Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/9/2005 4:16:50 PM Eastern Standard Time, [EMAIL PROTECTED] writes: So the phonebook is a stretch, I would like to read a summary of the case to which you are refering. I have heard of arguments that make a particular judge's definition of "substantial" very difficult to predict (so litigation is significantly more risky) but in a case of complete copying, that maintained the structure of the original work, then it would be copyright infringement. Slavish organization is not entitled to copyright protection per the U.S. Supreme Court in Feist: http://floridalawfirm.com/feist.html In any case, I do know that some large databases (OCLC, is one) consider the organization of their content to be copyrighted in the same way that a poetry anthology is copyrighted by the publisher/editor. I'm not sure if they have had an opportunity to argue their case, though. Lots of people claim copyright on lots of things that aren't copyrightable. It depends on whether you use a particularly division. If contact info gathered through the "sweat of the brow" is not copyrightable, and if exceedingly common and obvious forms of data storage are not copyrightable, then simple databases are not copyrightable. For example, I'd imagine you'd have next to know copyright protection if you took the phonebooks used in Feist and put it in a spreadsheet with "First Name", "Last Name", "Address", "City", "Area Code", and "Phone Number" in there. When the data is not copyrightable, copyright derives from the creative selection and organization of the data. If the selection is "everything we've been sent" then selection is "sweat of the brow" and not copyrightable. Then only the organization of the data produces copyrightability. Where that is so obvious that most people actually store their data that way then you get no protection for that either. Minimally creative databases get a thin layer of copyright over their structure. Cheers, Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
On Mon, 7 Mar 2005 23:52:21 - David Shepheard [EMAIL PROTECTED] wrote: And yes, by registering something as copyright or a trademark you are creating product identity, whether you have anything to do with the OGL or not. You don't register things as copyright, you just declare them to be copyright. I think you're wrong here. Spike Y Jones ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/8/2005 7:45:25 AM Eastern Standard Time, [EMAIL PROTECTED] writes: You don't register things as copyright, you just declare them to be copyright. I think you're wrong here. Under U.S. Law you _can_ register things for copyright. Things are copyrighted when they are set down in a fixed form (different than in past years). However, some administrative and almost all federal district copyright actions you really want to take require that the copyright be registered. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
From: Chris Helton [EMAIL PROTECTED] Subject: Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?) And yes, by registering something as copyright or a trademark you are creating product identity, whether you have anything to do with the OGL or not. You don't register things as copyright, you just declare them to be copyright. Trademarks can be registered ones or unregistered ones that are declared as trademarks. I don't think they would have different status. Maybe you meant ...by declaring something as copyright or a trademark... I want to take you up on the copyright issue. If you are saying that by registering something as copyright you are creating product identity then I have a problem for you. I've got an English Dictionary sitting on my desk that says (c) Wm. Collins Sons Co. Ltd. That declaration covers a work that contains all the words in the English Language. If you interpret the licence to allow a copyright declaration from someone who is not a party to the licence to give things PI status in this way, then this single book would give all the words in existence PI status. That can *not* be the intent of the OGL. Either you didn't mean to say, what it sounded like you were saying or you are thinking that someone would be declaring a list of items to be copyrighted. David Shepheard Webmaster Virtual Eclipse Science Fiction Role Playing Club http://virtualeclipse.aboho.com/ http://uk.groups.yahoo.com/group/virtualeclipselrp/ ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 12:04:01 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Wouldn't this then mean that Beta Games would be making PI declarations on behalf of Acme Games? Beta Games would then be a third party that benefits from the protection of the OGL. Yes. However, Chris Helton seemed to contend that third parties could benefit from PI protections even if they: a) had no agents signing onto the OGL on their behalf; and b) even if they had not signed onto the OGL themselves The above situation you've presented seems to create a third party who may be entitled to bring suit directly or indirectly (through their agent) to protect their PI. If it is then I can't see how allowing the OGL to be used in *this* way is damaging. See what I _think_ Chris was claiming above. That's what I was originally wondering about I was also tangentially thinking aloud about licensing situations like the one you've described. isn't it logical that something that is included in an OGL product, that has been