Re: [Ogf-l] D20 as Product Identity
At 10:48 -0800 2/4/04, Fred wrote: --- woodelf [EMAIL PROTECTED] wrote: [i seem to have forgotten to send this, and while theoriginal thread is long-since dead, i'd say it has some relevance to current discussions, so i'll still make my point.] At 14:23 -0700 7/23/03, Fred wrote: Can you give an example of PI in some actual work that is trivial to circumvent? d20. -- I simply take the term from, say, Palladium Fantasy. Please cite the actual work where this is declared PI, and why the fact that it appears in Palladium Fantasy makes it trivial to circumvent the PI clause of the D20 license. Yes, you can use the term without worrying about copyright, but that's not germaine to the discussion. D20SRD, latest revision: The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: ... d20 (when used as a trademark),... The WotC OGL also requires you to not use trademarks, even when such use might otherwise be permissible. D20 (without qualification) is claimed as a trademark in the DD3.5E books. However, d20 appears in numerous RPG books prior to the publication of DD3E, or the release of the D20STL, etc. In none of these works was it claimed as a trademark. Therefore, the term is already out there, effectively in the public domain. Assuming the eraser theory of PI is correct, as Ryan himself pointed out, any PI claim that is made on a term or phrase that is too minor for copyright protection, already in the common lexicon, and couldn't merit trademark protection is probably pointless--i can just go get the term from a source that doesn't declare it PI (such as one not released under the WotC OGL). The claim i was respodnig to wasn't that the PI clause, in toto, could be circumvented, just that the PI [declaration] itself could be. -- woodelf* [EMAIL PROTECTED] http://webpages.charter.net/woodelph/ Transylvannia Hills, 90210 Hellrose Place Beverly Hills by Night Diablare: Melrose Rage across Baywatch ? (love them Rokea...) ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/23/03 10:33:31 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: OGL PI are completely separate animals from copyright. This is a contract in which you agree to place a portion of your creation in the public domain. Copyright and PI/OGL are apples oranges. Why do people keep repeating this? Look, you can't have it both ways. Either PI is a subset of copyright and trademark and "ownership" (a prerequisite for PI) is established under those bodies of law OR it must be true that PI goes beyond those bodies of law, and in going beyond those bodies of law, it must contain items which can be "owned" as PI, but not as a copyright or trademark. If the latter is true, the license fails utterly to define ownership, and we have no reason to believe that Ryan's requirements that something be an enhancement over the prior art would be true, because that is something that one might expect for copyright ownership, but not for some amorphous, never-before-defined form of ownership over a never-before-defined category of IP which seems to include a laundry list of items which aren't normally subject to any kind of "ownership" under the normal definitions of IP law. Poses, concepts, themes, etc. - these can be PI'd in order to create protection for aspects of a product that, indeed, can't be copyrighted. Then on what basis can you PI it. You must _own_ it. Either you must agree that "ownership" is not defined the way copyright and trademark law would define it OR you must agree that poses can't be declared as PI. Under PI, I'm screwed. We'll ignore the trade dress issue entirely. By using the same pose, the same theme, and the same concepts (ie, the clothing as a means of expressing the concept of the 'gangbanger' lifestyle), I have trespassed into territory they clearly own, and either they laugh it off or I destroy my print run. Define "clearly own". Under what body of law, and by what definition? We didn't debate "ownership" of PI for 2 weeks last month for nothing. It's not clearly defined, and unless you assume that PI is 100% a subset of pre-existing classes of protectable IP, then you must agree that in some cases "ownership" is undefined for us by the OGL. But I cannot DUPLICATE the picture, as a complete work. To be clear, my examples have included (what is standard for monsters and spells for many vendors) that 100% of the character in question is licensed with the exception of the name. To declare the name as PI requires ownership of the name. And you have to be able to claim copyright on the name, since you can't claim infringement on anything else since you just licensed away 100% of everything else. In these circumstances it is very unclear to me that copyright can subsist in the name by itself at all once everything else is licensed. Perhaps it can in only the most minimal sense, but I've never seen any case law where an untrademarked name is not licensed but everything else about a product is licensed and the owner expected to protect his name by copyright law alone (which would be necessary in some readings of the PI, but not all, as a prerequisite to establish "ownership"). Lee
RE: [Ogf-l] D20 as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Either PI is a subset of copyright and trademark and ownership (a prerequisite for PI) is established under those bodies of law OR it must be true that PI goes beyond those bodies of law, and in going beyond those bodies of law, it must contain items which can be owned as PI, but not as a copyright or trademark. The license is a contract which describes how we may use WoTC's copyrighted works and how others may use ours. I said they're separate animals because concepts of OGC and PI have no meaning outside of the license. Anything not declared OGC or PI is covered under standard copyright, and the whole of the work is protected by standard copyright law as well. Copyright law does not protect some things that WoTC wanted protected, so a clause was created which defines how things not covered under copyright law will be handled *under this license*. If you want to use the license, you agree not to do these things, and you agree that you will not use these other things in your creation. In return for that agreement, these things over here are yours to use. It isn't a new area of copyright, or a new category of IP. It's a contract under existing IP law that has some language in it to address specific concerns of the agreeing parties. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
