigned are aware that [blahblahblah ordinance] requires the landlord 
to give the renter no less than 24hrs notice before entering the premises, 
and agree to overrule this to only 12hrs." and it'd *still* be 24hrs 
notice required. The law says that nothing in the lease can change it to 
less than 24hrs. And i believe it's even been challenged and held up in 
court [not sure on that last part, however].  In any case, the point is, 
it certainly seems possible for legislation to deem certain elements of a 
contract invalid in the US, but i have no idea what would happen if large 
portions of a contract were nullified in this way.
But in the case of renter/rentee, there is still the monetary consideration 
vs roof over my head consideration. Thus both parties receive SOME benefit 
from the contract. The clause we're talking about removing is the only 
benefit the source licensor gets out of the OGL (PI and Trademark 
restrictions). If the reformation of the OGL Peter seems to think might 
happen gives the OGC owner nothing in return for granting free world-wide 
use of the material under the license then the license no longer grant 
consideration to the owner of the OGC and thus is not a valid contract. 
(Remember the owner we are discussing in this thread is releasing something 
completely new to OGC and not a single word of it is derived from some 
other OGC work.) In the normal case, you use the OGL to gain access to the 
upstream OGC. If you are the source licensor where is your consideration if 
the PI and Trademark restriction clauses are void? I'm disagreeing with 
Peter's assertion that the downstream users of the material get a free ride 
and source licensor gets nothing.

  Joe

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Re: [Ogf-l] Re: Releasing a new system under the OGL

[Joe Mucchiello]

At 11:54 AM 4/10/2004 +0200, Peter Brink wrote:
On Friday, April 09, 2004 11:28 PM Joe Mucchiello wrote:

> > Yes, and as long as those limitations are fair and reasonable the
> > deal is fine, but as it happens some of the provisions of OGL are
> > not.
>
> Then don't enter the deal. Deals do not have to be fair and
> reasonable, they need only be equitable. (That quid pro quo thing)
> If you don't find the offer equitable, then you should not accept
> the deal. Accepting the offer and then complaining about the terms
> of the offer is a bad faith acceptance of the offer.
Someone making an offer with terms that are unlawful has to accept the
risk that those terms are ignored by the other party. It's as simple
as that. The rule is simple (in Sweden): one cannot trade a benefit
against a restriction which is unlawful. The restriction is simply
removed and the benefit remains. If I accept the offer I'm not doing
so in bad faith - I'm accepting the deal as it stands according to the
law.
That is stupid. You are saying that in Sweden I can end up in a contract 
where the other party gets a benefit and I get no benefit. That is a 
strange concept. Where is the quid pro quo of this arrangement? I would 
think the court would just terminate the license.

Also, if your interpretation is correct than it is advantageous to be a 
user of the OGL. Where is the minefield?

At 11:53 AM 4/10/2004 +0200, Peter Brink wrote:
On Friday, April 09, 2004 10:45 PM Lizard wrote:
> According to this logic, anyone in England could publish Star Wars
> novels and not fear lawsuits. That no one has done so implies that,
> in fact, you can't -- the lure of profit would be too great for
> anyone to resist if it were legal. (Likewise, there would be
> hundreds of publishers producing 'Dr. Who' novels, games, comics,
> and so on. Marvel and DC would see all of their heroes in all-new
> adventures created by local talent. Etc, etc, etc.)
>
> I think you are exaggerating the differences between European and
> American law; the close economic and cultural ties between the
> nations means that such laws are very heavily 'harmonized'.
Sorry, but this is a quite correct interpretation of the situation in
the EU. You do not have to ask anyone for permission to create a work
nor do you need to ask for permission to publish your work. If the
work is a "derivative" work then you may later face legal troubles
though.
Huh? There is no difference between this and what you "can" do in the US. 
You are always "allowed" to break the law. You also can walk into a 
convenience store with a gun, point at the clerk and say "give me all your 
money". Like releasing a derivative work, you should not do this. I think 
Lizard and I are working under the assumption that you will not do 
something that you know will get you sued in a second. Thus from our point 
of view you CANNOT release derivative works without permission of the 
original owner.

Perhaps this is to blame on English's lack of a subjunctive clause. :-)

  Joe

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re[6]: [Ogf-l] Re: Releasing a new system under the OGL

[Joe Mucchiello]

At 05:14 PM 4/9/2004 -0500, woodelf wrote:
Let's take a random D20 System book, released under the WotC OGL, off the 
shelf. Now, clearly, i can abide by the terms of the WotC OGL if i want to 
reuse the material, right? But what if i don't like those terms. Am i 
forbidden from reusing the material according to the bounds/terms of 
standard copyright (i.e., according to Fair Use, plus reuse of any 
material in the book that can't be copyrighted)? If not, why not?
3. Offer and Acceptance: By Using the Open Game Content You indicate Your 
acceptance of the terms of this License.

Now, granted you cannot be forced to accept a license but likewise you do 
not have the right to just use the material normally. So one could 
interpret any use of OGC declared material wherein the OGL is also 
contained as an obligation to read the terms of the license and abide by 
them, or ELSE not use the material. In this regard it becomes similar to 
the shrink wrap licenses found in software. The difference here is you 
"could" see the license before using the material the question is are you 
obligated to look on back page of the book for the OGL?

  Joe

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Re: [Ogf-l] Re: Releasing a new system under the OGL

[Joe Mucchiello]

At 09:46 PM 4/9/2004 +0200, Peter Brink wrote:
NOTE to the reader, when I below make references to Intellectual
Property laws (or any other legal matter) I'm referring to the laws of
Sweden and the EU, please keep that in mind. The laws of the US may
differ.
On Friday, April 09, 2004 7:20 PM Joe Mucchiello wrote:
> This attitude amazes me. immoral? No, what is immoral is being
> granted a gift and asking for more.
You are not granted a gift in OGL, you pay for the right to use OGC
with the provisions laid out in article 7. OGL is more like a trade
deal.
No, it is a gift because they do not have to give you the material at all. 
Don't like the word gift. I'll change it. The OGL is an offer. You don't 
like the terms, don't accept the offer.

> Without the OGL there would be no OGC or PI.

There are several licenses that can be used to create Open Content,
for example GPL, OOGL and the CC licenses. OGL is not necessarily the
best of these - it is certainly the only one who makes onerous demands
on the licensees.
Irrelevant. This is the offer being given. Take it or leave it. Or 
negotiate a separate contract with WotC.

> You would not be able to make use of that other person's content at
> all except under the highly nebulas "fair use" provisions of the
> various countries' copyright laws. The OGL is a minefield? No,
> "fair use" is a minefield.
I would say that the "fair use" provisions of the copyright laws in
the EU are easier to understand and thus in a way safer than the US
fair-use doctrine. They are in general less flexible than the fair-use
rules but I would never trade the rights I have according to the
Swedish copyright act for the US fair-use doctrine.
And you are not being asked to. You are being asked to trade them for the 
provisions laid out in the OGL.

The idea of Open Content is to create a pool of shared material which
in almost all respects acts as if it were public domain but where the
original copyright holder retains some of his rights. None of the
restrictions imposed on the licensee by OGL are necessary to create
such a pool of shared material.
Except that the idea of WotC's OGL is to sell Player's Handbooks. Again if 
you do not like the terms, do not accept the offer. Just because a pool of 
shared material is created by the OGL does not mean that this is its sole 
purpose.

Now this argument amazes me! Claiming ownership of things you don't
and can't own is not immoral?  An element of a literary work which
falls outside the copyrightable subject matter belongs to all of us -
it is part of the public domain.
You ignored my examples. People claim ownership of ideas in NDAs all the 
time. Do you rage against NDAs as well? They are far more common in real 
life than a silly license agreement in the RPG market.

> You do not have a moral right to create derivative works based on
> someone else's writing.
It is only in the US that you may not create derivate works without
asking for permission, in most of Europe you can do so freely. In most
EU copyright laws a derivate work is called "an adaptation", you are
free to publish such works too, but if you want to avoid possible
legal troubles you better ask for permission to publish before doing
so. Note - the original author have no right to any copyrights in an
adaptation.
I find this hard to believe. As Lizard put it, where are the Star Wars 
movies and Harry Potter novels freely "adapted" from the source material? 
They don't exist because derivative works laws in the EU are not that 
different from US laws.