created by another company should be declarable as either PI or OGC on their behalf. Yes. The contract doesn't explicitly bar agents and assignees in my opinion. why would I not be able to declare the name "Rebecca 'Newt' Jordan" to be Product Identity of 20th Century Fox instead of Product Identity of myself? You can only do it if the owner gives you permission to be his agent, because only the owner can declare PI. Mind you, for all I know you might have intended a totally different third party situation. Maybe you should give us that example after all. DC Comics publishes NOTHING under the OGL, directly or indirectly. They declare on their site "everything we own is PI". I print a single sentence from one of their comics and appropriately note its source. I presume, rightly so, that this would normally be fair use and that they can't stick me for copyright infringement by reprinting one sentence and attributing it. DC Comics is uppity and wants me to stop. They know a copyright lawsuit won't stick. They threaten me, saying they'll sue me under the OGL for breach. They aren't a party, but claim to be a third party who automatically benefits from the OGL (just as, they claim, anyone in the world, be they a contributor to an OGL product or not, can be a third party beneficiary simply by declaring PI outside of an OGL-covered work). They try to sue asserting OGL rights to PI protection which I have supposedly violated. Chris Helton has noted that the PI declaration doesn't note that you have to be a Contributor in that particular version of the license or in ANY version of the OGL to declare PI. And that yet, somehow, people are bound by such PI declarations. Your thoughts? I think that this is outside the clear interest of the parties "signed" to the contract and should naturally be barred since the contract doesn't explicitly provide for third party beneficiaries acting wholly outside the OGL. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
On 2 Mar 2005 at 8:32, [EMAIL PROTECTED] wrote: They threaten me, saying they'll sue me under the OGL for breach. They aren't a party, but claim to be a third party who automatically benefits from the OGL (just as, they claim, anyone in the world, be they a contributor to an OGL product or not, can be a third party beneficiary simply by declaring PI outside of an OGL-covered work). They try to sue asserting OGL rights to PI protection which I have supposedly violated. However, IIRC, third party beneficiaries of a contract must be denoted as such in the contract. Also, (again IIRC) licenses do not have third party portions. In short a license is nothing more than written permission of the owner of a bit of property allowing somebody else to use that property in exchange for considerations. In the case of the OGL, this license grants certain usage rights to material marked as open content, so long as that user abides by certain conditions set forth in the license. This license is cumulative and addative (thus open game content can be garnered from multiple sources, and you can add to it, and those sources follow the life of the content (via the Section 15 statement). Remember, a license is the granting of specific rights to a specific person under specific conditions. Thus in your example, DC cannot use the OGL, because it is not the entity who granted the rights or set the conditions of the OGL. However, If you use that quote from them within open game content (through fair use terms), you had damn well better make sure that it is not released into OGC, and that you do have the proper copyright and trademark use clauses at the beginning of the product... Hmm... I did just think of a possible way that they might use the OGL against you, but not though the PI portion. Part of the OGL is an agreement not to use trademarks and such of others without permission of the owner. Thus while they could not sue for breach of the OGL (they do not have that right, not being a party of the OGL), they can sue you and then use the OGL as evidence for their case, especially if they espouse a wider definition of WORK than you do. TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 9:12:27 AM Eastern Standard Time, [EMAIL PROTECTED] writes: However, IIRC, third party beneficiaries of a contract must be denoted as such in the contract. That may depend on the jurisdiction, but isn't necessarily true (if memory serves) in all jurisdictions. What's most important is whether the language of the license can be construed so as to make third party beneficiaries possible, and whether that was an intention of the parties to the contract. If parties intend to create third party beneficiaries and draft vague language that _might_ be construed to allow third parties to interact with the contract, then third parties may have standing to enforce some part of the contract. While unintended third party beneficiaries might not have standing. Sometimes third party beneficiaries are allowed (even if not named specifically in the contract) if: a) the license doesn't provide that there AREN'T ANY; and b) if the intent of the contracting parties was to allow for third party beneficiaries even if it was not clearly stated The question can really be summed up as: "are third party beneficiaries an intended consequence of the PI definitions? If so, under what circumstances are third parties intentionally allowed even if the language of the contract was too vague