If I said, New Jersey is the gray waste of Hades, it would not, to my knowledge, under Title 17, ever be understood of as constituting a derivative work. Agreed, but if you were to write an RPG module set in the GWoH, it would be pretty clear that you took the entire concept from Wizards, violating their PI. Alan H. __ Do you Yahoo!? Yahoo! SiteBuilder - Free, easy-to-use web site design software http://sitebuilder.yahoo.com ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] D20 as Product Identity
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Martin L. Shoemaker Lee is looking to understand -- based on the language in the license, not just stated intent -- which is correct: Well, there's a reason appellate courts look at original intent - if an interpretation of the wording is at cross purposes to the intent, chances are that interpretation is not correct. I understand his reasons, but the stated intent is fundamental to a correct interpretation. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/24/03 12:22:52 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Martin -- you have a dead on target understanding of the options I'm asking people to think about. Things aren't as black and white (to me at least) as they are to others. One are of clarification: Now I think there's a third, overlooked option: C. A claim of PI IS a claim of ownership, just as is a copyright notice or a trademark indicator. It's a statement that "I believe that I am the owner of X, and I am willing to defend that claim in a court of law in the event that I believe that you have misused X in an OGL work derived from my work." If mere statement of ownership is sufficient to establish ownership, then it's not being overlooked, that's the "prohibited terms" list in the language of our friend, the Sigil. If merely declaring ownership is how PI is owned, then you could theoretically declare ownership over anything that's on the PI list, and it would act like a list of prohibited terms for people borrowing from your work. However you go on to say that this is a valid but unenforceable PI claim (I'll comment below)... And the judge would then dismiss the suit, and most likely rule that my PI claim on "Feet apart, arms joined straight out in front, pistol pointed forward, eye lined up for the shot" was no longer valid. And THEN the reformation clause of the OGL WOULD kick in, but ONLY for my immediate license to any sublicensors: that one PI claim would be invalid, but the rest of the license would stand. That is one possible reading I've noted in the past. Right one? Who knows, but I think it's a possible outcome. That reading requires reformation otherwise some things can't be enforced. That might happen. Again, for some reason people are attributing only one viewpoint on this issue to me. I'm actually poking and prodding every viewpoint I can think of, 'cause I haven't found any viewpoint that seems to be a perfect match with what I see in the license. Maybe that's just me. But thanks to those who have chimed in. It makes me feel like I'm not totally insane for raising some of these questions. Lee
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/24/03 2:33:04 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Well, there's a reason appellate courts look at original intent - if an interpretation of the wording is at cross purposes to the intent, chances are that interpretation is not correct. I understand his reasons, but the stated intent is fundamental to a correct interpretation. The stated intent seems to me to be, at first glance, to offer protections to things which aren't protectable under copyright and trademark standards. At first glance it seems that you have to be the owner of PI to declare it as such. It seems at first glance that those items of PI which aren't copyrightable or trademarkable must have some standard of ownership foreign to anything we currently understand about IP ownership. What are those standards of ownership? What body of law or what clear intent of the license clues us in to PI (as opposed to OGC ownership)? Lee
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/24/03 1:47:29 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Agreed, but if you were to write an RPG module set in the GWoH, it would be pretty clear that you took the entire concept from Wizards, violating their PI. No, why? Unless I set it in _their_ GWoH, then I could write entire books on my version of the place and use that name all day if it's not trademarked. The weirdness comes in (and this is less than clear to me) is what happens when you license 99.9% of the work except for a phrase like this. Now, the phrase is not itself copyrightable. It is copyrightable in tandem with a description, but if the description is licensed to me, it is unclear how much copyright protection remains with the phrase. The PI requirement of ownership requires that PI (which excludes OGC) have an owner (as defined by some mysterious standard). Lee
Re: [Ogf-l] D20 as Product Identity