> The OGL grants you that right with certain limitations. If you
> don't like the limitations don't try to take advantage of the right
> being offered.
Yes, and as long as those limitations are fair and reasonable the deal
is fine, but as it happens some of the provisions of OGL are not.
Then don't enter the deal. Deals do not have to be fair and reasonable, 
they need only be equitable. (That quid pro quo thing) If you don't find 
the offer equitable, then you should not accept the deal. Accepting the 
offer and then complaining about the terms of the offer is a bad faith 
acceptance of the offer.

  Joe

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Re: [Ogf-l] Re: Releasing a new system under the OGL

[Joe Mucchiello]

At 04:56 PM 4/9/2004 +0200, Peter Brink wrote:
Do note that I didn't say that the idea of PI *as such* is immoral,
but rather that the idea of allowing one party in a contract to make a
claim of ownership to entities for which one cannot claim ownership
(according to IP laws), is immoral.  It is like stealing from the
public domain. What cannot be copyrighted (or otherwise protected) is
free for anyone to use. Trying to restrict the other party's use of
such entities in a adhesion contract[1] is in my opinion immoral
because it is unfair, unreasonable and not the least - unlawful (in
Sweden). In most cases such provisions in a signed contact would be
unlawful as well.
This attitude amazes me. immoral? No, what is immoral is being granted a 
gift and asking for more. Without the OGL there would be no OGC or PI. You 
would not be able to make use of that other person's content at all except 
under the highly nebulas "fair use" provisions of the various countries' 
copyright laws. The OGL is a minefield? No, "fair use" is a minefield.

How is PI unfair? Unfair is not having any access to the material at all. 
Unreasonable? Hey, you can ask for permission to use the PI. The OGL has a 
specific provision granting this exception. Unlawful? I'm sure that actual 
adhesion contracts (even in Sweden) are only unlawful where there is no 
quid pro quo. I think getting access to the OGC is an excellent benefit 
that giving up the PI is an equal exchange.

You say allowing someone to "own" something in a contract they aren't 
entitled to own is immoral? So Non-Disclosure Agreements are by definition 
immoral since they usually assert that some idea is owned by one entity and 
the other entity is only allowed to learn the idea if they promise not to 
tell anyone about it. Don't adoption contracts allow someone to own a 
child? (Granted that's extremely off-topic. My point is owning something 
normal not allowed to owned in a contract is not immoral.)

You do not have a moral right to create derivative works based on someone 
else's writing. The OGL grants you that right with certain limitations. If 
you don't like the limitations don't try to take advantage of the right 
being offered.

  Joe

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Re: [Ogf-l] How to go about releasing a system under the OGL

[Joe Mucchiello]

At 11:21 AM 4/9/2004 +0200, Peter Brink wrote:
On Thursday, April 08, 2004 6:25 PM Lizard wrote:
> Grant Erswell wrote:
> > So has anyone encountered any problems with the OGL in regards
> >to the UK?
> Give how much stuff Mongoose released under it, if anyone would
> have, they would -- and, to my knowledge, they haven't. So there
> you go. :)
There is a major difference though; Mongoose is a Licensee of OGC as
well as being a Licensor. Grant will only be a Licensor. When he
issues a license to someone else to use his work under the OGL he will
do so under UK law. Will the license issued by Grant mean the same
thing as an OGL issued in the US? It might but also it might not. When
Using OGC under the OGL the same laws need not apply as when one
issues an OGL license.
Um, there is actually no difference. WotC has offices in the UK don't they? 
(If they don't Hasbro certainly does) As such, when Mongoose uses the OGL, 
WotC is issuing the license in the UK to a UK licensee. Nowhere in the OGL 
does it state "in disputes, the laws of the United States will be used blah 
blah blah" that one finds in most contracts.

The terms in article
2 however seems to apply to both the Licensee and the Licensor, which
would mean that if Grant wants to issue an OGL he must use the exact
wording of one of the authorized editions of OGL - even if he knew
that one or more provisions where unenforceable in the UK.
I can't speak to legality of various OGL clauses in the EU but I can be 
quite certain that WotC, having offices in one or more EU member countries, 
is subject to EU law when an EU business uses their License. This is no 
different from when Grant is the licensor.

Also, licenses and contracts always contain provisions that are 
unenforceable. The "enforceability" of a clause in a contract only matters 
when the contract is disputed in court, or so I thought. If no one 
complains about this unenforceable term, what does it matter?

Besides, section 14 says the license can keep on sailing once amended by a 
court.

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re[3]: [Ogf-l] Re: Releasing a new system under the OGL

[Joe Mucchiello]

At 12:26 PM 4/8/2004 +0100, Mike Dymond wrote:
Hi

 >>  1) we'll be releasing Four Colors al Fresco simultaneously under at
 >>  least two ogls: the OOGL, and the WotC OGL. Best of both worlds:
 >>  real-world functional reuseability, and supporting the "better"
 >>  license.
According to the OGL you are not allowed to do this:

Para 2
"No other terms or conditions may be applied to any Open Game Content 
distributed using this License."
No, as the copyright holder, he can release anything he creates with any 
number of licenses. You are assuming that his product is derived from other 
OGL content. I don't think it is. It is, rather, a standalone game with its 
own game mechanics. (Of course, I'm assuming his not using the SRD.)

  Joe

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RE: [Ogf-l] How to go about releasing a system under the OGL

[Joe Mucchiello]

That's a limitation on the customer checking out. Not on the vendor 
offering a product. Yes, perhaps your sales are impacted by pricing below 
the checkout minimum but that doesn't mean you can't offer a product below 
that minimum. (I do think the minimum products price is 50 cents.)

  Joe

At 12:06 PM 4/7/2004 -0500, Gillispie, Bryan W. wrote:
But you have tohave a $5 min order to actually buy anything.

Bryan

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Fred
Sent: Wednesday, April 07, 2004 9:24 AM
To: [EMAIL PROTECTED]
Subject: Re: [Ogf-l] How to go about releasing a system under the OGL
--- Grant Erswell <[EMAIL PROTECTED]> wrote:
> RPGNow requires products with prices, and
> usually
> requires that price to be $5 or more.
There are LOTS of products on RPGnow with prices below $5.


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Re: [Ogf-l] Advantages of a new version of the OGL - white out vsforbidden t...

[Joe Mucchiello]

At 06:05 AM 3/5/2004 -0500, [EMAIL PROTECTED] wrote:
On Thu, 4 Mar 2004 [EMAIL PROTECTED] wrote:

> I'm not too up on when the Wizard of Oz was written so perhaps the
> copyright had run out when they made the Zardos.
Zardoz (with a "z", not an "s") was written in 1972. The first Wizard
of Oz book is copyright 1900. I don't know when Baum died or what the
copyright laws were back in '72 though.
Regardless, names cannot be copyrighted.  A trademark on Wizard of Oz would 
only stop Zardos if people could confuse Zardos with the wonderful wizard 
he was.

That being said, I'm sure a certain bottling company would raise its 
eyebrows at you if you created a board game called Mocha Moola (the coffee 
making money game). But I doubt they could stop you (disregarding the burn 
your cash reserves with a long discovery process method) unless you market 
the game in a red box with a white swoopy stripe.

> This begs a new question: How long does any protection provided by
> the OGL last? If the 3.0 SRD drops out of copyright at some point
> (followed shortly by a lot of the early products) there could be
> enough role playing material in the public domain to allow people to
> just use that stuff *as if* it were copyleft.
I doubt many of us will still be alive when the 3.0 SRD drops out of
copyright.
I doubt the cockroaches will out-survive the copyright on it.

  Joe

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Re: [Ogf-l] PI Spell Names

[Joe Mucchiello]

At 05:38 AM 2/24/2004 +, [EMAIL PROTECTED] wrote:
I did see what Clark said then and, as I didn't *GET* the reasoning for 
other people still
doing the same thing a long time after the R&R, I asked again. However, 
I'm not going to
push the question any more as it just sounds like I'm bashing Clark if I 
do that (and I
certainly didn't intend that).
Just because Clark has said he wouldn't do what he did in R&R now doesn't 
mean that others don't look at R&R now and use it as an example of how to 
do PI now. Is this a plausible explanation for others doing PI declaration 
in the same style as R&R?

