Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
[EMAIL PROTECTED] wrote: However, there's nothing saying explicitly that PI has to be declared by anyone in particular. I was thinking that you had to be a party to the contract to declare PI, but then I asked myself this question: can a third party beneficiary declare PI without actually being a party to the contract or an assignee. Ugh! This discussion festered up in the wake of an observation about whether you are bound by the PI in the SRD if you don't quote OGC from the SRD and include it in your Section 15. Thoughts? Comments? Yeah, one: i'm not convinced you're bound by the PI declaration in the D20SRD even if you directly use material from it, since i'm not convinced it's a valid PI declaration. Nor am i convinced that it's an invalid PI declaration--though i lean more in that direction. But, on your specific question: If, as i am all-but-convinced, PI is defined as being a subset of OGC, then any PI declaration that does not include OGC is meaningless--saying all the stuff that looks like this and is part of OGC is PI; there is no OGC pretty much answers the question on its own. Just like the D20SRD PI declaration, in a fair world where how much lawyer you could afford didn't matter, a PI declaration in a work with no OGC (whether or not it has a WotC OGL attached) would be meaningless. That's IMHO, and IANAL. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
Chris Helton wrote: Can you please quote the section of the OGL where it says what you are trying to say it says? You can believe my reading or not, however the OGL supports what I am saying about Product Identity. Issues of back cover blurb fonts and the such are nothing but nigglings to try to prove a point by moving to its illogical extreme. Definitions of whether or not Product Identity existing outside of the OGL is irrelevant, if you are publishing under the OGL that is the legal definition that you have to use. There is nothing in the license itself that says anything about having to declare PI, that is defined by section 1 of the license. Look, dismiss my interpretation all that you want. All that I am doing is basing this only on my reading of the document at hand. Frankly, as a publisher, I would rather have a conseervative interpretation that doesn't bite me on the ass than something that can open me to potential liability, with the end result of having to destroy product or open myself to possible litigation. I'm not asking anyone to take my definition of the OGL, and I don't really care if you don't. However, you have not created any reasonable doubt to cause me to have to rethink my interpretations. It is generally agreed, that the definitions of PI and OGC in the WotC OGL are (1) what *can be* PI/OGC, not necessarily what is [except for the anything already declared OGC part], and (2) exemplary, not definitive. So, it's not saying that those things automatically *are* PI, but that they can be PI. Ryan, the guy behind the license, has said as much. That is certainly how most publishers are using it. Now, i agree with you, however, that that isn't what the license actually *says*. My honest opinion of the license? Read literally, it is self-contradictory, vague, and impossible to abide by as a result. Read in the spirit of the various clarifications offered by the WotC FAQ, Ryan Dancey, and various members of this list, and with generous acceptance of the intended use of the license, you get the current state of D20 System publishing. Only through consensual interpretation is teh license functional. It is, AFAIK, an unanswered question what happens if you get into court and both parties to a contract agree to treat a contract as saying one thing, when it actually says another. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
Chris Helton wrote: But what you said above is what I am tryign to say. You don't have to be bound by the OGL to make a declaration of PI. Basically if something has been copyrighted or trademarked, that makes it a viable Product Identity as the OGl defines it. Which means that it is of limit. As long as something meets the definition of Product Identity by the OGL it is PI. One of the things that Darklord seems to be missing are the uses of the cunjunction and in the license. These definitions of PI are not either/or, but instead they are a list of different objects. So, let me see if i understand you rightly. You're saying that 1) anything that is (A) on the PI-example list and (B) declared as PI, is PI, even if the work is not governed by the WotC OGL 2) declaring a trademark or copyright is tantamount to declaring 3) therefore, if it has a copyright notice, and is on The List, it's PI, as far as anyone working under the WotC OGL is concerned Is that a reasonable restatement of your position? Would it make any difference to you if the guy behind the license told you that the list of things in the PI definiton is exemplary, not definitive--it's a list of things that *can be* PI, not a list of things that *are*? ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/3/2005 3:56:31 AM Eastern Standard Time, [EMAIL PROTECTED] writes: It is generally agreed, that the definitions of PI and OGC in the WotC OGL are (1) what *can be* PI/OGC, not necessarily what is [except for the "anything already declared OGC" part], and (2) exemplary, not definitive. I agree. One thing that struck me, after I sent a message offlist was this. If the only type of PI which may be declared voluntarily are some handful of trademarks, then all the other stuff on the PI list would be non-voluntary. Anything that automatically occurs 100% of the time is, by definition, not voluntary. Thus all the stuff on the eligibility list (except certain types of trademarks) would ALWAYS be PI (since it would not be a declaration mechanism that determines what is or is not PI, but a list which is always true). You could then never declare that stuff as OGC without violating the license since some things would be both OGC and PI (and they are exclusive of each other). I have always held that the only way to read the clauses saying OGC and PI are exclusive of each other and the one line that says PI may appear in OGC is to assume the word "in" works like "a boat is in the ocean" where "in" means surrounded by (i.e., the boat is not the ocean and the ocean is not the boat, but the boat is in the ocean -- any other reading violates the exclusivity