--- Ryan S. Dancey [EMAIL PROTECTED] wrote: ... Hopefully, this will be the end of this thread. Ryan Ever hopeful. Your optimism is to be admired, sir. :) = BORGSTROM'S FIRST LAW (of Game Design): If you want to emphasize something, make sure everyone knows that they shouldn't have anything to do with it. __ Do you Yahoo!? Yahoo! SiteBuilder - Free, easy-to-use web site design software http://sitebuilder.yahoo.com ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/23/03 2:55:42 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: This is a black white issue. If, and only if, the work you are defining as PI is an enhancement over the prior art (insert Spike's expanded definition of "prior art" if you need to do so), AND you can demonstrate that a 3rd party is using it AND NOT some other content from some other source, THEN AND ONLY THEN you can enforce your claim. Why? If ownership is not at issue (the only restriction on PI other than that it be on the laundry list is that it be "owned" somehow) I don't know why. You and I can certainly contract as follows: Let's pretend I hate the character Thor with a passion (I don't, but let's pretend that I do). Next, toss out the OGL. Let's write a contract from scratch to simplify things. So I agree to this contract with you: Ryan can use Lee's work provided that Lee's work not be published, in whole, or in part, in any volume containing the word "Thor". If it is published with the word "Thor" in the volume, the agreement is terminated and Ryan is in violation of copyright law. Otherwise, Ryan can distribute Lee's work free of charge per the terms of this agreement. --- I see no reason why that agreement would not be binding (if combed through to clean up the language and add additional, needed information). So, contract law clearly allows you to agree to waive rights you might otherwise enjoy to access something of mine that you want. Grant and consideration. I see no reason why I need to have created the character of Thor to put mention of the character in as a binding clause in the contract. Now lets make the contract more generic: Lee is going to attach a list of characters he hates. If Ryan agrees not to publish any work containing any of those characters' names he can use Lee's work. Again, this does not, in any way, require that the list of names I attach be an enhancement over the prior art. You know what would make that requirement: a definitional requirement that said that the list of names I attach have to be those referring to characters which I created myself, and which were an enhancement over the prior art. The above language doesn't contain such a clause, so the list of characters could include Merlin, Thor, Loki, and half a dozen other character that I didn't create, that aren't an enhancement over the prior art, and because you are agreeing not to use them (to waive your rights to use them) that is the only reason you get to use my copyrighted text. I don't see specifications for PI that exist that clarify this matter. I think reformation would be required to answer the question of ownership unambiguously. I think that otherwise, the OGL is a much more complicated, structured version of my above agreement to let you use my work so long as the work is not published in conjunction with things I don't want it published with. So, again, I'll ask one more time, given that contracts can be constructed this way, what about PI requires it to be an enhancement over the prior art. The laundry list of items is so huge that almost anything could be declared PI, it seems. The big restriction: ownership. You have to own the PI. But the OGL doesn't define ownership, and it's difficult to imagine a "theme" or a "pose" that I could establish sole ownership over. Do you understand the difference between "your PI claim has no value" and "your PI claim is invalid"? Do you understand why this critical difference makes your previous dozen or so messages moot? The above example I've shown illustrates why I believe it is not moot. A contract can be made to waive your right to use something that everyone else in the world has a right to use if you want to, in turn, use something of mine. Hopefully, this will be the end of this thread. Not for me -- you are reading in assertions that I don't see in the plain language of the license. There is no requirement that PI be anything than something on the list (a character name such as Thor qualifies) and "owned". Only if we first establish that "ownership" is defined by creating something that is an enhancement over the prior art, would I agree with you that yours is the only interpretation. Nothing in the license suggests that "ownership" must defined that way or any other way. I think it really needs clarification. If I create a brand new character and call him XXHJKLJYT and don't claim any trademark on it, do I own the character name? Not under copyright law, except for its use in a specific context perhaps. Not under trademark law. Under the OGL? Who knows. Ownership is only implied for OGC and is not addressed at all for PI. Why can't the above contractual construction exist in the world? Why is the OGL not a contract of that construction? And what in the OGL demands that PI be an enhancment over the prior art? Lee
Re: SV: [Ogf-l] D20 as Product Identity
In a message dated 7/23/03 4:57:52 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
This discussion is really fascinating. I too was under the mistaken impression that PI represented something that was taboo to include in my derived work, no matter where I got it from. Sort of like the fictional agreement Lee suggested.
I'm glad somebody thought it was interesting. I have found the discussion interesting.
If you note from many of my posts, I'll frequently say it's "A" or "B". If I defend one or the other, it's to get it some "air time" to make sure that it is considered. About a month ago, I think the Sigil, I, and others were talking about the "prohibited terms" vs. "white out" method of reading the meaning behind PI.
I think I said, at that time, that PI was either trivial to circumvent ("white out") or it was broad and poorly defined ("prohibited"). If Ryan is correct, then it's basically trivial to circumvent, and offers a fairly minimal protection if any for many of the categories of PI.