A lot of PI and OGC declarations out there are copycat'ed from other PI and 
OGC declarations that people figure "hey, it was good enough for this other 
guy." That doesn't mean this is a good practice.

When you see a PI declaration that doesn't make sense, you should either 
ask the publisher if that was what they meant, or just avoid the content. 
Either they made a mistake and will fix it, or they don't care that the 
content if crippled (whether crippling was their initial intention) and 
they don't want to go through the trouble of fixing it. The only way to 
find out for sure is to ask, politely: "Did you really mean to PI 
such-and-such in your product X? I really think it is derivative of OGC 
from product Z. If you did mean to, could I have a license to use it in my 
product Y?"

  Joe

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Re: [Ogf-l] Derivative Content and PI

[Joe Mucchiello]

At 06:24 AM 2/21/2004 +, [EMAIL PROTECTED] wrote:
IANAL (I am not a lawyer) & IANAUSC (I am not a US citizen) so don't think 
I can be held responsible for breaking any US law if I am not in the USA. ;-)
Look up Dmitry Sklyarov at a websearch site. He is a Russian computer 
programmer who was arrested in the US for violating a US law (DMCA) with 
work created entirely in Russia. So, while I doubt the OGL is on the 
Attorney General's radar, it is not unprecedented what you say.

Does this mean that the OGL is legally different in EVERY country in the 
world and that if WOTC or anyone else didn't like the answer they got in 
one court they could just go to another country (or perhaps even US state) 
and start the whole thing again?
Sure, in countries with weak laws for copyright or contracts you can run 
roughshod all over the OGL. IP owners just deal with this.

Regarding different jurisdictions: Generally you can't start all over in 
another jurisdiction unless you start with another opponent. The suit would 
have to involve a new target. The object here would be to get a conflicting 
decision. Then you can appeal the original case based on the second case. 
However, odds are stacked against you in the second case since the judge(s) 
can use the first case as precedent. This makes getting the opposite 
decision improbable, but not impossible.

I2ANAL and I will echo the sentiment that if you have legal questions you 
really should see an attorney.

  Joe

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Re: [Ogf-l] "compatible" claims

[Joe Mucchiello]

At 04:27 AM 2/1/2004 -0500, jdomsalla wrote:
In the Introduction, after the part where I hail and praise open gaming, I
intend to include a small section where I indicate incompatibility issues
with other gaming products *will likely* occur.  I wish to indicate the
following...
I think you are overly worried about something most gamers do 
automatically. When looking at a new sourcebook for reuse in another 
setting, they automatically look to see what parts of it will need tweaking.

Also, 99% of the gaming public don't care about the OGL, publisher reuse, 
etc. Don't spin your wheels for 1% of your target market more than you have to.

1. That the material is focused on a *specific* world (one of less magic and
super-heroics then current gaming trends) and thus is balanced accordingly.
2. That the material is not as hard-coded for mechanical balance as most
other products (i.e., room is made for the GM to "play around" with things
on the RP-side of the game, especially for things like gaining a Prestige
Class, that supercede mechanical considerations).
3. That some rules imported from contributing sources (i.e., OGL-published
materials) have been slightly changed.
4. That some rules imported from contributing sources ("
") have been dramatically changed.
5. That unless a rule presented by QTGG from any other source is *exactly*
what the re-user wants, he's better off obtaining the original source to see
how it functions in the "base line" of current gaming trends (i.e., most
d20STL games and settings).
While not quite sure how I intend to word it, I do have a desire to express
this information in a simple, clean fashion without ticking off WotC.
I believe the 5 bullet points listed above is probably as succinct and 
accurate as you will get. Why not just use what you wrote above as is?

Of course, I can't state in the material itself
where the individual components came from specifically (Product Names being
PI),
Have you sent email to the publishers of your borrowed material and asked 
for permission? Read the section restricting claims of compatibility 
carefully. That section voids itself if you gain permission to indicate 
compatibility.

 although I do intend to invite folks to ask via email or our message
boards.
The ban on indicating compatibility extends to all marketing materials. You 
cannot answer folks questions about sources outside of the document without 
coming close breech.

So, I guess what I'm saying is that, in addition to a (presumed) privilage
of stating incompatibility, I also see myself as having something of an
obligation to do so as well, since not doing so *could* get folks mad at me
because they ported something that ruined their game.
And the 5 bullet points at the beginning of your email do that quite nicely 
and never once indicate compatibility or incompatibility with any specific 
product. Mission accomplished.

  Joe

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Re: [Ogf-l] SRD: smokestick, sunrod and tindertwig prices

[Joe Mucchiello]

At 06:32 AM 12/16/2003 -0500, Paul W. King wrote:
I recently noticed that these items are missing prices in the SRD.  They are
described in SRDEquipmentI.rtf, just do not have price listings.
However, they do have price listings in the RSRD in Equipment.rtf.

So, was this an oversight?
Most likely. If not, then what was it?

  Joe

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Re: [Ogf-l] PI in summary...

[Joe Mucchiello]

At 11:03 AM 10/24/2003 -0400, [EMAIL PROTECTED] wrote:
That's why I said that if there was a third way to view WotC's PI 
declaration (I listed only two), that third way automatically seems to 
implicate WotC in failing to clearly indicate their PI.
What requirement that you clearly indicate your PI? Only OGC must be 
"clearly indicate[d]".

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

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Re: [Ogf-l] PI in summary...

[Joe Mucchiello]

At 04:26 AM 10/24/2003 -0400, Scott Broadbent wrote:
So much for PI being the "white-out" method.  Anyone have a 3rd
suggestion (other than a forbidden terms list, but similar to the
"white-out" method) what PI could be interpreted as?
Why does this invalidate the white-out method? The whiteout method works 
great even with terms not found in the OGC. If you find the term in the OGC 
you white it out. If you don't find it, do nothing.

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Re: [Ogf-l] PI in summary...

[Joe Mucchiello]

At 09:37 AM 10/23/2003 -0500, woodelf wrote:
What is PI?  We don't know.  It's either stuff you're forbidden from 
using, or stuff that is functionally not in the source when reusing. Oh, 
and PI is either a completely separate construct from OGC, created by the 
WotC OGL; separate from OGC but the WotC OGL can only be applied to works 
containing OGC; or a subset of OGC and therefore meaningless when declared 
outside of all OGC. And you either have to own PI according to 
conventional IP laws, or you have to own PI in some other manner, or you 
don't have to own it.  Did i miss any of the possibilities?  Personally, i 
believe that the "PI is 'missing'" theory is the best fit for the license, 
and have been convinced by the legal minds on the list that PI outside of 
OGC is meaningless (so, frex, the PI declaration attached to the new 
D20SRD has no weight and need not be respected, because those terms never 
appear in OGC, much less in the OGC of the D20SRD).  As for ownership, i 
haven't a clue--i don't think any ofthe possibilities agree with both the 
WotC OGL and IP laws, and i don't think it can be cleared up without the 
license being reformed, at least slightly.

What PI mustn't i use?  We don't know.  The license makes it unclear 
whether you must avoid all PI ever published (unreasonable and therefore 
unlikely), all PI that is declared in works you cite (even if they are 
upstream sources and you've never seen them and can't track down a copy), 
or just the PI of those works you derive directly from. Ryan did clarify 
for us that, as far as he's concerned, PI is a conttractual agreement in 
isolation.  IOW, you only have to know about and respect the PI 
declarations of those works you specifically derive from--the works they 
in turn derived from aren't your problem. I'm going with Ryan's 
interpretation because (1) he was behind the license in the first place, 
(2) his reading makes the most sense and provides the fewest logistical 
nightmares, and (3) his reading all but guts PI of any power and i 
personally wish that PI didn't exist at all.

Hope that clears all that up.  And clarifies why i think the WotC OGL is 
such a lousy license, badly in need of revision.  And why, if i *were* 
going to use PI, i wouldn't do so for anything i didn't have stronger 
protection on (such as a trademark or copyright claim).


Someone clip this (remove a few of the saucy remarks) and put this in an 
Unanswered Questions of the OGL FAQ.