clauses). The only way that most of those things on the PI list can be declared OGC without being also PI is if there is a wholly volitional process which is put into place to separate those two as the owner of the copyrights and trademarks sees fit. Now, I will, 100% admit, that the language of the PI section is vague, at best, and is subject to Chris' interpretation when taken by itself. It just is. In the context of the whole license, however, it seems either that Chris' interpretation violates other parts of the license as well as possibly violating the intent of the license. So, either Chris is wrong, or, if the rules of legal construction of antecedents in a semicolon laden list say not that it is vague but that there is one and only one way to read the sentence, then I yield quite willingly to Chris' superior grammatical skills and declare that the license doesn't work as intended. Ryan, the guy behind the license, has said as much. That is certainly how most publishers are using it. Ryan's opinions matter less than industry usage. If WotC got in a scrap over a vague usage and the guy on the other side disagreed with them, contract construction says that vague sections are construed AGAINST the drafting party, particularly for contracts of adhesion. If Ryan's opinion is consistent with WotC's opinion, then contrary opinions would, unfortunately, hold more weight on that basis alone. However, industry usage is a public policy concern and a means of adjudicating intent of the signatories (I use "signatories" loosely hear to mean Contributors) to a contract. Read literally, it is self-contradictory, vague, and impossible to abide by as a result. I think there are ways to read it literally and still do away with MANY of the self-contradictory parts (see my reading above regarding OGC != PI and yet PI can be IN OGC). Rules of contractual construction say that you have to pick readings when considering vague sections that give effect to all the parts of the contract, if possible, without rendering them null and void. I think in that light, then a lot of the self-contradictory parts go away. Not all the vague parts go away, though. It is, AFAIK, an unanswered question what happens if you get into court and both parties to a contract agree to treat a contract as saying one thing, when it actually says another. If both parties agree to interpretations that go against the express language of the license their opinions _might_be_ largely ignored unless they are the only parties to a contract. If their interpretations go against industry standards but act as a point of agreement to help resolve the dispute between those two parties, then the adjudicating court can issue an unpublished decision (which has no precedential value at the appellate level) so that future courts can reconsider the issue anew. IANAL YMMV Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/3/2005 3:57:03 AM Eastern Standard Time, [EMAIL PROTECTED] writes: PI declaration in a work with no OGC (whether or not it has a WotC OGL attached) would be meaningless. That's IMHO, and IANAL. Certainly the person would NOT be a party to the contract. The license says that the Contributors give YOU a grant. If somebody is declaring PI without giving me a grant which I accept, then I have received no grant for my consideration, so my consideration is not due. No contract between that person and me. In that case, only if the intent of the contract were to allow for third party beneficiaries who are, in no way publishing under the OGL, would such PI declarations hold any weight. And I'm not sure that it is the intent of the parties using the license that third party beneficiaries who are not directly or indirectly involved in the OGL by publishing OGL products should be able to make PI declarations that bind OGL users worldwide. But, on your specific question: If, as i am all-but-convinced, PI is defined as being a subset of OGC, then any PI declaration that does not include OGC is meaningless 1) I am convinced that they meant PI to be a subset of OGC and botched the job with the exclusionary clauses (OGC excludes PI and vice versa, which disallows PI as being an OGC subset); and 2) Where PI merely unlicensed I would immediately agree with you that it is simply to mark what is not licensed, however, the restrictions on PI usage seem to be broader than merely marking unlicensed material 3) as I just posted, the only way PI and OGC can be wholly exclusive while having "PI in OGC" is if PI is the same type of "in OGC" as a boat can be "in" the ocean, where the boat and the ocean are mutually exclusive and where "in" means "surrounded by" instead of "part of". The one thing that clouds this whole bloody issue is the clause in the license that says it applies only to the OGC. Because the license even is scoped to cover compatibility declarations made "in conjuction with" OGL'd products, it seems to cover a heckuva lot more than just OGC. So, I've been forced to construe the term "applies" to mean "is a grant of". "This license IS A GRANT OF the OGC". Alternately, one can read the "applies" usage as effectively a truism. By covering OGC of course the license applies to OGC. It also could apply to PI, to compatibility declarations, to use of contributor credits (even if they are not PI), etc. Note that the term "only" does not appear in front of "applies" Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
On Mon, 28 Feb 2005 [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. Unlike copyrights, trademarks, and patents, Product Identity of the sort described in the OGL has no legal existence outside of the OGL. The OGL serves, in many ways, as a replacement for or an addition to existing copyright, trademark, and patent laws and practices -- but only within the context of the license. Let's take a more ridiculous example. Say someone publishes a novel that has nothing to do with gaming. Say someone else publishes a different novel that has nothing to do with gaming, and he uses a similar font for the back-cover blurb. Can the first publisher complain about the second publisher's Product Identity breach? I'd say no, since neither product is publisher under the only license in which the concept of Product Identity exists. Now how is that different from the situation where one publisher is party to the license but the other one isn't? 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 Party Beneficiaries?)