Lee
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/23/03 5:06:46 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: First, you can't toss out the OGL. The whole thread is an argument about the OGL. Second, your simplification isn't at all what the OGL says or implies. Actually, there was a running debate a month ago about whether PI represented a series of prohibited terms or simply a list of things to "white out" before drawing on the source. My point in the post to Ryan was that one reading of the PI list was as a list of prohibited terms. Since contracts can be created which create lists of prohibitions, I think it's not a wholly unreasonable way to view the OGL. The only thing that complicates that viewpoint in the slightest, really, is that the terms you PI have to be "owned" by you (also another thread from a month back). There is a difference, as Ryan has so aptly pointed out, between PI that is enforceable and PI that is valueless. Again, if PI is a list of prohibited usages -- you agree to use my OGC but I give it to you only if you avoid my prohibited terms list, then the fact that his name has been published ad nauseum would not matter an iota. If you viewed the PI list as a "list of things to 'white out'", then you'd white them out, source them from somewhere else, and recreate the original document. But who's to say that all poses have been created or conceived? No, I'm saying that poses can't be owned. No ownership = no PI. You have to be the owner of the PI to PI it. Ownership is not defined. Can you own a theme? Not a book with a theme -- a theme? Can you own a pose? Not a specific drawing of a pose, but a pose? Ownership is required for PI declaration. If ownership is limited to traditional copyright and trademark definitions of ownership, then many of the things listed as possible PI items could not ever be PI'd by anyone. You are assuming that there isn't someone out there creative enough to invent something that would fit into one of these two concepts. Nope, not my point in the slightest. I'm assuming (rightly or wrongly, and perhaps wrongly), that these things can't be owned under trademark and copyright law and are ALWAYS in the public domain for some things on the PI list and thus they would NEVER receive protection, since nobody could ever raise any legal evidence that they owned a "theme". A verbatim _expression_ of a theme? Sure. A theme? No. Since the license seems intent on protecting things that don't seem to normally be protectable and which always seem to be in the public domain and are always unowned it raises a question of what it means to "own" something, and that definition may not necessarily neatly coincide with those we've come to expect from copyright and trademark law. Salvatore describes the dark elf in a pose with his swords that I had never heard of or tried to picture before. Something about spinning like a screw. Now maybe I am not seeing it my head right. Maybe I am a shut-in and don't know anything about anything, but, it is possible that this is a "new" pose. So? It has to be owned to declare it as PI. Under what body of law is the pose owned? None that I know if. The verbatim _expression_ is owned. But the pose? Never heard of such a thing under copyright or trademark law. No owner = No PI. So, if the book were OGC, except for the pose and the language describing the pose, I should think that Salvatore could make the case that people were using his PI if he saw it appear in another work. Certainly he could claim ownership of the text, but the pose? How do you define ownership? By what body of law? Lee
Re: SV: [Ogf-l] D20 as Product Identity
On Wed, 2003-07-23 at 13:48, Mikael wrote: If I DO include content in my derived work that is identical to any declared PI in the work I derive from, I need to be able to point to another source, outside of the work I've derived from. You need to be careful. It is possible that the 3rd party product you're pointing at is illegally using that content in the first place. The test I would use is: 1) Does my other source predate the publication of the work containing the Product Identity clause identifying the material in question? 2) Do I reasonably believe that no other work from the source making the Product Identity claim predates the publication of my other source? If you satisfy yourself that both of these things are true, you're probably on safe ground to ignore the PI declaration. Where matters will get tricky is when the PI appearance and your other source appearance are chronologically close to each other. Because if someone does make a PI claim against you, you're going to have to be able to show that your work was based on content untainted by any direct descendant connection to that PI. I don't see this as a loophole to get around a reasonable PI declaration for something that really is an enhancement over the prior art. Instead, I see it as a reasonable check on the ability of a publisher to contaminate the shared pool of OGC with Product Identity that is not an enhancement over the prior art. So the word to the wise is: If you think the PI declaration is reasonable, you're better off staying away from that content and not testing the safe harbor. Ryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
[Ogf-l] d20 as Product identity
Just saw that the legal document has been updated so that it now says d20 (when used as a trademark) instead of just d20 TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] D20 as Product Identity