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Re: [Ogf-l] Re: Credits/Compatibility

[Joe Mucchiello]

At 08:19 AM 8/28/2003 -0400, [EMAIL PROTECTED] wrote:
It seems that since the license applies at the level of the work, it 
slurps up everything as OGC except that which you define as PI.
If this were true, why would you have to declare what is OGC? Only the PI 
declaration would be necessary.

There are definitely supposed to be 2 types of content OGC and non-OGC in a 
covered product. Some OGC contains PI as well but that has nothing to do 
with the distinction here.

>That's a bad declaration as far as I'm concerned.  You should define 
things exclusively.  You should say,
> "All text in this work _except_ the stuff defined as PI is OGC.  The 
following is PI: blah, blah."  Even that
>definition is, to some degree, insufficient the way most people handle 
it, if the default assumption is that the
>work is licensed and that the license wants to OGC everything in 
sight.  Why?  People rarely remember to
>talk about their formatting.  They should declare their formatting as OGC 
or PI.

Please don't start this argument over again. There is no PI unless the 
surrounding text is OGC. You do not have to exclude PI from your OGC 
declaration since the license already does this for you. PI trumps OGC in 
the license.

Search the archives for the three types of content:
1) Regular copyrighted text
2) OGC
3) PI within OGC
This has been hashed to death and your interpretation is neither new nor 
accurate.

"2. The License: This License applies to any Open Game Content that 
contains a notice indicating that the Open Game Content may only be Used 
under and in terms of this License. "

Notice that the license does not apply to a work. It only applies to the OGC.

  Joe

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Re: [Ogf-l] huh?

[Joe Mucchiello]

At 01:14 PM 8/5/2003 -0400, Doug Meerschaert wrote:
Noticed the following quote in a review 
(http://www.d20zines.com/html/modules.php?op=modload&name=News&file=article&sid=558&mode=thread&order=0&thold=0) 
of the PDF version of the SRD that some opportunisitc company is selling.

"While some intrepid souls have freely offered SRD compilations in pdf or 
other formats, these are not official releases and are frowned upon by the 
Open Gaming Foundation."

Did I miss some grand announcement?  Did someone issue a decree that the 
OGF (not WotC, the OGF!) will only endorse a few formats of the SRD?
"By Glenn Dean, Staff Reviewer"

Um, I think the reviewer is the real person you want to talk to about this. 
The word "official" appears far too often in that review

  Joe

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Re: 37 questions (was re: [Ogf-l] Re: Possible Formation of Project)

[Joe Mucchiello]

At 02:47 AM 8/4/2003 -0400, Doug Meerschaert wrote:
9: Does your product describe or include character creation, as defined by 
the d20 System Guide currently hosted at www.wizards.com/d20?
10: Does your product describe or include charater advancement, as defined 
by the d20 System Guide currently hosted at www.wizards.com/d20?
11: Have you re-defined any of the Required Terms?
Are these missing a NOT? You should answer NO as they are written.

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Re: [Ogf-l] Possible Formation of Project

[Joe Mucchiello]

At 12:13 AM 8/3/2003 -0700, Jeremy Noetzelman wrote:
On Sun, 3 Aug 2003, Joe Mucchiello wrote:

> conditions to distribution. GPL adds conditions to distribution. Even if
> you found a way to distribute your OGL source, you cannot include GPL
> source in the same program.
This is incorrect.  The GPL does not mandate the GPLing of your code, only
that it must be released under a GPL friendly license.  BSD/MIT licensing
would be a prime example of that.
Since when? The BSD crowd constantly deride the GPL because of its viral 
nature.

He said the program he is modifying is already GPL. I believe he is not the 
original author of said program, I could be wrong.

GPL 2.B. states:

2b) You must cause any work that you distribute or publish, that in whole 
or in part contains or is derived from the Program or any part thereof, to 
be licensed as a whole at no charge to all third parties under the terms of 
this License.

That is a restriction placed on the OGC part of the code. You cannot do 
this under the OGL

It's entirely possible and legal to use GPL code alongside OGL code if the
OGL is deemed to be GPL compatible by the FSF or more importantly, the
copyright holder of the GPL'd code used.
Yes, but the OGL does not allow you to do it.

Of course, if you're the copyright holder of the entire codebase, you can
GPL parts of it and OGL parts of it and be fine.
Yes, but the original author, to me, made it sound like he's found an 
abandoned project and he want to convert it to d20.

  Joe

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Re: [Ogf-l] Possible Formation of Project

[Joe Mucchiello]

At 09:19 PM 8/2/2003 -0700, Marty Minick wrote:
Also, any binary I'm likely to compile would also fall
under the GPL, as the base source for the game I'm
designing this for was released under same. Under the
GPL, if I recall correctly, you MUST include the
source along with the binary, and any further
distribution of your code without the source is
actionable. So if someone were to do this, I don't see
where *I* would be at fault, for something *they* did,
which was in violation of both licenses. Especially
if, As I surely would, I were to note, that
distribution of the Mod without the source was in
violation of several licences.
Now you are completely dead in the water. You cannot use the GPL and the 
OGL simultaneously. OGL specifically prohibits you from adding any 
conditions to distribution. GPL adds conditions to distribution. Even if 
you found a way to distribute your OGL source, you cannot include GPL 
source in the same program.

Sorry,
  Joe
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Re: [Ogf-l] Possible Formation of Project

[Joe Mucchiello]

At 10:55 AM 8/2/2003 -0700, Fred wrote:
>If it isn't human readable, it isn't clearly indicated.  That seems 
pretty clear to me.

Please point me to the definition of clearly or indicated that implies 
human readability is required. An arrow can indicate. A finger can 
indicate. You don't read an arrow or a finger.

The following paragraph is in FRENCH:

Ou est le livre?

Now, I say The previous paragraph of this email is OGC. If you do not 
understand French, you cannot read it. But it is still __CLEARLY 
INDICATED__.  There is nothing in the OGL that says clearly indicated OGC 
has to be comprehensible, human readable or even visible. If I create a 
sound file with a bird chirping, can't I OGC the sound file?

The faq says that the reader has to be able to extract the OGL but this is 
also not in the license.

(And to show that I'm not being obtuse...) No, the real problem with making 
the whole file OGC is that you probably don't have the right to contribute 
the runtime library of your development environment as OGC. However, if you 
didn't use the built-in runtime library (good luck there) then you probably 
could contribute the whole executable as OGC.

  Joe

P.S. If there are errors in my French, remember that it doesn't even have 
to make sense in French to be OGC :-)

At 01:21 PM 8/2/2003 -0400, Joseph Elric Smith Mormon minion of Arioch wrote:
If you can't read it it is not clearly indicated.
Ken
Gygax is to Gaming what Kirby was to comics
Alas poor Elric I was a thousand times more evil than you
http://www.geocities.com/J_Elric_Smith/Index.html
----- Original Message -
From: "Joe Mucchiello" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Saturday, August 02, 2003 1:24 PM
Subject: Re: [Ogf-l] Possible Formation of Project
> At 10:10 AM 8/2/2003 -0700, you wrote:
>
> >--- [EMAIL PROTECTED] wrote:
> > > If you said "all the
> > > compiled
> > > binaries included in this distribution are 100% OGC" how would that be
> > > _anything_ other than clearly indicated.
> >
> >Because you can't read the OGC out of the binaries... not without
specialized
> >technical knowledge.
>
> So? Where does the OGL say the OGC has to be human readable. It only says
> it has to be clearly indicated.


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Re: [Ogf-l] Possible Formation of Project

[Joe Mucchiello]

At 10:10 AM 8/2/2003 -0700, you wrote:

--- [EMAIL PROTECTED] wrote:
> If you said "all the
> compiled
> binaries included in this distribution are 100% OGC" how would that be
> _anything_ other than clearly indicated.
Because you can't read the OGC out of the binaries... not without specialized
technical knowledge.
So? Where does the OGL say the OGC has to be human readable. It only says 
it has to be clearly indicated.