to be explicit about the intention? Chris Helton has effectively claimed that because the PI definition simply says the owner of the PI must declare the PI, and because it doesn't say that the owner is a contributor or party to the OGL, that third parties can take action under the OGL to enforce their PI rights even if they aren't parties to the OGL. Now, leaving a PI licensing situation aside (where a third party might have rights to declare through their agents some PI if their agents are the ones signing on to the OGL), the question really is are third parties who aren't directly or indirectly parties to the OGL eligile to bring an OGL suit to assert PI rights. Remember, a license is the granting of specific rights to a specific person under specific conditions. Under some case law third parties who are not named in the contract can get involved. Moreover, almost all contracts that don't specifiy otherwise can have agents and assignees of obligations or benefits. This question is about third parties who are neither assignees nor have agents tangled up in the OGL. Hmm... I did just think of a possible way that they might use the OGL against you, but not though the PI portion. Part of the OGL is an agreement not to use trademarks and such of others without permission of the owner. That's just for compatibility and co-adaptability declarations. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
I think the answer to this question is not so much whether third parties were explicitly allowed for, but more whether third party beneficiaries are consistent with the intent of the parties using the OGL. I don't think third party beneficiaries were intended by the license (which is admittedly vague) except for maybe one situation: you license a property from a company to use in an OGL product and they give you a right of agency allowing you to declare, on their behalf, some PI if you are publishing a work under the OGL. Contracts without explicit third party beneficiaries have third party beneficiaries with standing to enforce the contract ONLY where it is the intent of the parties that third parties should be allowed to do so. If a contract, unintentionally creates third party beneficiaries they are called "incidental, unnamed, unintended third party beneficiaries" and are, in many, if not all, jurisdictions unable to bring suit to enforce a contract. So, I don't think Chris' reading is consistent with U.S. Contract law because it would actually be adverse to parties to the contract and was exceedingly likely not an intended part of the contract. You don't interpret a vague portion of a contract to create third party beneficiaries that are against the interests of all the contracting parties where it is not the clear intent of the parties to allow for it. IANAL YMMV Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 10:24:32 AM Eastern Standard Time, [EMAIL PROTECTED] writes: the key point here is the word "contract". Licenses do not have third party beneficiaries. And the OGL is a license... The OGL _is_ a contract. It has grant and consideration, offer and acceptance. And, to the best of my knowledge (and I could be wrong), any contract can have third party beneficiaries if the empowerment of such third parties is consistent with the intent of parties involved in the contract. Have any case law citations which suggest that licenses differ from other types of contracts regarding third party beneficiaries. I'm always happy to be wrong if it means I learn something new and cool. Thanks, Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 11:39:31 AM Eastern Standard Time, [EMAIL PROTECTED] writes: It is a license. But licenses with grant, consideration, offer, and acceptance are contracts under U.S. law. If they are merely a freedom to act (with no consideration exchanged) then they are merely a form of promissory estoppel. They are gifts. They are grants not to sue you in exchange for nothing. But if there is offer, acceptance, grant, and consideration, then they are a contract. Since an OGL user gives up some of his rights under U.S. law (in the form of his ability to, via fair use, make compatibility declarations, etc.) there is consideration for the grant. I am not an expert on other open source licenses, but they may merely be a form of promissory estoppel (i.e., you are estopped from bringing suit because you promised not to sue if the person behaves in a certain fashion). But the terms "offer", "acceptance", "grant", "consideration" are used in this license. And it is a binding contract. There was an article on this not too long ago on Groklaw, IIRC. Let me see if I can find it. If it's on some of the other open source "licenses" it may not be applicable in the slightest to the OGL. Still, I'd like to see what you come up with. Maybe somebody has a theory that: offer + acceptance + grant + consideration != contract. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