On 28 Feb 2005 at 19:38, Chris Helton wrote: The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity. This is the key phrase here - The owner of any Product Identity used in Open Game Content. As Spikey points out, outside of the OGL, Product Identity does not have a true legal context. The emphasis should be put on You agree not to use any product Identity as all of the rest is just icing. Okay, sure. In that case, I'll just claim that all fonts are my Product Identity, and thus nobody could ever print anything ever again. heheh Seriously though, the license, in context to itself, describes what IT (the OGL) considers to be Product Identity. And please note that it describes PI as being part of or included in Open Game Content. It lumps together many things normally under very different laws (trademarks and copyrights) as a single item for the express purpose of taking and marking certain items within a product of Open Game Content as off-limits. If a person is not using the OGL, then they cannot claim Product Identity because they have no Open Game Content in which to mark things off-limits. TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 12:28:05 AM Eastern Standard Time, [EMAIL PROTECTED] writes: First of all, section 2 says "No terms may be added to or subtracted from this License except as described by the License itself. Actually, the alternate reading which CJH seems to have doesn't seem to even involve people who have signed onto a particular version of the OGL. That's why I raised the subject of third party beneficiaries to see if you think they are implied. I don't think that they are. Most times, third parties to contracts are explicitly named in the contract Right, which is the reason why I am not reading the contract the way CJH is. I tend to think you have to be a party to a SPECIFIC INSTANCE of the OGL in order to declare viable PI. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 5:56:56 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Unlike copyrights, trademarks, and patents, Product Identity of the sort described in the OGL has no legal existence outside of the OGL. Nobody said it did. I'm trying to see if CJH has any supportable argument. The ONLY way I can see that a person who is not a party to a specific instance of the OGL declaring anything is if that person is not a party but IS a third party beneficiary. It's not a question of whether the OGL is granting the right. The question is whether that right (to declare PI) is given ONLY to parties (which I instinctively feel it was intended to do) or whether a third party to the contract can declare PI. I'd say no, since neither product is publisher under the only license in which the concept of Product Identity exists. A third party beneficiary isn't a party to a contract. He's a beneficiary of the contract. I'm trying hard to see CJH's point, to see if there's a loophole in the contract. He's right, in part that the PI section doesn't say explicitly who declares PI. However, the law would (to the best of my understanding) allow only two types of people to have standing to interact with a contract typically: a) a party to the contract; or b) a third party beneficiary of the contract Now how is that different from the situation where one publisher is party to the license but the other one isn't? Because in my question, I'm addressing third party beneficiaries and you are assuming them away, treating people as parties or non-parties. I don't think the license allows for third party beneficiaries in the OGL, and I'm getting the sinking feeling either nobody else does. I was trying honestly to see CJH's point. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 2/28/2005 10:39:55 PM Eastern Standard Time, [EMAIL PROTECTED] writes: if you read the definition of what constitutes product identity in the OGL it goes beyond just a declaration of your individual PI in a product. No, it really doesn't address the scope at all. It just says that PI declared as PI is PI. That doesn't answer the key question: Can a non-party to the contract declare something as PI? Under U.S. contract law, you aren't typically obligated to non-parties to a contract unless they are third party beneficiaries of the contract, and those tend to be explicitly named. Since this section doesn't explicitly suggest that there are third party beneficiaries, I'm assuming that one has to be a party to a given instance of a contract as a Contributor to declare enforceable PI. CJH -- you are missing a key point. If some third party can declare PI, they are the only ones that can enforce my violation of their PI. They can do that in one of two ways: a) they are a party to the contract; or b) they are a third party beneficiary. End of story. If they aren't a state actor, then this is the only way a private citizen has a right of action in a breach of contract suit generally. If the person isn't listed as a contributor, they aren't part of the grant/consideration process and aren't a party. If they aren't a party, they are, at best, a third party beneficiary. Does the license support the notion of third party beneficiaries? I don't think so. I _do_ think it's vague in the area and should be redrafted for this and umpteen other reasons. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
--- [EMAIL PROTECTED] wrote: No, it really doesn't address the scope at all. It just says that PI declared as PI is PI. That doesn't answer the key question: Can you please quote the section of the OGL where it says what you are trying to say it says? You can believe my reading or not, however the OGL supports what I am saying about Product Identity. Issues of back cover blurb fonts and the such are nothing but nigglings to try to prove a point by moving to its illogical extreme. Definitions of whether or not Product Identity existing outside of the OGL is irrelevant, if you are publishing under the OGL that is the legal definition that you have to use. There is nothing in the license itself that says anything about having to declare PI, that is defined by section 1 of the license. Look, dismiss my interpretation all that you want. All that I am doing is basing this only on my reading of the document at hand. Frankly, as a publisher, I would rather have a conseervative interpretation that doesn't bite me on the ass than something that can open me to potential liability, with the end result of having to destroy product or open myself to possible litigation. I'm not asking anyone to take my definition of the OGL, and I don't really care if you don't. However, you have not created any reasonable doubt to cause me to have to rethink my interpretations. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 9:32:45 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Can you please quote the section of the OGL where it says what you are trying to say it says? You can believe my reading or not, however the OGL supports what I am saying about Product Identity. Issues of back cover blurb fonts and the such are nothing but nigglings to try to prove a point by moving to its illogical extreme. Definitions of whether or not Product Identity existing outside of the OGL is irrelevant, if you are publishing under the OGL that is the legal definition that you have to use. There is nothing in the license itself that says anything about having to declare PI, that is defined by section 1 of the license. Look, dismiss my interpretation all that you want. All that I am doing is basing this only on my reading of the document at hand. Frankly, as a publisher, I would rather have a conseervative interpretation that doesn't bite me on the ass than something that can open me to potential liability, with the end result of having to destroy product or open myself to possible litigation. I'm not asking anyone to take my definition of the OGL, and I don't really care if you don't. However, you have not created any reasonable doubt to cause me to have to rethink my interpretations. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
Some Quotes: (e) Product Identity means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content; 7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity. -- I think what Chris is saying is a perfectly reasonable interpretation of product identity. Considering a 'White out' interpretation of Product Identity as it relates to OGC, you're essentially looking at what makes it possible to do licensed products. I take a quote from a couple of pages out of (for example's sake) Anne McCaffrey's latest book in my brand new D20 Pern title. As the owner of said Product Identity, she would be the one who issues the PI declaration for those pages, not me who is working solely on the rules section. On the other hand, you're looking at some 'for the court' ground if someone decides to go in 'after the fact' as it were to try and sabotage a prior work. For instance, last year I went in and created the Parn D20 game where in I 'unknowingly' used some characters and thematic elements that were revealed after the fact to be quite similar to the Pern stuff. I also labeled all that stuff as Open Gaming Content. Would it be possible to for Anne McCaffrey to come back and say 'No no, you can't use this.. it's my product identity, here's the PI declaration'. To be honest, this might be a preferable 'out' for me as otherwise my product would be in direct breach of the OGC, where as in this case a new PI declaration comes into effect. Two big snags here though. 1. The onus to clearly identify 'Product Identity' is on the owner of the product identity, not on the creator of the OGC. 2. There is the change of 'frivalous' uses of after the fact PI declarations. Chris Helton wrote: --- [EMAIL PROTECTED] wrote: No, it really doesn't address the scope at all. It just says that PI declared as PI is PI. That doesn't answer the key question: Can you please quote the section of the OGL where it says what you are trying to say it says? You can believe my reading or not, however the OGL supports what I am saying about Product Identity. Issues of back cover blurb fonts and the such are nothing but nigglings to try to prove a point by moving to its illogical extreme. Definitions of whether or not Product Identity existing outside of the OGL is irrelevant, if you are publishing under the OGL that is the legal definition that you have to use. There is nothing in the license itself that says anything about having to declare PI, that is defined by section 1 of the license. Look, dismiss my interpretation all that you want. All that I am doing is basing this only on my reading of the document at hand. Frankly, as a publisher, I would rather have a conseervative interpretation that doesn't bite me on the ass than something that can open me to potential liability, with the end result of having to destroy product or open myself to possible litigation. I'm not asking anyone to take my definition of the OGL, and I don't really care if you don't. However, you have not created any reasonable doubt to cause me to have to rethink my interpretations. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 10:07:29 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Considering a 'White out' interpretation of Product Identity as it relates to OGC, you're essentially looking at what makes it possible to do licensed products. That's not what Chris is saying as best I understand him. He is saying that all that stuff on the PI eligibility list is 100% PI, 100% of the time, whether or not it is declared, and whether or not the stuff belongs to a party to specific instance of the license. If Anne McCaffery isn't a party to the OGL she can't declare anything as PI. She can authorize you (who are a party to the OGL) to declare it on her behalf, but SOMEBODY has to be bound by the OGL to make the declaration. Either Anne is bound by it, or you, as her agent, are bound by it. She can't, as a third party, without you intervening and publishing under the OGL, say: "I'm not using the OGL, and I'm not authorizing anyone to use my works with the OGL, but all my stuff is Product Identity". That's what Chris is claiming, because he's claiming that anyone, anywhere, at any time, can declare something as PI and bind you by their declaration even if they are not a party to any version of the OGL anywhere. Chris has gone further and questioned whether they have to actually declare their PI for it to be PI. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