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RE: [Ogf-l] understanding the D20 licensing

[Joe Mucchiello]

[tongue firmly in cheek]

At 12:00 AM 7/22/2003 -0500, woodelf wrote:
So that's why there's "any doubt" as to its officialness (i.e., i'm 
apparently out of touch).
Well, obviously, just a day ago you admitted you had no clue how little 
mindshare penetration the OGL had. :-)

[/tongue]

  Joe

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Re: [Ogf-l] SRD released (apparantly)

[Joe Mucchiello]

At 05:42 PM 7/21/2003 -0400, Sixten Otto wrote:
At 05:32 PM 7/21/2003 -0400, Joe Mucchiello wrote:
No more "Wizards doesn't have PI" rebuttals.
Do any of those terms actually occur in the files? (I'm looking, but I 
just discovered that the ZIP versions are still the 3.0 SRD files, and 
have NOT been updated.)
Apparently not, this list was just in case a mistake was made most likely.

The "All of the SRD" zip has not been updated. The 5 SRD chunks are the 3.5 
SRD.

Even the Hells of Baator are replaced (in the pit fiend entry) with 
"Environment: A lawful evil-aligned plane"

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Re: [Ogf-l] SRD released (apparantly)

[Joe Mucchiello]

At 05:03 PM 7/21/2003 -0400, Doug Meerschaert wrote:
Don't know if their web-staff jumped the gun, or if it's just up nice and 
early, but the 3.5 SRD is up on WotC's website.

More after I digest it--but on first looks, I must say that I am very 
impressed with it.  Still RTF, but with real tables--and monster descriptions.

Andy, if you're still on the list--you rock!


Wow,

From Legal.rtf: The following items are designated Product Identity, as 
defined in Section 1(e) of the Open Game License Version 1.0a, and are 
subject to the conditions set forth in Section 7 of the OGL, and are not 
Open Content: Dungeons & Dragons, D&D, Dungeon Master, Monster Manual, d20 
System, Wizards of the Coast, d20, Forgotten Realms, Faerûn, character 
names (including those used in the names of spells or items), places, Red 
Wizard of Thay, Heroic Domains of Ysgard, Ever-Changing Chaos of Limbo, 
Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian 
Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine 
Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of 
Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of 
Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness 
of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the 
Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile 
Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer 
beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.

No more "Wizards doesn't have PI" rebuttals.

Glad I got a look before heading out to GenCon.

  Joe

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com 

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Re: [Ogf-l] (Long) Copyright, Trademark, OGC, PI,Separate vs. Meta-Licens...

[Joe Mucchiello]

At 09:58 AM 7/2/2003 -0400, [EMAIL PROTECTED] wrote:
In a message dated 7/2/03 9:34:09 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Gee, and I thought that PI simply belongs to its contributor unless
otherwise noted. It really is (or should be) that simple.
Joe, I think the point raised is whether one can "own" something that 
would de jure be in the public domain in other branches of IP law (because 
it is not covered by patent, trademark, or copyright).
Yes or no? You can agree, in a contract, to never use the word "Zeus" in 
your products (for some unspecified consideration)?

If you answer No? Explain why not?

If you answer Yes? Then obviously something public domain can be made off 
limits in a contract. Since one piece of public domain speech can be 
disallowed by contract, why can't any other public domain entity be 
declared off limits by the OGL (a specific contract)?

The inquiry goes something like this.  I write a book.  Do I own the 
copyright on the book?  Yes.  Now, John Doe is a character in the book who 
is fully fleshed out.  Do I own the copyright on the character?  Yes.  But 
do I own the name "John Doe"?
Who cares? If you say John Doe is your PI, then everyone using your OGC 
must respect your PI. The ability to copyright or trademark John Doe is 
IMMATERIAL to the OGL.

So, it seems that while a PI "owner" may simply be the originator of this 
particular instance of a concept, pose, etc., some have inferred that you 
must be a copyright or trademark owner to own PI.
Nowhere in the license does it tell you to do so. So, why do it?

In fact, it seems that while you must be a copyright owner or trademark 
owner to contribute OGC, no similar definition is given re: PI ownership.
Exactly. Funny isn't that?

I find it hard to believe that the intent of the license is to limit 
itself to copyrightable or trademarkable properties.  If it was meant to 
do that, then there would be no reason to have a laundry list of things 
that are and are not copyrightable.

Instead, it lists things that are frequently not normally subject even to 
a patent: a pose, a theme, etc.
Again, right on. Since the list contains element that can neither be 
copyrighted or trademarked that should be a big clue that neither copyright 
nor trademark law apply.

So taken in context of the greater license, I think that "ownership" 
regarding PI need not be limited to copyrightable or trademarkable 
matter.  While OGC dedication expressly requires some copyright or 
trademark over the OGC'd products, PI is not declared to have a similar 
requirement.  One possible inference is that this omission was intentional 
precisely because PI is intended to protect the otherwise unprotectable, 
as well as to carve out certain already protected forms of IP from reuse.
See my first exercise. Contracts allow you circumvent normal civil code 
laws. Copyright and trademark have extensive civil components.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com
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Re: [Ogf-l] (Long) Copyright, Trademark, OGC, PI,Separate vs. Meta-Licenses and more.

[Joe Mucchiello]

At 01:11 AM 7/2/2003 -0400, Rogers Cadenhead wrote:
On Wed, 02 Jul 2003 00:54:42 -0400, Joe Mucchiello wrote:
>Second, PI is NOT NOT NOT Intellectual Property. It is a term in a
>contract.
In that contract, part of Product Identity's definition is that you
must be "the owner of the Product Identity" in order to claim it.
That brings the issue of copyrights and trademarks into the equation,
because there's nothing in the OGL that establishes any way other
than copyrights and trademarks to own something.
Gee, and I thought that PI simply belongs to its contributor unless 
otherwise noted. It really is (or should be) that simple.

Joe



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Re: [Ogf-l] (Long) Copyright, Trademark, OGC, PI,Separate vs. Meta-Licenses and more.

[Joe Mucchiello]

At 12:19 AM 7/2/2003 -0400, Rogers Cadenhead wrote:
On Tue, 01 Jul 2003 23:13:51 -0400, Joe Mucchiello wrote:
>Why would PI be limited to what copyright allows? You can agree to
>anything in a contract. Nowhere in the OGL does it state the PI
>follows the rules of copyright law. Any court that even considered
>PI similar to copyright would be acting outside the contract.
I think the principle is that you must be the "owner of the Product
Identity" to declare it (section 1e). How do you establish ownership
of intellectual property other than by means of copyright and
trademark?
Huh?

First, since you can PI things that can be neither copyrighted nor 
trademarked, why would you use either of those things to determine who the 
owner of PI is?

Second, PI is NOT NOT NOT Intellectual Property. It is a term in a 
contract. Just because it is similar to other IP concepts is completely 
irrelevant. Since the contract does not state the PI works like copyright 
or trademarks, there is absolutely no reason to assume it does.

Third, the only time I care about the owner of PI is if I wish to license 
it in my product: "7. 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."

Fourth (and this one is a lot more shaky than the above), since section 1f 
defines "trademark" even references to trademarks within the license MAY 
NOT refer to actual trademark law: "1 (f) "Trademark" means the logos, 
names, mark, sign, motto, designs that are used by a Contributor to 
identify itself or its products or the associated products contributed to 
the Open Game License by the Contributor." Why define the term when it has 
a perfectly good legal meaning already unless you did not want to use the 
normal legal meaning?

Enjoy,
Joe Mucchiello (is not a lawyer)
Throwing Dice Games
http://www.throwingdice.com
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Re: [Ogf-l] (Long) Copyright, Trademark, OGC, PI,Separate vs. Meta-Licenses and more.

[Joe Mucchiello]

At 07:40 PM 7/1/2003 -0500, woodelf wrote:
While your reading seems reasonable, i disagree with this part of it: 
IMHO, since it can't be copyrighted, despite clause 1e of the WotC OGL, it 
can't be considered PI.  IMHO, those things in the PI definition that 
cannot be protected outside of the WotC OGL are likewise not protectable 
with it, and should it ever be challenged will require reformation of the 
license.
Woodelf, I've never seen you so far off the mark.

Why would PI be limited to what copyright allows? You can agree to anything 
in a contract. Nowhere in the OGL does it state the PI follows the rules of 
copyright law. Any court that even considered PI similar to copyright would 
be acting outside the contract.