On 2 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can declare Product Identity (Thi: The OGL _is_ a contract. It's not a contract. Neither I nor WotC had to sign anything when I use it. It's a license. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 11:39:31 AM Eastern Standard Time, [EMAIL PROTECTED] writes: But the terms offer, acceptance, grant, consideration are used in this license. And it is a binding contract. It is a conditional license with only one party identified by name. It is a license with terms, some of which outline situations by which the license can be terminated. That is not a contract. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 11:59:08 AM Eastern Standard Time, [EMAIL PROTECTED] writes: It's not a contract. Neither I nor WotC had to sign anything when I use it. It's a license. Contracts don't have to be signed they can be verbal. You can even have contracts which are engaged in without speech as long as there is offer+acceptance+grant+consideration+a meeting of the minds as to the terms of the agreement. You and I can enter into a contract over the phone with no signatures. That's still a contract. It is a license. Nobody is arguing that. But any agreement with offer + acceptance + grant + consideration should be a contract. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/2/2005 12:01:10 PM Eastern Standard Time, [EMAIL PROTECTED] writes: It is a conditional license with only one party identified by name. It is a license with terms, some of which outline situations by which the license can be terminated. That is not a contract. It is a unilaterally drafted contract of adhesion. The fact that it has termination clauses does not make it not a contract. Some licenses are contracts. Some are merely promissory estoppel. This one is a contract. Contracts have the following nature: 1) they are an agreement between two or more parties; and 2) there is a meeting of the minds as to the terms of the agreement; and 3) both parties (overtly or by their behavior) express an intent to be legally bound by their agreement; and 4) an offer is made; and 5) the offer is accepted; and 6) there is either a promise for a promise, or a promise for an action, generally resulting in a typical contract of a grant in exchange for some form of consideration for that grant That's basically the simple definition of a contract. It doesn't have to involve signatures. It doesn't have to involve negotiations (such as when you walk up to a barber, sit in the chair, get your hair cut, and hand him $20.00 in silence). It has to involve the above steps to be covered under U.S. contract law and typically under the uniform commercial code of most states. If you disagree with me, find me a basic book on Contract Law that would go through the above steps and then say the result is not a contract. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
Here we go.. I finally found the Groklaw link I was looking for, but before posting it, here is an except from the article... Here is a definition of 'license' from Steven H. Gifis' Law Dictionary, 2d Edition: LICENSE: A right granted which gives one permission to do something which he could not legally do absent such permission; 'leave to do a thing which the LICENSOR [the party granting the license] could prevent.' A contract, on the other hand, is defined like this: [1] a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. I Williston, Contracts Section 1. The essentials of a valid contract are 'parties competent to contract, a proper subject- matter, consideration, mutuality of agreement, and mutuality of obligation.' 286 N.W. 844, 846: 'a transaction involving two or more individuals whereby each becomes obligated to the other, with reciprocal rights to demand performance of what is promised by each respectively.' 282 P. 2d 1084, 1088. 'The total legal obligation which results from the parties' agreement as affected by law.' U.C.C. Section 1-201. For the full article go here -- http://www.groklaw.net/article.php?story=20031214210634851 TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
From your own article, Tim (on the GPL): Why isn't it a contract? Because there are no further agreed-upon promises, no reciprocal obligations... Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work The essentials of a valid contract are 'parties competent to contract, a proper subject-matter, consideration, mutuality of agreement, and mutuality of obligation.' >From Lee: You got to read the whole article you posted, Tim, and read it more closely. If the GPL had consideration for the grant and the above factors, it would be a contract. Not all shrinkwrap licenses are considered binding contracts. The GPL (I'm no expert on it) if lacking any of the essential elements, would not be a contract. I've already said not all licenses are contracts. Some are grants and promissory estoppel. Some ARE contracts. If the above requirements are met, then the license is also a contract. Am I clear that there are two types of licenses: a) grants + promissory estoppel; and b) contracts (with exchanges of promise for a promise or promise for an action + offer + acceptance + grant + consideration + meeting of the minds). The GPL is probably a license of type "a". The OGL has all the essential elements of a contract (VERY VERY VERY different from the GPL in that respect) and so is a contract as well as a license. Licenses of type "a" are enforceable by traditional copyright law. You have no right to use the copyrighted work without permission. Type "a" licenses are permission, and when you go outside the permission, you are simply engaging in copyright infringement without promissory estoppel to protect you. Licenses of type "a" do not ask you to give up anything in return, they just tell you the only way you are permitted to use a grant. Type "b" licenses have consideration (like "you will not claim compatability with me, which you normally entitled to do as a matter of fair use") and failure to uphold to those elements (like if I start making games and claiming compatibility with your work) result in contractual breaches which are actionable as a matter of contract law. Tim, your own article spelled out what a contract is and then said the GPL wasn't one because it lacked specific elements common to contracts. It didn't say, "no license in the world for intellectual properties is a contract." Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