I don't think you really need to be bound to the OGL in order to make a declaration of PI. The license seems to only indicate that you have to be the owner of the PI in order to make that declaration. On the other hand, the license does require a 'clear declaration' of that PI. Obviously the clearest declaration is inside the work itself but some form of mass publication could be ruled as sufficient. *grin* So in conclusion I disagree with both of you. [EMAIL PROTECTED] wrote: In a message dated 3/1/2005 10:07:29 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Considering a 'White out' interpretation of Product Identity as it relates to OGC, you're essentially looking at what makes it possible to do licensed products. That's not what Chris is saying as best I understand him. He is saying that all that stuff on the PI eligibility list is 100% PI, 100% of the time, whether or not it is declared, and whether or not the stuff belongs to a party to specific instance of the license. If Anne McCaffery isn't a party to the OGL she can't declare anything as PI. She can authorize you (who are a party to the OGL) to declare it on her behalf, but SOMEBODY has to be bound by the OGL to make the declaration. Either Anne is bound by it, or you, as her agent, are bound by it. She can't, as a third party, without you intervening and publishing under the OGL, say: I'm not using the OGL, and I'm not authorizing anyone to use my works with the OGL, but all my stuff is Product Identity. That's what Chris is claiming, because he's claiming that anyone, anywhere, at any time, can declare something as PI and bind you by their declaration even if they are not a party to any version of the OGL anywhere. Chris has gone further and questioned whether they have to actually declare their PI for it to be PI. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
--- avatar of Darkness [EMAIL PROTECTED] wrote: I don't think you really need to be bound to the OGL in order to make a declaration of PI. The license seems to only indicate that you have to be the owner of the PI in order to make that declaration. On the other hand, the license does require a 'clear declaration' of that PI. Obviously the clearest declaration is inside the work itself but some form of mass publication could be ruled as sufficient. I'm not really sur what Darklord is claiming, because the longer he argues the less it seems to me that he seems to even understand what the OGL is about. But what you said above is what I am tryign to say. You don't have to be bound by the OGL to make a declaration of PI. Basically if something has been copyrighted or trademarked, that makes it a viable Product Identity as the OGl defines it. Which means that it is of limit. As long as something meets the definition of Product Identity by the OGL it is PI. One of the things that Darklord seems to be missing are the uses of the cunjunction and in the license. These definitions of PI are not either/or, but instead they are a list of different objects. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 10:48:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes: You don't have to be bound by the OGL to make a declaration of PI. That's not the question. The question is whether a person making said declaration has any LEGAL STANDING to enforce his declaration under the license. If he does he is either: a) a party to the license (in which case he has obligations as well as benefits); or b) he is a third party beneficiary of the license (which I'm not certain that the license allows). I didn't even know you were a list member. I don't give a darn about debating with you here. I asked the question here to see what people thought about rights under heading "b" above. Are there rights for third party beneficiaries under the license? If not, then people can declare PI stuff all day, but unless they are a party to the license they can't sue for breach of contract. If so, then even if they aren't a party to the license they can sue for breach of contract. Which then breeds the possibility of every PI declaration in every location in the world being binding on everyone everywhere even if you've never seen the declaration. One of the things that Darklord seems to be missing are the uses of the cunjunction "and" in the license. These definitions of PI are not either/or, but instead they are a list of different objects. I'm not missing the conjunction "and". But to read it the way you do, it would say that Trademarks are PI only if clearly identified, and that everything else is PI even if not clearly identified. That is such a labored reading of the contract that I can't give it credence. It would effectively place a higher burden on protecting trademarks (which you would have to clearly identify) than it would on a character's pose (which you wouldn't have to clearly identify as PI by your reading). That seems to be a very strained and forced reading of the license. You are effectively reading it to say: PI is any clearly identified trademark and any of a number of other things whether or not they are clearly identified. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
--- [EMAIL PROTECTED] wrote: If you aren't bound by the OGL and you make a PI declaration, you can do it all day long until you are blue in the face. Again, you are showing your ignorance of the issues. Have you ever heard of copyright and/or trademark infringement? It happens all the time, and all that the OGL does is hardwire it into the license. And yes, by registering something as copyright or a trademark you are creating product identity, whether you have anything to do with the OGL or not. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
The thing that I think is throwing him off is your statement that I bolded below. In addition to the being part of the grand list, I feel that PI should be declared. That said, what you're saying actually harkens back to some 'old school' interpretations from before I started to zone out the hypothetical yammerings. Old School Interpretation: There are two forms of item in a OGL related work. Open Content which is copyrighted to its creator and shareable and Product Identity which was everything else (Copyrighted but not sharable). Publishers would make specific declarations of PI in the fronts of their books as an easy way to break it out from all of the OGC in addition to things like putting boxes around the OGC. Somewhere along the way the various discussions brought out the New School Interpretation: There are in fact three forms of material in an OGL work. Open content which is copyrighted to the creator and sharable, Product Identity which serves as a quasi-OGL only Trademark, and 'Other' which is the stuff that isn't covered by the OGL and falls under normal copyright laws. The thing is, Trademark gets its own special handling under the OGL which in some ways builds PI into its own category despite the fact that it includes trademarked material. I'm probably not being as clear as I could be but hopefully this will help you understand where some of this arguement is coming from. Chris Helton wrote: I'm not really sur what Darklord is claiming, because the longer he argues the less it seems to me that he seems to even understand what the OGL is about. But what you said above is what I am tryign to say. You don't have to be bound by the OGL to make a declaration of PI. Basically if something has been copyrighted or trademarked, that makes it a viable Product Identity as the OGl defines it. Which means that it is of limit. As long as something meets the definition of Product Identity by the OGL it is PI. One of the things that Darklord seems to be missing are the uses of the cunjunction "and" in the license. These definitions of PI are not either/or, but instead they are a list of different objects. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