  As far as i'm concerned, PI just extends the protections of copyright 
into OGC
No, no, no. Don't compare PI to copyright and/or trademark. It is only what 
the OGL says it is. Just because it has analogous behavior to trademarks or 
copyright does not mean that the laws of those things makes an iota of 
difference. Unless the OGL said : treat PI as copyright, there's no reason 
for a court to make that leap of logic.

, and PI that is not also OGC is meaningless (based on Alex's reasoning 
here on the list--until i hear an actual lawyer knock a hole in it).
More accurately, PI outside of content designated OGC in an OGL covered 
work does not exist.

Which is what has worried me from day one: that the license's definition 
of PI might be ruled valid /in toto/, and used as the basis to extend the 
breadth of IP in detrimental ways.
I don't think a contract law case could be used as precedent in a copyright 
law case. No matter how many rulings are ever made on the OGL, they should 
have zero impact on normal copyright. Likewise, I doubt Congress will look 
to the OGL for ideas the next time they decide to screw up copyright law. 
They made the DMCA and Sonny Bono Copyright Act all without the benefit of 
the OGL.

  Joe Mucchiello
  Throwing Dice Games
  http://www.throwingdice.com
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Re: re[2]: [Ogf-l] RE(2): Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 05:56 PM 7/1/2003 -0400, [EMAIL PROTECTED] wrote:
In a message dated 7/1/03 4:13:55 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:

<>
Yes, there is.  Particularly if you want to make computerized support 
products for your gaming supplements.  Take your most recent publication: 
if you had come up with nifty names for the tracks and PI'd them, then 
without re-releasing large chunks of your product, re-written, then nobody 
could readily make a "character customization" program that was readily 
compatible with your book.  They'd have to make the product totally 
stand-alone.
I don't consider that an advantage. Why should I prevent others from using 
my OGC? Silly me, I create gaming material so that people can use it. If 
some other pub comes along and "steals" my work verbatim, he will get 
derided on this list for being so callous. That is good enough for me. If I 
cared about people making money off my material I wouldn't use 100% OGC in 
my releases. Abusing PI to prevent people from using your material a 
computer program is stupid. Putting the material in computer program will 
lead users of the program to my work. Maybe they'll even buy it.

Am I naive? I don't think so. But given the choose, I rather wear the rosy 
glasses than spend my life worried that THEY are going to steal my precious 
IP. Fact: There are no new ideas under the sun. It's just a matter of who 
writes them down first. Worrying causes wrinkles and is bad for the heart. 
Rosy glasses cause happiness and warmth. YMMV.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com
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re[2]: [Ogf-l] RE(2): Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 03:08 PM 7/1/2003 +0100, Mike Dymond wrote:
You seem to think that if I am right then nobody will be able to produce 
any new material for fear of treading on someone else's PI.
If you are right, I would have to stop publishing under the OGL as I could 
never know whether or not a random collection of letters: Merlynn, was PI 
or not.

I think that if you are right then no publisher will ever produce any 
decent material for our beloved system because they will have absolutely 
no protection for any PI they have designated!
I produced many pages of OGL, all 100% OGC, and I've had to PI only a few 
terms along the way (the names of the books, my company name, etc) and only 
once did I PI a name: Bensalem, a wizard from "long ago". If the OGL 
continues as it always has, I will continue to publish as I have. The 
reason I can continue on is because I know I'm not deriving from PI because 
I avoid books that have stupid PIed terms. There is no value in PIing a 
spell name, a feat name, or any other game term. PI people and places in 
books if you must, just keep those names out of the spell and feat names.

This is a tricky conundrum. The only solution I can think of is a PI 
repository, but that seems to have been snubbed by the rest of the list.
How do I enter the plot to a story (which I can PI) into a PI repository? 
How does one look up a plot entered into said repository? Now answer the 
same questions substituting dialogue for plot. Can be the one to PI the 
theme of good versus evil?

The solution is to only be responsible for PI in works you derive from 
directly.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com
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re[2]: [Ogf-l] RE: Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 02:56 PM 7/1/2003 +0100, Mike Dymond wrote:
Firstly I might have over stretched some points in the past. I do not 
think that PI in non published (or limited distribution) titles is an 
issue, but once a product has been fully publihsed then the PI within it 
needs to be protected.
In what part of the OGL does it distinguish between these so called 
"non-published (or limited distribution)" titles and "fully published" 
ones? My copy must be incomplete.

If it is not protected then the whole process of creating OGL material 
will become much much more expensive because the only way that you will be 
able to protect your IP will be to apply for a trademark (or similar) i.e. 
you will have to rely on existing laws rather then being able to use the 
simple PI rules as defined in the OGL.

This will be a great shame.
This is going to come as a shock to you, but, most of your PI isn't worth 
anything. Unless you are licensing a hot property (which will already be 
trademarked) or you own the next Grayhawk, just about every piece of PI out 
there is worthless. Most RPG creators want to make their own worlds with 
their own ideas that they had since they started playing at age 10. They 
don't care about the Caves of Ramatut in your product or the Stone of 
Blarney in someone else's. They want to publish books about their own cool 
places and people.

In fact, I would contend that you do more for your product line if you open 
your IP than if you leave it closed. Look at Freeport and Bluffside: they 
are known throughout d20-dom, even among people who never purchase a 
freeport book or bluffside book. But I'll be the use of those places in 
third party materials has enhanced Green Ronin's and Mystic Eye Games' 
sales of their respective titles.

The community is small enough that if someone did use your PI, they would 
be shunned if they didn't admit it. Or you would be shunned for foolishly 
PIing Zeus. Either way, I don't see how PI, as the rest of the board has 
interpreted does not protect your IP as well as you'd like. If you need 
Trademark like protection on you IP, the OGL is not going to give it to you.

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com
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re: [Ogf-l] RE: Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 02:29 PM 7/1/2003 +0100, Mike Dymond wrote:
So to me the question comes down to this concept of independent creation. 
In the above example I think that a Judge would ask Company B to PROVE 
that they could not possibly have copied the work from Company A. Firstly 
it would need to be established where Company A's material was available, 
if it was available via the Internet then Company B would need to prove 
that they (and all their employees) had never used the Internet (something 
that they will not be able to do). And if the material was available in 
games shops then they would have to prove that they had never visited any 
games shop ever (can you really remember every book you have ever picked 
up and flicked through? How do you know where you got all your ideas 
from?). (This has come up before but check out the music industry for 
examples of hard hard this is to prove and also the lengths that companies 
and individuals go to to protect themselves from this.)
This is silly. According to logic, it is impossible to prove a negative. 
You can only prove what was done, not what wasn't done. Just because I had 
access to the internet doesn't mean I encountered your website. How do I 
produce a file listing every website I've never been to? However, your 
webserver has logs saying who visited it and who downloaded what. Thus the 
burden of proof should be on you to show I downloaded your file.

Likewise, just because your book is in every game shop doesn't mean I've 
ever read it. You would have to have someone go to the shops I frequent and 
ask if I'm known to read everything that comes in or not.

So if Company A is of a reasonable size and has actively published their 
material then I think Company B will be on very shaky ground.
There are several big publishers whose books I don't touch. Now if your 
interpretation is right I should "badmouth" them in public so it's on 
record that I avoid them. Well, that's no way to act in such a small 
industry. So I will continue not to badmouth them. But according to your 
interpretation I'm leaving myself open to danger. You're interpretation is 
far more likely to reduce the number of people using the license than the 
consensus interpretation.

If Company A is however just one man and his dog in a bedsit someplace and 
has only ever created one product that he sent to his friends only, then 
Company B would have a fairly easy job is proving that they had never seen 
the material that they are accused of stealing.
But I thought PI included all PI?

  Joe Mucchiello
  Throwing Dice Games
  http://www.throwingdice.com
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re[2]: [Ogf-l] Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 07:48 PM 6/27/2003 +0100, Mike Dymond wrote:
 >>  But I can create a creature called Nike and I could even trademark that
 >>  creature. In this case the two Lizard Snarks have different 
descriptions
 >>  (the stat blocks) and as long as the descriptions are different, both
 >>  claims to Lizard Snark are equally valid.