Title: Message Your buddy's work would be handled separately, in your copyright/legal section - the one in the front of the product that goes "this work is copyright 2003 by . all rites reversed, prosecutors will be violated". You would have to add "The description of New Jersey as 'the grey wastes of Hades' is based on "Please God, Kill Me Now" by my friend Mike,copyright 2003 by Go Ahead And Shoot Him Press, and is used by permission. Section 15 justuses your normalnotice for your product. Your OGL/PI declarations, however, would be something like "All descriptions and references to New Jerseyas being an Earthbound layer of the Abyss, filled with torturedsouls screamingfor the sweet mercy of death, the mutation effects of New Jersey's water, and the descriptions ofvarious poxes which plague the residents areused under license and are never OGL, no matter where they appear, unlessincluded in a 10% grey shaded paragraph which appears ascommentary by our narrator,Tanya the Hooters Succubus." Just be very, very sure that Mike's work is prior art. Ifit isn't, go with something like"The Ashen Wastes of Hades". If you don't like that, watch a couple of episodes of 'Trading Spaces' that have rooms by Hilde SantoThomas in them, and the horrific adjectives will be flowing like water in no time. Bryan -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Wednesday, July 23, 2003 5:33 PMTo: [EMAIL PROTECTED]Subject: Re: [Ogf-l] "D20" as Product IdentityIn a message dated 7/23/03 7:18:22 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: How do you include your friend's paragraph in your section 15?I don't need to.Why would I? I wouldn't need to Section 15 any source which I draw info from which wasn't, itself, covered under the OGL.Lee
[Ogf-l] D20 as Product Identity
WotC doesn't own, and cannot successfully enforce a product identity claim on the term d20. That's why they didn't try to trademark d20 in the first place. The OGL specifically enumerates what a company can claim as Product Identity, and die types are not on the list. The list of Product Identity types is inclusive. I do maintain, however, that they have a pretty good trademark infringement case against any company that markets as products as d20 X - but that's an issue wholly separate from the OGL or the d20 Tradmark License, and is a matter of standard US trademark law. In short: They can put whatever they like into a Product Identity clause, but successfully enforcing that declaration on a 3rd party is probably impossible for something as vague as d20 in anything other than a trademark infringement case. Ryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
WotC is aware of the need for clarification. I think I still like Ryan's answer to my previous questions as they help round out a previous line of discussion. For now, here's what Andy Smith wrote me: Lee --- Yes, I realize that line needs to be clarified, I'm surprised it didn't jump out at me when I first wrote it. I'll run it by legal and update the SRD with a more accurate designation. Andy Smith Publishing/d20 Licensing Wizards of the Coast, Inc.
RE: [Ogf-l] D20 as Product Identity
On Tue, 2003-07-22 at 16:12, Martin L. Shoemaker wrote: I agree with that as a goal, but language to that effect doesn't appear in the license. Is it your belief -- recognizing that you're not in the business of providing legal advice -- that a court would read this intent into the wording of the license? If I can source something from the public domain, then I'm clearly not forced to source it from your PI claim, ergo, I'm not violating your PI claim. (Your PI claim is essentially worthless). Ryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
On Tue, 2003-07-22 at 17:02, Spike Y Jones wrote: A mouthful, which is probably why he shortened it to from the public domain. Exactly. Ryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/22/03 8:21:32 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Exactly. Ryan Then how are concepts ever protected under the OGL as PI? They will never be trademarked or copyrighted. They will be floating around in the public domain as concepts. If you can just source a concept from the public domain then you can defeat any PI declaration for a concept. It seems that one of two things must be true: either concepts must be protectable in spite of the fact that concepts, by their very nature, don't particularly belong to any one person under either trademark or copyright law, and such claims are granted by the OGL alone, simply because someone chooses to enact them OR concepts are listed for protection, but are de facto granted no protections, since you could always circumvent the protections by sourcing from the public domain I don't see how you can source from the public domain AND also have protections for a pure concept. Lee
[Ogf-l] d20 as Product Identity...
IANAL... Ultimately, I think the question boils down to this: quote: (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; In order for WotC to claim PI on the term d20, it must fall into one of the above areas. Let's play process of elimination. d20 is not a product name. d20 is not a product line name. d20 is not a logo - there is a d20 logo but that is separate and independent from the term d20 d20 is not an identifying marks nor trade dress, as many items and systems use icosahedrons d20 is neither an artifact nor creature nor character. d20 is not a story nor storyline nor plot nor thematic element nor dialogue nor incident nor language nor artwork nor symbol nor design nor depiction nor likeness nor format nor pose nor concept nor theme nor visual or audio representation. d20 is not the name or description of a character, spell, enchantment, personality, team, persona, likeness, or special ability. d20 is not the name of a plane, location, environment, creature, equipment, magical or supernatural ability or of a logo, symbol, or graphic design. d20 is not a trademark nor a registered trademark (d20 System is, but d20 is not) The term d20 is not owned by WotC - it has demonstrably existed in common gaming parlance for years (Palladium books springs immediately to mind as a company that has used the term d20 