Aren't you really just talking about plagarism and/or using someone else's work without their permission which would be bad even without the OGL's influence? [EMAIL PROTECTED] wrote: Now, the question becomes, without you intervening (and acting as Anne's agent producing an OGL covered work), can Anne, by herself, declare something as PI even though she's not a user of the OGL and, as a result, have standing in a U.S. court (or foreign court since she's overseas) to sue for a breach of her PI. Consider this -- consider that quoting a sentence from on of Anne's books is Fair Use. PI trumps fair use contractually and explicitly (in the no compatibility declarations section, for instance). If Anne can, without being a party to the OGL, PI all her books, including every sentence in them, then if you quote a sentence from her books and attribute it to her as flavor text she could sue for damages and relief under the license even though she's not a party to it. That's the logical conclusion that must be drawn from your claims here. That's why I asked if people thought that the PI declaration section is so broad that it allows for anyone, anywhere in the world to declare PI. If it does, and if that is binding on ALL parties to the OGL, then that means there's a giant growing cesspool of PI to which we are all bound, even if we've never read the PI declaration and even if we aren't listing the work declared as PI in our section 15. If that's the case, the license may eventually become either unusable or practically unenforceable. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 11:10:08 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Again, you are showing your ignorance of the issues. No, you are showing your ignorance of the issues. Breach of contract is a CONTRACTUAL matter. The topic of the thread addressed third party beneficiaries of a contract. Nobody questioned whether people have the rights to sue under trademark or copyright law to protect their properties. The question is do they have rights to sue for breach. Copyright and trademark suits can have certain administrative hurdles in federal court (such as filing registration papers for certain types of suits) that a breach suit might not have. It might be advantageous to bring a breach action in certain cases either instead of or in addition to traditional copyright and/or trademark claims. Have you ever heard of copyright and/or trademark infringement? It happens all the time, and all that the OGL does is hardwire it into the license. PI has certain protections under the license that arguably go above and beyond traditional IP protection. PI can prevent fair use which traditional IP laws cannot. And yes, by registering something as copyright or a trademark you are creating product identity, whether you have anything to do with the OGL or not. __ The license says clearly that something must be identified. Nobody in two different forums has agreed with you that PI doesn't have to be clearly identified. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 11:18:49 AM Eastern Standard Time, [EMAIL PROTECTED] writes: The thing that I think is throwing him off is your statement that I bolded below. For the record that was my version of what I thought he was stating. I don't, for one minute, believe that if someone doesn't declare something as PI that it is automatically PI because it is a pose or a spell name. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 11:21:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Aren't you really just talking about plagarism and/or using someone else's work without their permission which would be bad even without the OGL's influence? No, I was talking about fair use. Copying a one sentence quote from a book and attributing it properly is not theft. It's fair use. PI overrides fair use. Also the "no compatibility declarations" clause overrides fair use. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
--- [EMAIL PROTECTED] wrote: The license says clearly that something must be identified. Nobody in two different forums has agreed with you that PI doesn't have to be clearly identified. Attribute one more statement to me that I have not made and you will understand exactly how well I understand the law. For the last time, I have never said that PI doesn't have to be identified. Saying that there is other forms of PI (as defined be the license) does not mean that you do not have to declare PI. That is just not the only type of PI that a publisher has to be congizent of. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 11:32:04 AM Eastern Standard Time, [EMAIL PROTECTED] writes: My godyes! If you violate the definitions of Product Identity under the OGL then you are violating copyright and trademark lawas too. You can't use the IP (intellectual property) that doesn't belong to you. Dude, I'm not trying to be rude. I'm trying to be as polite and serious as I can. Do you understand the difference between standing to sue for breach of contract and standing to sue for copyright/trademark infringement? They are VERY different things. This thread is about contractual construction and the standing of third party beneficiaries to a contract. Or at least that's what I started it to discuss. I thought one of several points you raised was interesting and I came here to see if your idea had any credence. I stated I didn't believe it, but I was looking for counterarguments against my position that might be persuasive. Instead I found Weldon quoting Section 2 (should have thought of that myself) which pretty much spells out what the license applies to. That plus the post I just made on judicial analysis of third party beneficiary claims pretty much answers my questions to my satisfaction. The license doesn't anticipate third party beneficiaries except, possibly, through their agents (i.e., in a licensed product where the agent declares something as PI on behalf of someone else). If you aren't a party to the license and if you aren't an eligible third party beneficiary you have no legal standing to sue for breach of contract under the OGL. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can declare Product Identity (Thi: Aren't you really just talking about plagarism and/or using someone else's work without their permission which would be bad even without the OGL's influence? No, I was talking about fair use. Copying a one sentence quote from a book and attributing it properly is not theft. It's fair use. PI overrides fair use. Also the no compatibility declarations clause overrides fair use. Yes, using the OGL removes the Fair Use of copyright law. That is part of the exchange. Now, I could, in a non-OGL book, do small quotes and such from other products (whether those products are under the OGL or not), and be under the Fair Use clause of copyright law. However, if I were doing an OGL book, then by accepting the OGL, I am bound by its strictures, which include giving up Fair Use of other products (whether those products are OGL or NOT). It is part of the exchange of rights in the license. the user of the licence gives up certain things, in this case certain normal rights granted by copyright, in exchange for greater usage of material not nomrally allowed to be used under copyright law. TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 11:47:42 AM Eastern Standard Time, [EMAIL PROTECTED] writes: For the last time, I have never said that PI doesn't have to be identified I just posted 2-3 quotes from RPG.NET saying just the contrary. I'll post the links and the line numbers if you want to see them for yourself. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 3/1/2005 11:56:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Um...no. You can't override a law with a contract or a license. There are legal precedence for this. That depends on whether the law gives a waivable right. You have a right to walk in front of my house down the sidewalk. I can pay you $10.00 to avoid that stretch of pavement for a week. If you walk buy I can sue for breach. That is a right, but it is a waivable right. Sometimes in copyright law in particular it is often debated which rights, if any, are waivable. I would assume that there's no reason I cannot waive a fair use right. In fact, whenever I use the OGL that's exactly what I'm doing when I agree to the "no compatibility declarations" clause. Compatibility declarations, if handled appropriately, are nominally fair use. I waive my right to fair use of the trademark in exchange for something I want. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
On 1 Mar 2005 Chris scribbled a note about Re: [OGF-L] Who can declare Product Identity (Thi: PI overrides fair use. Also the no compatibility declarations clause overrides fair use. Um...no. You can't override a law with a contract or a license. There are legal precedence for this. Not quite correct. You can override Fair Use rights IF you accept a contract or license where you give up those rights in exchange for something else. TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
Tim, you asked for clearer examples and questions. I'll try to explain myself better, because I'd like to hear your take too. The fundamental question is: does someone not listed in your section 15 have rights to sue you under the OGL (not under copyright or trademark law, but under breach of contract)? One question has been debated ad nauseum before: is PI declared in games everywhere binding upon everyone, or just in the games where it appears section 15'd? My question now goes beyond that, and asks are there third party rights of law suit for people who aren't even signed on to any version of the OGL? If so, in what circumstances? The PI definitions section specifically says what constitutes PI, but doesn't say that you have to be a party to the licensing contract to declare PI. It says you just have to be the owner. Now, the simplest scenario is a licensed product. I go to Warner Bros. and ask for permission to make a licensed Teen Titans OGL covered product. I'm the one using the OGL, not them. Can they make me, as their agent in all this, declare all their stuff except the gaming bits, as PI -- they are declaring it through me, and I'm the one in the Section 15? Can I sue for breach against you if you use their PI? Can Warner Bros. sue for BREACH (not for copyright infringement, but for BREACH)? Now, assume Warner Bros. has no intention of using the OGL ever. Can they declare all their stuff as "Product Identity" and say, "Warning: We don't use the OGL, but if you do, all our intellectual property is always Product Identity"? If they do, will they have any standing to sue for breach of contract if I do what would otherwise be deemed making fair use of their products (like quoting a sentence from Nightwing and attributing it appropriately)? If that quote were PI in an OGL'd source in my section 15 they could claim breach. But here they are a 3rd party, out in the ocean, and trying to claim breach? Do they have any express or implied third party beneficiary rights under the OGL to sue for breach? Those are the two questions? Chris raised, to his credit, an interesting point, that the PI definition doesn't say you have to be the OGL contributor to declare PI. I was over here trying to see if his point had credence. I think Weldon's post on Section 2 and my own knowledge of contractual construction have answered my questions to my satisfaction, but if you have 2 cents to ante up, I'm all ears, sir. Hopefully I was clearer this time. Have a great day. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
On 1 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can declare Product: Tim, you asked for clearer examples and questions. I'll try to explain myself better, because I'd like to hear your take too. The fundamental question is: does someone not listed in your section 15 have rights to sue you under the OGL (not under copyright or trademark law, but under breach of contract)? Pretty tough question, and would most certainly depend upon the circumstances involved as I can easily two separate cases where the answer yes applies to one, and the answer no applies to the other. Plus there are sure to be a myriad of situations inbetween that really bullox things up. One question has been debated ad nauseum before: is PI declared in games everywhere binding upon everyone, or just in the games where it appears section 15'd? As Spikey pointed out much earlier, outside of the context of the OGL, PI has no single legal definition. PI is actually the combination of several different types of IP all lumped together for the use of convienence. My question now goes beyond that, and asks are there third party rights of law suit for people who aren't even signed on to any version of the OGL? If so, in what circumstances? It is possible that somebody who is not using the OGL may be able to sue somebody who is, however, I do not think that they can sue them over contract/liscense violations, only