If you created a creature called Nike then I would expect to be sued by 
Nike as they will have trademarked their name in all categories.
Nope.
http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78248500
Also, remember Nike is the Greek goddess of victory. If you creature refers 
to her, even Nike, Inc will not bother you. (Just be careful with those 
swooping curved lines.

Trademark split the world into seperate categories and generally you only 
register you trademark in on or a few categories that are applicable to 
your business, however large organisations liek Nike will claim that they 
need to protect their name in all categories because their brand is so big 
(this BTW costs a lot of money, especially if you then do it in every 
country around the world, 1 trademark in 1 category around the world costs 
about $200,000 - I have first hand experience of this).
Look at the filing date on that link above: May of this year.


As I have said before, I think trademark law is the most aplicable to PI, 
hence I will keep refering to it.
Why? Nowhere in the OGL does it say, "Use trademark law as a basis for this 
concept."

Whether you use that material or not is irelevant, if it is PI'ed then you 
are not allowed to use it (even if you don't even know it exists!)
Bull. You cannot enter into a contract unknowingly. The OGL contract is 
between the creator of Lizard Snark and the deriver. Everybody else on the 
planet is an outside party to this agreement. If I derive something from 
the deriver, our contract does not contain any mention of Lizard Snarks. 
Thus, I can create my own Lizard Snark even though it is PIed in the first 
book. I have no contract between myself and that first book.

I agree completely, if we where all governed by trademark (or copyright) 
law. We are not, we follow the OGL and that allows PI. Now if someone 
creates a book under the OGL called Catcher in the Rye then NOBODY else 
can use that name in any other OGL product ever!!!
No, only people who derive from my Catcher in the Rye are in a contract 
with me.

  Joe

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re: [Ogf-l] Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 02:14 PM 6/27/2003 -0400, Rogers Cadenhead wrote:
There is no "should have checked first" obligation where the OGL is
concerned. If you are completely unaware of another publisher's open
content and product identity, you couldn't be sued "for using their
PI."
That's not entirely accurate. You can always be sued. Even when you've done 
nothing wrong. In this case, you should win, but there's nothing to prevent 
the lawsuit. Even worse, if you couldn't afford to defend yourself 
properly, you could lose, setting up a dangerous precedent. Granted, there 
are no "damages" under the OGL aside from taking stock out of the channel. 
But the lawsuit still costs money to defend against.

  Joe

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re: [Ogf-l] Independently Designed OGC/PI Clashes

[Joe Mucchiello]

At 06:28 PM 6/27/2003 +0100, Mike Dymond wrote:
Hi

 >>  Lee creates a creature called a "Lizard Snark".  It has a stablock we'll
 >>  call "A".  Lee PI's the name.  Tom creates a creature called "Lizard
 >>  Snark" with a statblock we'll call "B" and OGC's the name.  They are
 >>  created independently.
No such thing as created independently! (just because you claim never to 
have heard of Nike does not mean that you can start making shoes called 
Nike! - even if you do live on the moon)
But I can create a creature called Nike and I could even trademark that 
creature. In this case the two Lizard Snarks have different descriptions 
(the stat blocks) and as long as the descriptions are different, both 
claims to Lizard Snark are equally valid.

Lee should sue Tom for using his PI. The fact that Tom was not aware that 
Lizard Snark already existed is no defence (Tom should have checked 
first). If this came to court then Lee would have to prove that he had 
created Lizard Snark and PI'ed it before Tom created did.
Checked what first? Tom created his Lizard Snark without knowledge of Lee's 
Lizard Snark. Lee has no grounds for suing Tom since the stat blocks are 
different.

If Tom had actually created his first and had OGC the name then it would 
not have been Lee's to PI in the first place. (you can only PI what you 
are allowed to - i.e. own or licence)
Lee can PI any name he pleases whether or not Tom has already OGC'd it. 
He's PIing his Lizard Snark, not al Lizard Snarks everywhere. Change the 
name to Zeus. Lee can PI his version Zeus all he wants. Tom can OGC his 
version of Zeus. It's the same situation here.

If Lee did nothing then he would be accepting that he does not have a case 
and Lizard Snark would become OGC for ever. There would be a maximum 
length of time that Lee could leave it before suing Tom, not sure what 
that would be, 12 months?, 10 years? (someone with some legal knowledge 
want to help out?).
We are not talking about trademarks. Don't refer to them in this 
discussion. And there is no set time period if we were discussion 
trademarks. The time period is whatever the trademark holder can get away 
with in front of a judge.

If you knew of the existence of both Lee and Tom then I would highly 
advise that you contact Lee. He may well be aware of the situation and is 
about to sue Tom and if he wins then he will be coming after you next!
This is why I don't use any material that PIs names of game objects 
(spells, monsters, feats, etc).

All of this is based on existing copyright law which is what the whole OGL 
and PI is based on (although of course no one really knows until it really 
does end up in court).
No, you are arguing trademark law. Copyright law expressly forbid the 
protection of titles. Want to write a book called Catcher in the Rye? Go 
for it. No one can stop you. Want to a make a book with a main character 
called Holden Caulfield? Go for it. Just don't call that book Catcher in 
the Rye.

The OGL is far more based on Contract law than Copyright law.

  Joe

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Re: [Ogf-l] d20 Modern in a Product Title

[Joe Mucchiello]

At 12:11 PM 6/14/2003 -0600, you wrote:

On Saturday, June 14, 2003, at 11:58 AM, Joe Mucchiello wrote:
If not Tuesday, then by the end of the week. Depends on how long it takes 
me to finish the layout and put in the bookmarks.
Are you manually putting in bookmarks? If so, what layout program are you 
using that you need do this?
I am insane (or just cheap) and do not own Acrobat. I use Word and a print 
driver to create postscript and then manually add the bookmarks (from a 
table word generates to another file) to the postscript. It doesn't take 
more than a hour to do this way. I just have to spend the time getting word 
to included everything I want in the list of bookmarks. Generally I start 
with heading levels 1-3 and then add stuff from there. In Joe's Book of 
Enchantment, I included every magic item (no headings) in the bookmark list.

This time around, I plan to include an alphabetical table of feats in the 
bookmarks since feats appear throughout the text. Would Acrobat make this 
easier to do? JBoE had two meta-levels of bookmarks, the table of contents 
and the table of tables. I've never seen that done in other PDFs.

The convenient thing about this is that it's repeatable. Once I have the 
bookmarks in a separate file, I can make minor revisions to the book in 
Word and reapply the bookmarks to the postscript in seconds as long as the 
pagination hasn't changed.

Nothing I have heard about Acrobat has made me think it would save me 
significant time.

  Joe

(Oh, and the implied delay in my post has more to do with placing artwork 
and stuff than making bookmarks.)

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Re: [Ogf-l] d20 Modern in a Product Title

[Joe Mucchiello]

At 01:43 PM 6/14/2003 -0400, [EMAIL PROTECTED] wrote:
He probably should, but just as an FYI, his "Custom Hero" product has been 
available already for some time in one incarnation or another.

BTW -- are we gonna actually see your product next Tuesday, Joe, or is it 
still on indefinite hold.  That was probably floating around in the back 
of my mind when I threw out the title.


If not Tuesday, then by the end of the week. Depends on how long it takes 
me to finish the layout and put in the bookmarks.

  Joe

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Re: [Ogf-l] d20 Modern in a Product Title

[Joe Mucchiello]

At 09:36 AM 6/14/2003 -0400, [EMAIL PROTECTED] wrote:

3) you can call your gaming product: "Modern Roleplaying Character 
Customization"


I would hope you would find a name a bit more different than the name of my 
soon to be released product: 
http://www.throwingdice.com/products/customize.html

Thanks,
  Joe
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Re: [Ogf-l] Mongoose's d20 Cyberpunk

[Joe Mucchiello]

At 08:03 PM 6/12/2003 -0400, Doug Meerschaert wrote:
)
I am guessing that this is not kosher, absent a special agreement with 
Wizards. Would I be wrong in my assumption?
No, you'd be spot-on.  "Dungeon Master's Guide" is probably the strongest 
trademark of the three WotC books--no one else uses the term to mean " the 
guy who runs the game," and it's not (AFAIK) in the SRD.
Well, it's probably a mistake but from srdPsionicCreatures.rtf:

Creating an Astral Construct
When manifesting an astral construct power, the manifester assembles the 
desired creature from a menu of choices as specified in the construct's 
statistics block. A manifester can always substitute two abilities on a 
lesser menu for one choice on the next higher menu. Astral constructs 
generally appear as animate clumps of ectoplasm with a vaguely humanoid 
shape, but the manifester can mold or sculpt them according to his or her 
whim within the limits imposed by the creature's size. The quality of such 
"construct sculpture" is determined by a Craft (sculpting) check with the 
appropriate DC set by the Dungeon Master.