1) Acme Games publishes a non OGL roleplaying game with no OGC declared. 2) Several years later WotC bring out the OGL and Acme Games joins the OGC community. 3) Someone at Beta Games phones up the guy that runs Acme Games and says: I've been looking at some of your old stuff and there is something there that I'd really like to use in one of my products. 4) The head of Acme Games says: I don't mind you using it, but I don't want to have to go to the expense of republishing it under the OGL. However, as long as you promise to declare X,Y and Z as PI for me, you can use it. Wouldn't this then mean that Beta Games would be making PI declarations on behalf of Acme Games? Beta Games would then be a third party that benefits from the protection of the OGL. Is this the sort of thing you are getting at? If that is what he is talking about, I have already done it a bunch of times. Any time you use content under license, you are most likely going to be doing something like that. For example, our Judges Guild products and our Grimtooth's Traps book. In those books I declare PI content that I am using under license. I dont see any logical or legal prohibition to doing this. Clark = ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
I can't speak for American law, but my lawyer up here in Canuckistan told me it's not a contract but a license with terms of limitation when I did my initial review of the OGL and d20 STL with him. In a sense, both are right. From a big picture view, any time two people (or more) agree on things for their mutual benefit, whether orally or in writing, you can consider it a contract and analyze it under contract law. That is just a sweeping generalization. Saying the OGL is a license is just a more specific and precise way to describe the nature of the relationship. By the way, I love Canukistan. That is hillarious. I am stealing that, I hope you dont mind :) Clark = ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
Wow. Ignore my last post about contract and license. I didnt know this discussion had gotten this technical. I see we are way beyond the generalities I was speaking in in the last post. Clark --- [EMAIL PROTECTED] wrote: In a message dated 3/2/2005 12:53:25 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I can't speak for American law, but my lawyer up here in Canuckistan told me it's not a contract but a license with terms of limitation when I did my initial review of the OGL and d20 STL with him. Were it not for the requirement to waive your fair use rights I'm not certain it would be a contract. It would simply be a grant with limitations on it. That's the primary form of consideration that's being given up. Now, on law school exams profs can fib, and call things consideration when they aren't really consideration. So the mere fact that the contract says offer, acceptance, grant, consideration is there to color this like a contract. The only question is whether waiving your fair use rights is a valid form of consideration. If it is, then it's a contract. If that's deemed to be not really consideration then it's a license that acts as a grant + promissory estoppel. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l = ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
By the way, I love Canukistan. That is hillarious. I am stealing that, I hope you dont mind :) I'll grant you a limited license ;) ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
LOL. So are you saying you are declaring that as PI? :) And if so, is that automatically declared because it is a product name, or is that enumerated PI? :) Oh and are you declaring that as a part of a work or are you endorsing the anyone in the world can just say something is PI and it is PI even if not in a work school of though? You marvelous bastard ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
Are there rights for third party beneficiaries under the license? I would think that a third party could sue a publisher to challenge Section 5, Representation of Authority to Contribute. They could argue that the publisher did not have authority to contribute because they don't own the material in question and don't have a license to use it. Really it would fall under copyright law, but if it were me I would name the infringing product AND Section 5 as a breach of copyright law. The owner isn't exactly suing for a breach of the OGL, but the owner is suing because the infringing publisher's representation that they own the material in the OGL is a second example of illegal use of the copyrighted material. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/1/2005 11:14:26 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Section 2 - The license only applies to OGC released under the license. How does a third party designate PI without releasing OGC? Good eye. That doesn't quite answer Chris' other implication that once something is PI, it is PI to everyone everywhere, even if they aren't a party to a particular instance of the OGL. I think my most recent posts would apply there. But good eye on the general point. Copyright is a little vague, but trademarks are clearly eligible to be Product Identity (or viable as you put it). However, trademarks are not product identity until the two conditions are met that the PI must be clearly marked as such and it must be excluded from OGC. Therefore, the OGL only says it is off limits within the context of the OGL if the material meets those conditions. It may still be off limits as defined by copyright and trademark laws, but that is outside the OGL. Things that are copyrightable seem to be PI eligible (like lists of spell names). I'll buy that it's a little vague, and in need of rewording. The license seems to overtly allow for it, but the fact that the section is called "Product Identity" is what casts doubt over things a very little bit for me. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
From: Chris Helton Have you ever heard of copyright and/or trademark infringement? It happens all the time, and all that the OGL does is hardwire it into the license. The OGL doesn't define copyright and trademark infringement. It only says that trademarks are also eligible to be PI if marked as such. It then says what you can and can't do with PI. The license also says that you can't use trademarks to indicate compatability without express permission to do so. At no point does the OGL even attempt to identify infringing uses of copyright or trademarks under US law. And yes, by registering something as copyright or a trademark you are creating product identity, whether you have anything to do with the OGL or not. I disagree. PI only has meaning within the context of licensed works. If I use copyrighted material or a trademark in my OGL work, you can sue me for copyright or trademark infringement, not for breach of the OGL. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
-Original Message- From: Chris Helton For the last time, I have never said that PI doesn't have to be identified. Saying that there is other forms of PI (as defined be the license) does not mean that you do not have to declare PI. That is just not the only type of PI that a publisher has to be congizent of. Well, you've lost me too. The license says that any material that is eligible to be PI must be declared to be PI and must be excluded from OGC to actually be PI. It must also appear in a work licensed under the OGL to be covered by the OGL. Under what conditions can something be PI without meeting these conditions and being covered under the OGL? ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
--- Weldon Dodd [EMAIL PROTECTED] wrote: Well, you've lost me too. The license says that any material that is eligible to be PI must be declared to be PI and must be excluded from OGC to actually be PI. It must also appear in a work licensed under the OGL to be covered by the OGL. Under what conditions can something be PI without meeting these conditions and being covered under the OGL? Ok, again...from section 1(e) of the Open Gaming License this is the definition of Product Identity: 'Product Identity' means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content This is the definition of Product Identity that I have been using all along. You will notice that since it contains the phrase and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content that I do understand that declared PI is a part of PI. What I have been saying, and I am not sure how much more clearly I can say it, is that the PI declaration is not the only PI that exists under the OGL. And then, from section 7 (Use of Product Identity): You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity. You will notice that this section does not only include PI that has been declared to be so, but actually anything that is defined as PI under section 1(e) of the license. This is all that have have been saying all along. You will notice that by saying this I am not stating that PI does not need to be declared, nor am I saying that there is a gigantic pool of PI anyplace, nor am I saying that there is one true way to declare PI. I have never made those statements, and in fact I am stating what I read in the OGL. None of these stances or staements have changed since I started addressing this subject. Once again, I will state that I am not trying to impose my interpretation of the OGL on anyone and that what I am interpresting only has to do with me. Thanks, Chris ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
In a message dated 3/1/2005 12:20:38 PM Eastern Standard Time, [EMAIL PROTECTED] writes: What I have been saying, and I am not sure how much more clearly I can say it, is that the PI declaration is not the only PI that exists under the OGL. Weldon, he seems to now be claiming that: a) only trademarks need to be declared as PI; and b) everything else that is PI eligible is PI even if it's not declared. Imagine that only poses and trademarks are PI eligible. He's reading the definition to say: "PI means any trademarks clearly declared as PI and all poses." As opposed to: "PI must be declared as 'Product Identity' to be considered PI. The only things that you can declare as PI are your poses and trademarks." The sentence's punctuation is open to multiple constructions. The former reading I have eschewed simply because