those involved in the license can do that. The PI definitions section specifically says what constitutes PI, but doesn't say that you have to be a party to the licensing contract to declare PI. It says you just have to be the owner. Which brings us back to the fact that PI has no legal definition outside of the OGL. As such, I do not think you can declare PI if you are not using the OGL. Always remember that contracts and licenses will often mention things, both implicitly and explicitly, but in almost all cases, those things mentioned will point back to the contract or license itself. (note: I did say almost!!). Also, a contract or license cannot over-ride general intellectual property laws. They may do so on an individual basis for one or more of those who are a part of that license or contract, but they cannot change the actual laws themselves. Now, the simplest scenario is a licensed product. I go to Warner Bros. and ask for permission to make a licensed Teen Titans OGL covered product. I'm the one using the OGL, not them. Can they make me, as their agent in all this, declare all their stuff except the gaming bits, as PI -- they are declaring it through me, and I'm the Yes, they can. Most likely it will be a clause or such in YOUR license with THEM that allows for you to do so on their behalf. However, chances are that is the only rights you have concerning those things to be declared. (other than your own uses). one in the Section 15? Can I sue for breach against you if you use their PI? Can Warner Bros. sue for BREACH (not for copyright infringement, but for BREACH)? Hmm... I would say yes. Due to your agreements with WB, you are most likely engaged to protect their interests while you are licensing them, and that includes policing anything that might be using their material. Now, assume Warner Bros. has no intention of using the OGL ever. Can they declare all their stuff as Product Identity and say, Warning: We don't use the OGL, but if you do, all our intellectual property is IMO, No, they cannot. Unless they are using the license themselves, then they cannot try to define something for those who are using the license, however see below always Product Identity? If they do, will they have any standing to sue for breach of contract if I do what would otherwise be deemed making fair use of their products (like quoting a sentence from Nightwing and attributing it appropriately)? No, but chances are they would not actually sue for that, but for copyright breach and/or trademark infringement. If that quote were PI in an OGL'd source in my section 15 they could claim breach. But here they are a 3rd party, out in the ocean, and trying to claim breach? Do they have any express or implied third party beneficiary rights under the OGL to sue for breach? No. They are not a party of the license, and would not be considered a beneficiary either, so they would have no standing as such. Chris raised, to his credit, an interesting point, that the PI definition doesn't say you have to be the OGL contributor to declare PI. I was over here trying to see if his point had credence. The Definition of PI is NOT a fast and hard definition. It is more of a list of acceptable types of intellectual property that CAN be claimed as PI. That is the understanding of those who helped cobble the OGL together and that would stand up in a court of law (intent) with enough witnesses. Note that there are three
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
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. This discussion festered up in the wake of an observation about whether you are bound by the PI in the SRD if you don't quote OGC from the SRD and include it in your Section 15. Thoughts? Comments? 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. IMO, it is implicit that the person putting material under the license is the one intended and required to declare what is and what isn't Product Identity. IIRC (it has been a while since I looked at the OGL), declaring product identity IS a part of the license, therefore the person who originally licenses the material (i.e. puts it under the OGL) is the one who declares the product identity. Remember, part of the OGL is that once declared as OGL, another person cannot come along and make it non-open again. This means that if I put the entire text of a product that I call Critical Combat under the OGL. You cannot come along later, use the section on herbs, and declare the herb names as product identity. They are already declared as open, and cannot be closed again. Doing so, or attempting to do so would be a breach of the license itself. TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
In a message dated 2/28/2005 10:15:24 PM Eastern Standard Time, [EMAIL PROTECTED] writes: IMO, it is implicit that the person putting material under the license is the one intended and required to declare what is and what isn't Product Identity. IIRC (it has been a while since I looked at the OGL), declaring product identity IS a part of the license, therefore the person who originally licenses the material (i.e. puts it under the OGL) is the one who declares the product identity. That's what one would assume, Tim. It just doesn't say it explicitly. And that's why I wondered (trying to give this other guy's reading the benefit of the doubt), if a third party beneficiary of some kind (i.e., someone gaining the benefits of the license but who is not a party to the license) could declare PI that would be binding over parties who were using the OGL? 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. I think this is clear enough, but unfortunately, it is clear ONLY through inference and only with the knowledge of the intent of the license. Without that, it doesn't say anything about whether some third party can declare PI. Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [OGF-L] Who can declare Product Identity (Third Party Beneficiaries?)
--- [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. Like I told you on RPG.net (and I really don't want to se this whole thing explode again), if you read the definition of what constitutes product identity in the OGL it goes beyond just a declaration of your individual PI in a product. From the definitions section of the OGL: '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 It includes declarations of PI from other game producers, but it also means so much more. Particularly when taken in conjuction with 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. The emphasis should be put on You agree not to use any product Identity as all of the rest is just icing. ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