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RE: [Ogf-l] SCO and the OGL

[Joe Mucchiello]

At 10:20 PM 6/7/2003 -0700, Kem Rangoric wrote:
On the whole topic of footnotes and citing sources,
how about the method used in "The Tome of Horrors"?
Basically having the Section 15 refer you to the
individual entry which has its own Section 15?
Granted it worked rather well for the individual
monster format, unmixed OGC, and about 99% OGC
material.  But has this method been ruled out for use
for some reason as I have not seen it done in another
product?
None of the material in Tome of Horrors is prior OGC material. So none of 
it is governed by the OGL. The relevant section of the OGL is paragraph 7: 
"You agree not to indicate compatibility or co-adaptability with any 
Trademark or Registered Trademark in conjunction with a work containing 
Open Game Content..." Saying "I took this from XYZ, published by ABC, Co" 
directly violates that sentence. Now, conveniently that sentence continues 
"...except as expressly licensed in another, independent Agreement with the 
owner of such Trademark or Registered Trademark." So books like Expeditious 
Retreat's Internet Arcana can and do reference the source material. But if 
you ask Joe about making that book, I'm sure lining up all the licensing 
was no fun.

Joe

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RE: [Ogf-l] SCO and the OGL

[Joe Mucchiello]

At 02:07 PM 6/7/2003 -0400, Richard Schreiber wrote:
What ever happened to footnotes?
What does the footnote say?

1 Joe's Book of Enchantment.

Bang, you've used my trademark product title in an OGL work. The OGL says 
you cannot do that. Following the license restricts abilities that normal 
copyright allow. As consideration for these restrictions you get the SRD 
and everything else that's OGC as your playground. While lacking the 
ability to reference stuff is annoying, it is a small price to pay.

  Joe

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RE: [Ogf-l] SCO and the OGL

[Joe Mucchiello]

At 09:56 AM 6/7/2003 -0500, woodelf wrote:
At 2:02 -0400 6/7/03, Joe Mucchiello wrote:
[1][1][3] Book of Blah copyright Year by Flaming Porpoises
[2][2] The Complete Foo's Handbook copyright Year by Laughing Skull Games
[3][3] Foobar and Dunwhip: a Guide to Monsters copyright Year by Some 
Game Company"
[4][1] Foo For All copyright Year by One And All
[5][2] Gore, Death and Extreme Measures copyright Year by Dainty Productions
[6][4] Joe's Book of Unoriginal Titles copyright Year by Joe
[7] His book title copyright Year by Him
hmmm...good point.  Ok, so there needs to be some way of labeling the 
entries in Sec.15 without those labels being/becoming part of the 
Sec.15.  multicolumn format, with the Sec.15 in a shaded box and the 
labels outside the box?
LOL. Hey, that's crazy enough to even work.

  Joe

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Re: [Ogf-l] Re: Database

[Joe Mucchiello]

At 12:55 AM 6/7/2003 -0700, Clark Peterson wrote:
...but now you are outside of the safe harbor. What if
a publisher thinks you are misusing trademarks or have
gone beyond fair use? I dont know a lot of volunteers
that like getting in trouble for stuff they
volunteered to do for free on their own time. Not
saying its impossible, just not as easy to do.
Go to yahoo.com and type Coca-cola in the search window. Are you stepping 
on Coca-Cola's trademarks? Is Yahoo! committing some Trademark violation 
putting up all those links about CC?

If you trademark your name and it ends up in a phonebook can you sue the 
phonebook publisher?

I thought a statement fact cannot be a trademark violation. Thus, "Follow 
this link to Exxon's webpage" is completely and utterly safe, assuming that 
is where the link goes.

Likewise, linking "PI Spell name" to a product description page containing 
that spell should be safe.

Or I'm wrong. It is late here in EDT-land.

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RE: [Ogf-l] SCO and the OGL

[Joe Mucchiello]

At 11:24 PM 6/6/2003 -0500, woodelf wrote:
you'd have

"[1] Book of Blah copyright Year by Flaming Porpoises
[2] The Complete Foo's Handbook copyright Year by Laughing Skull Games
[3] Foobar and Dunwhip: a Guide to Monsters copyright Year by Some Game 
Company"
And I'd have

[1] Foo For All copyright Year by One And All
[2] Gore, Death and Extreme Measures copyright Year by Dainty Productions
[3] Book of Blah copyright Year by Flaming Porpoises
[4] Joe's Book of Unoriginal Titles copyright Year by Joe
And Since you are are supposed to be exact, someone using OGC from both of 
our books would have:

[1][1][3] Book of Blah copyright Year by Flaming Porpoises
[2][2] The Complete Foo's Handbook copyright Year by Laughing Skull Games
[3][3] Foobar and Dunwhip: a Guide to Monsters copyright Year by Some Game 
Company"
[4][1] Foo For All copyright Year by One And All
[5][2] Gore, Death and Extreme Measures copyright Year by Dainty Productions
[6][4] Joe's Book of Unoriginal Titles copyright Year by Joe
[7] His book title copyright Year by Him

Joe Mucchiello
Throwing Dice Games
http://www.throwingdice.com
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Re: [Ogf-l] Re: Database

[Joe Mucchiello]

Actually, Clark. Read Spencer's (the sigil) original posting: "there 
existed no practical barriers to such a thing (assume the database is 
"omniscient" and can give you the reference to any piece of OGC - not 
necessarily the OGC itself, but perhaps it could work kind of like google - 
when you enter a search string that is allegedly OGC, it returns the name 
and page number of the source without returning the OGC itself), " Are you 
saying that a database of references to your products is not a boon to your 
business. If I understand what he is proposing correctly, you would type in 
a search:
   Search Terms: ___ becomes shaken _
The browser would return:
(96%) Shaken, Condition Summary, SRD, [link-direct link]View this[/link]
(93%) Shaken, Spell, [link=rpgnow./thisbook]Joe's Book of 
Enchantment[/link], [link=throwingdice.com/homepage]Throwing Dice Games[/link]
(89%) Staff of Fear, Magic Item, [link=product page]Name of source 
book[/link], [link=producers homepage]Producer[/link], [link]view this[/link]
etc.

In this case, the producer of the staff of fear allowed this item to be 
displayed. But I did not allow the spell to be displayed. This would be a 
boon for writers, especially if it was opt in only. And I can see where 
this could be considered advertising.

  Joe

At 06:58 PM 6/6/2003 -0700, Clark Peterson wrote:
Doug-

Here is the real issue: give the publishers a business
reason to do it. Right now there isnt a good one.
Clark


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Re: [Ogf-l] The Term "d20"

[Joe Mucchiello]

At 01:29 PM 5/27/2003 -0400, [EMAIL PROTECTED] wrote:
I've noted elsewhere that the only practical way to get people to use OGL 
2.0 would be to create a new type of content called "shared content" or 
something similar, that is exactly like OGC but has additional licensing 
restrictions.  If WotC released it's 3.5 materials under OGL 2.0 as 
"shared content", then the viral nature of the license would cause OGL 2.0 
to spread (and you couldn't use OGL 1.0 since it wouldn't give rights to 
"shared content").  Even this is somewhat ugly in that people would now 
have to separate out "shared content" from "open content" which would be a 
severe nuisance.  So, the end result, is that changes to the OGL would 
only be put into use on a purely voluntary basis to clarify 
misunderstandings and to avoid lawsuits via increased clarity.  People can 
be forced to use an updated d20 STL but not an updated OGL.
Have you considered that a version of the d20 license could say "At least 
5% of your product must be licensed with the OGL 2.0"? Bang, instant spread 
of some future OGL 2.0 license.

Joe

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