in its books for over a decade, I'm sure there are others). So it fails ALL of the tests for can this be claimed as PI? Furthermore, PI must specifically exclude Open Game Content (see the final line... and specifically excludes Open Game Content). d20 was entered into Open Game Content as of version 3.0 of the OGL. Note that the generic term d20 as used to represent an icosahedral die, was added to the canon of OGC in the 3.0 SRD, Basics section. From the 3.0 SRD, Basics Section: quote: This material is Open Game Content, and is licensed for public use under the terms of the Open Game License v1.0a. DICE NOTATION These rules use the following die notations: · d4 = four sided die · d6 = six sided die · d8 = eight sided die · d10 = ten sided die · d12 = twelve sided die · d20 = twenty sided die Clearly, the OGC designation in 3.0 included d20. Thus, because d20 was Open Game Content, WotC cannot later call it Product Identity, per the terms of the Open Game License itself... because, in essence, Product Identity cannot include Open Game Content. I think it goes somewhat back to the infringing upon PI argument we had a while back - if you create Joe the Fighter in 2001 and PI the name in Bob's Book Of Stuff, and I create another fighter that I name Joe the Fighter in 2002 and make him OGC in Billy's Book of Stuff, have I infringed your PI and am I in violation of the OGL? I believe the answer is, if I am (or possibly should be) aware of your PI, yes... otherwise, no. Let's reverse that. Suppose I create Joe the Fighter in 2001 and OGC him and later you create another Joe the Fighter in 2002 and decide to PI him. Is your PI designation made invalid? I think, again, the answer is, if you were aware of my Joe the Fighter, then your PI designation is invalid because you knew 'Joe the Fighter' was OGC and PI specifically excludes OGC... hence you can't PI it. Though, I assume if you weren't aware of my version of Joe the Fighter your claim might stand up. At the end of the day, it will be very hard for WotC to claim ignorance, since WotC itself released d20 as Open Game Content. I have a hard time thinking they'll be able to convince anyone that they didn't know it was already Open Game Content - since they were the ones who made it so - when they released version 3.5 of the SRD. Again, IANAL, but claiming d20 as PI seems to be an invalid claim on three counts... One: Product Identity ... specifically excludes the Open Game Content and d20 was already Open Game Content (and
Re: [Ogf-l] d20 as Product Identity...
Isn't this whole discussion mooted by the fact that a WotC representative was quoted about 15 or 20 posts ago as saying words to the effect of, Yeah, it's a mistake; we'll have to fix it? Spike Y Jones ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
In a message dated 7/22/03 8:09:04 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: And as always seems to happen in these discussions, someone brings in concepts of IP protection that are completely different from PI protection (except for similarity of spelling). Don't look at me. I believe that either the license needs to be reformed to drop things that can't be trademarked or copyrighted from the PI list OR The list goes far beyond normal copyright and trademark protections and can extend to things which normally have no protection under copyright or trademark law, and you can stop someone from using things that you normally have no right to stop them from using Within the license, concepts can be declared to be Product Identity even if those same concepts would not be afforded copyright or trademark protection outside of the license. OK, but if that's the case, then the PI declaration for a concept is null and void. Because if you can source the concept from outside the body of OGL work (which is trivial to do at the level of the concept), then PI would offer no protections for concepts in spite of claiming that they are protectable. When Ryan used the term "source something from the public domain" above, he more accurately meant "source something either from the existing body of valid Open Game Content independent of the claimed PI, or from the body of material outside of the OGL framework that can be shown to have existed prior to the PI claim." A mouthful, which is probably why he shortened it to "from the public domain." The problem with this definition, is that if the PI can extend protections to otherwise unprotectable items it calls into question the entire interpretation of what you just wrote. Or it seems to. If I can PI something that is normally afforded no protections, then I can stop you from using it in spite of the fact that outside the OGL I have no rights to stop you from using it. If I can't stop you from sourcing stuff from the public domain, then effectively PI has no protections that aren't already granted under IP law, rendering it a whole lot of legal mumbo jumbo with no real force behind it. In that case it would have been much simpler to note that PI was trademarked or copyrighted materials specifically designated as PI. The definition does not contain such specific language. Alternately, if concepts are protectable, then whether or not they exist outside of the OGL (and concepts will always exist outside of the OGL) will not matter. Lee
Re: [Ogf-l] D20 as Product Identity