it makes it MORE work to protect a trademark than a pose, and trademarks are almost the definition of "Product Identity", so I find that reading labored. I think the second reading is closer to the intent of the contract since the contract says explicitly that everything in the work covered by the license is OGC if it ain't PI, and so you are required to demarcate the line between PI and OGC to make it very clear. Chris also seems to think (and I say _seems_ 'cause I have no notion what Chris actually think any more) that the license has third party beneficiaries with enforceable contractual rights -- people who can sue you for breach of the OGL because they have intellectual properties from the PI list which are protected as PI (except for trademarks for some reason) even if they don't mark them as PI. nor am I saying that there is a gigantic pool of PI anyplace, No, that's just the logical implication of having undeclared PI by everyone who has ever drawn a pose or used language having contractual rights to sue for breach against anyone who has agreed to use the OGL. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)
From: Tim Dugger [EMAIL PROTECTED] Subject: Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?) On 28 Feb 2005 at 21:47, [EMAIL PROTECTED] wrote: However, there's nothing saying explicitly that PI has to be declared by anyone in particular. I was thinking that you had to be a party to the contract to declare PI, but then I asked myself this question: can a third party beneficiary declare PI without actually being a party to the contract or an assignee. Not exactly sure what you are saying (an example would have been nice - hehe), but I will respond to what I think you are saying. I'm not sure what he was saying. I've got an idea of a situation where there could be a third party that wants stuff declared as PI but hasn't published the document it is in under the OGL. Maybe you could tell me if this is the sort of thing you are talking about. 1) Acme Games publishes a non OGL roleplaying game with no OGC declared. 2) Several years later WotC bring out the OGL and Acme Games joins the OGC community. 3) Someone at Beta Games phones up the guy that runs Acme Games and says: I've been looking at some of your old stuff and there is something there that I'd really like to use in one of my products. 4) The head of Acme Games says: I don't mind you using it, but I don't want to have to go to the expense of republishing it under the OGL. However, as long as you promise to declare X,Y and Z as PI for me, you can use it. Wouldn't this then mean that Beta Games would be making PI declarations on behalf of Acme Games? Beta Games would then be a third party that benefits from the protection of the OGL. Is this the sort of thing you are getting at? If it is then I can't see how allowing the OGL to be used in *this* way is damaging. Beta Games is benefiting from getting content from Acme Games without the associated development costs. Acme Games is benefiting because their PI is being protected without them having to republish. On the other hand if someone was to say that doing this would somehow strip Acme Games of any rights to declare anything in the stuff they allow Beta Games to use as PI then it *would* be damaging. Acme Games would then have three choices: * Refuse to help out Beta Games in order to protect their PI. * Allow their content to be reused and forfeit any ability to protect the PI if they later want to publish a second edition of the setting under the OGL. * Publish a new product, under the OGL, containing whatever Beta Games wants to use. So if this is your interpretation of how the law works, we could end up with a lot of publishers refusing to help their friends because they are too scared of loosing rights to stuff that would be PI if the product was published today. That is not good for players, publishers or anybody because the content never sees the light of day. Alternatively we might end up with publishers engaging in the farce of sticking a block of text from a 10 year old product into a letter then sticking a copy of the OGL on the end and a PI/OGC definition onto the front! :-O In fact if that is the only way to allow people to use copyrighted stuff that isn't protected by the OGL, I could even imagine somebody getting stationary printed with the OGL on it to save time! ;-) Section 15 entries would then contain pairs of things like: Old Role Playing Game - Copyright Acme Games 1972 You Can Use Our Old Role Playing Game Letter - Copyright Acme Games 2005 Forgetting what the OGL says for a moment (because nobody seems to actually know exactly what it means - LOL) isn't it logical that something that is included in an OGL product, that has been created by another company should be declarable as either PI or OGC on their behalf. This could apply outside the RPG industry as well. If I was to sit down and create an d20 Aliens product, why would I not be able to declare the name Rebecca 'Newt' Jordan to be Product Identity of 20th Century Fox instead of Product Identity of myself? Mind you, for all I know you might have intended a totally different third party situation. Maybe you should give us that example after all. David Shepheard Webmaster Virtual Eclipse Science Fiction Role Playing Club http://virtualeclipse.aboho.com/ http://uk.groups.yahoo.com/group/virtualeclipselrp/ ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