At 14:28 -0700 7/22/03, Ryan S. Dancey wrote: WotC doesn't own, and cannot successfully enforce a product identity claim on the term d20. That's why they didn't try to trademark d20 in the first place. blink Ryan and i are agreeing? One of us must've been pod-personed. The OGL specifically enumerates what a company can claim as Product Identity, and die types are not on the list. The list of Product Identity types is inclusive. I do maintain, however, that they have a pretty good trademark infringement case against any company that markets as products as d20 X - but that's an issue wholly separate from the OGL or the d20 Tradmark License, and is a matter of standard US trademark law. Ah! Much better. Now we disagree. ;-) In short: They can put whatever they like into a Product Identity clause, but successfully enforcing that declaration on a 3rd party is probably impossible for something as vague as d20 in anything other than a trademark infringement case. I do think that's an important point: the discussion seems to have leapt right over is this PI declaration valid and gone straight on to figuring out the ramifications of the PI declaration. I'm with Ryan on this one: it's an invalid declaration, so it doesn't really matter what the ramifications would be were it a valid PI declaration. -- woodelf* [EMAIL PROTECTED] http://webpages.charter.net/woodelph/ The Laws of Anime http://www.abcb.com/laws/index.htm: #8 Second Law of Temporal Mortality It takes some time for bad guys to die... regardless of physical damage. Even when the 'Bad Guys' are killed so quickly they didn't even see it coming, it takes them a while to realize they are dead. This is attributed to the belief that being evil damages the Reality Lobe of the brain. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
On Tue, 2003-07-22 at 17:26, [EMAIL PROTECTED] wrote: Then how are concepts ever protected under the OGL as PI? If I was Arthur C. Clarke, and the year was 1940, and I, out of my own imagination and knowledge of celestial mechanics, enunciated the concept of geosynchronous satellites and explained why their unique nature would be useful, I could claim that concept as Product Identity. It would be very difficult for a 3rd party to produce a reference to the specific concept I had enumerated that predated my own. It would thus clearly constitute an enhancement over the prior art. The problem of finding a concept unique and original enough to garner useful PI protection isn't a problem faced by the OGL; it's a problem faced by people who might seek such protection. The problem faced by the OGL is the proliferation of publishers who claim all sorts of things as Product Identity, either because they think they can, they have been told by their lawyers that they should just in case, or they really don't understand the reason the Product Identity clause is in the license. The fact that WotC put d20 in its Product Identity list is unfortunate for the confusion it might cause and the stress it may engender, and I hope they remove it, since it doesn't really give them any enforceable right of any kind. Ryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
Ryan S. Dancey wrote: In short: They can put whatever they like into a Product Identity clause, but successfully enforcing that declaration on a 3rd party is probably impossible for something as vague as d20 in anything other than a trademark infringement case. You forgot the qualifier, Ryan. ...enforing that declaration on a 3rd party _who is willing to fight the legal battle_ is probably impossible... If an ambiguous statement that requires a court case to determine enforcement clutters the issue, then it's a restriction on the safe harbor, and thus a minor defeat to the openness of the OGL. It isn't enough for the GPL to be able to stand-up in court--the important factor is that FSF provides sufficient briefs to settle nearly all infringement and license violations out of court. A competent small-time publisher who wishes to play by the rules and who has no malice should be able to successfully operate without holding tens of thousands of dollars in escrow for a legal defense. Thankfully, a simple inquiry to WotC is sufficient to calm the waters of the safe harbor, if anyone is really concerned about it. DM P.S.: My memory may be slipping, but I did recieve a reply from WotC re: use of Dungeon Master. It's off-limits as far as they're concerned, and it's inclusion in the old SRD was a mistake. Thank god for WinGREP. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
On Tue, 2003-07-22 at 14:43, [EMAIL PROTECTED] wrote: I can hardly claim myself that d20 is neither a concept nor an expression using language. Can you? Yes. It is neither. Would you care to enumerate for us, the kind of ownership and other requirements, etc. might be required to PI concepts, poses, etc. (things not traditionally thought of as copyrightable material outside of a specific implementation of the concept)? I believe you must demonstrate an enhancement over the prior art. That is, you have to demonstrate that whatever you're making a PI claim for is original in some sense to you, and not something that could be alternately sourced from the public domain. Ryan ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] D20 as Product Identity
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ryan S. Dancey Sent: Tuesday, July 22, 2003 6:57 PM To: [EMAIL PROTECTED] Subject: Re: [Ogf-l] D20 as Product Identity On Tue, 2003-07-22 at 14:43, [EMAIL PROTECTED] wrote: Would you care to enumerate for us, the kind of ownership and other requirements, etc. might be required to PI concepts, poses, etc. (things not traditionally thought of as copyrightable material outside of a specific implementation of the concept)? I believe you must demonstrate an enhancement over the prior art. That is, you have to demonstrate that whatever you're making a PI claim for is original in some sense to you, and not something that could be alternately sourced from the public domain. I agree with that as a goal, but language to that effect doesn't appear in the license. Is it your belief -- recognizing that you're not in the business of providing legal advice -- that a court would read this intent into the wording of the license? I can think of at least a hundred discussions on this list that would never have occurred if the license were as plain in this regard as what you just wrote. Martin L. Shoemaker [EMAIL PROTECTED] http://www.TabletUML.com -- The UML tool you don't have to learn! ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] D20 as Product Identity
On Tue, 22 Jul 2003 [EMAIL PROTECTED] wrote: I believe that either the license needs to be reformed to drop things that can't be trademarked or copyrighted from the PI list OR The list goes far beyond normal copyright and trademark protections and can extend to things which normally have no protection under copyright or trademark law, and you can stop someone from using things that you normally have no right to stop them from using I think the license matches your second possibility, that it does extend beyond copyright and trademark protection, and that it can be used to stop someone from using things that couldn't be stopped outside of the strictures of the license. But I point out that you enter the license voluntarily, and in so doing you enter into a contractual agreement with the licensor in which you give up certain things (e.g., some fair use provisions of copyright law) in exchange for other things (e.g., the right to borrow OGC from other publishers and, if you also voluntarily enter into the D20STL, to use the D20 System logo on your products. Yes, the license goes beyond trademark and copyright law, which is just fine; if it didn't do something different than standard trademark and copyright law, there'd be no reason to have a license in the first place, since you could just resort to said trademark and copyright law. If concepts are protectable, then whether or not they exist outside of the OGL (and concepts will always exist outside of the OGL) will not matter. Concepts in general, yes. But a specific concept that I came up with that nobody else has ever come up with before, no. Have I ever done so? Maybe, maybe not. But it's obvious that someone at sometime somewhere has come up with a novel concept or two, because if they haven't, then all concepts existed prior to the inception of the universe. Therefore, it's possible for someone to come up with a novel concept. That concept cannot be trademarked or copyrighted, and therefore it cannot be protected under those bodies of law. But it can be covered under the OGL, because the OGL is separate from copyright and trademark law; by voluntarily publishing a work under the OGL, you're agreeing to the proposition that concepts can be afforded some measure of protection as PI, but only insomuch as they don't already exist in valid OGC or in the pre-existing public domain (in which case I'd be able to use the former to show that your PI claim is invalid, or the latter to circumvent your PI claim). Has any d20 publisher claimed a concept as defendable PI? Not that I know of, but that doesn't mean that it's impossible for a situation to arise in which such a claim can be made. And *that* being the case, the inclusion in the license does nobody any harm, and can potentially benefit someone who makes proper use of it. Spike Y Jones ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] d20 as Product Identity...
On 22 Jul 2003 [EMAIL PROTECTED] scribbled a note about Re: [Ogf-l] d20 as Product Identity...: Isn't this whole discussion mooted by the fact that a WotC representative was quoted about 15 or 20 posts ago as saying words to the effect of, Yeah, it's a mistake; we'll have to fix it? Actually he said something to the effect of Yeah, it is unclear, let me find out what is actually meant :) TANSTAAFL Rasyr (Tim Dugger) System Editor Iron Crown Enterprises - http://www.ironcrown.com E-Mail: [EMAIL PROTECTED] ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
Re: [Ogf-l] d20 as Product Identity...
At 21:07 -0400 7/22/03, [EMAIL PROTECTED] wrote: Isn't this whole discussion mooted by the fact that a WotC representative was quoted about 15 or 20 posts ago as saying words to the effect of, Yeah, it's a mistake; we'll have to fix it? No. If he'd said yeah, it's a mistake; it's not PI i'd say the discussion is over. But, he said they'll fix it, which implies they are trying to fix the wording, not the issue. IMHO, if they try and claim it in any reasonable manner, it'll still raise the issue of whether or not it can be claimed at all. Maybe they'll prove me wrong, and come up with a really clever way to word it to do what they want and keep the rest of us happy; i'm not holding my breath. -- woodelf* [EMAIL PROTECTED] http://webpages.charter.net/woodelph/ The Laws of Anime http://www.abcb.com/laws/index.htm: #8 Second Law of Temporal Mortality It takes some time for bad guys to die... regardless of physical damage. Even when the 'Bad Guys' are killed so quickly they didn't even see it coming, it takes them a while to realize they are dead. This is attributed to the belief that being evil damages the Reality Lobe of the brain. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [Ogf-l] D20 as Product Identity
At 19:12 -0400 7/22/03, Martin L. Shoemaker wrote: I can think of at least a hundred discussions on this list that would never have occurred if the license were as plain in this regard as what you just wrote. The vast majority of the discussions on this list wouldn't occur if the license were as clear as the FAQ that accompanies it, or was written in good, tight legalese. -- woodelf* [EMAIL PROTECTED] http://webpages.charter.net/woodelph/ The Laws of Anime http://www.abcb.com/laws/index.htm: #8 Second Law of Temporal Mortality It takes some time for bad guys to die... regardless of physical damage. Even when the 'Bad Guys' are killed so quickly they didn't even see it coming, it takes them a while to realize they are dead. This is attributed to the belief that being evil damages the Reality Lobe of the brain. ___ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
