Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)
In a message dated 3/14/2005 9:55:21 PM Eastern Standard Time, [EMAIL PROTECTED] writes: So where have I got this wrong? Is adding this sort of statement actually a "registration" or are you saying that declaration of copyright is not sufficient to gain protection? David, this is simple. When you set something down in fixed form you have just copyrighted it. If you want to SUE someone in certain ways then you need to go register it to bring certain kinds of lawsuits. Not all kinds. Just certain kinds. However, they tend to be the kinds you want to bring, because they involve the statutes with huge monetary damages associated with them. 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 (ThirdPartyBeneficiaries?)
From: Chris Helton [EMAIL PROTECTED] Subject: RE: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?) Hi Chris, I've been struggling to follow you and Lee on this as you both seem to be talking up different points. After reading the following: What I have been saying, and I am not sure how much more clearly I can say it, is that the PI declaration is not the only PI that exists under the OGL. snip You will notice that by saying this I am not stating that PI does not need to be declared, nor am I saying that there is a gigantic pool of PI anyplace, nor am I saying that there is one true way to declare PI. I have never made those statements, and in fact I am stating what I read in the OGL. None of these stances or staements have changed since I started addressing this subject. I get the impression that you are saying: 1) You have to declare some PI but, 2) Other PI can exist that is not specifically declared as PI. However, all the quotes of what you and Lee did and didn't say, plus the large number of messages both of you have posted, have made it very hard for me to work out if this is what you mean. The actual nuts and bolts of the conversation are being buried in what seems to me to be a repetition of stuff that isn't the central part of the two topics you both seem to be talking about. Once again, I will state that I am not trying to impose my interpretation of the OGL on anyone and that what I am interpresting only has to do with me. I accept that you are not trying to impose your interpretation of the OGL, and I hope that you will accept that I am trying to work out what you are saying to Lee and not put words in your mouth. I would appreciate it if you would give an example of your interpretation (not a quote from the OGL) so that I can work out what you mean. Specifically what is the PI that exists but isn't part of the PI declaration? If it isn't declared how does it arise? Does it start off as part of a product/work/magazine that contains a copy of the OGL? Alternatively does it start off in something that has nothing to do with the OGL? If it starts off in a non-OGL document, how does it become incorporated into an OGL document? How do we know that it is PI? (By that I mean if I see a game product that doesn't define this PI in the PI definition, how do I avoid inadvertently duplicating that PI and breaching the OGL? What sort of logic can I use to identify all of this non-defined PI so that I can avoid using it?) Some of the people on this list (but not Lee) seem to infer a third type of content from the OGL: OGC, PI and Closed content or non-covered content. (Interpretations of the nature and/or the existence of the third type of content are disputed.) You seem to be splitting PI into two so that we get: Defined PI and Undefined PI. Am I right? Is this what you are saying? If it isn't please tell me what you *are* saying. David Shepheard Webmaster Virtual Eclipse Science Fiction Role Playing Club http://virtualeclipse.aboho.com/ http://uk.groups.yahoo.com/group/virtualeclipselrp/ ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
RE: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)
OR, Beta Games can secure a licensing agreement from Acme Games, and act as Agent under the terms of the agreement to designate content as PI, like Mongoose does with Babylon 5. So, here's my question: What happens if there is a violation of PI use, say one of Naughty Games's product include a PI that is actually licensed to Beta Games but owned by Acme Games, and Naughty Games try to challenge this in court? Who would be the plaintiff party in the lawsuit? Hypothetically speaking... -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Shepheard Sent: Tuesday, March 01, 2005 4:46 AM To: ogf-l@mail.opengamingfoundation.org Subject: Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?) From: Tim Dugger [EMAIL PROTECTED] Subject: Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?) On 28 Feb 2005 at 21:47, [EMAIL PROTECTED] wrote: However, there's nothing saying explicitly that PI has to be declared by anyone in particular. I was thinking that you had to be a party to the contract to declare PI, but then I asked myself this question: can a third party beneficiary declare PI without actually being a party to the contract or an assignee. Not exactly sure what you are saying (an example would have been nice - hehe), but I will respond to what I think you are saying. I'm not sure what he was saying. I've got an idea of a situation where there could be a third party that wants stuff declared as PI but hasn't published the document it is in under the OGL. Maybe you could tell me if this is the sort of thing you are talking about. 1) Acme Games publishes a non OGL roleplaying game with no OGC declared. 2) Several years later WotC bring out the OGL and Acme Games joins the OGC community. 3) Someone at Beta Games phones up the guy that runs Acme Games and says: I've been looking at some of your old stuff and there is something there that I'd really like to use in one of my products. 4) The head of Acme Games says: I don't mind you using it, but I don't want to have to go to the expense of republishing it under the OGL. However, as long as you promise to declare X,Y and Z as PI for me, you can use it. Wouldn't this then mean that Beta Games would be making PI declarations on behalf of Acme Games? Beta Games would then be a third party that benefits from the protection of the OGL. Is this the sort of thing you are getting at? If it is then I can't see how allowing the OGL to be used in *this* way is damaging. Beta Games is benefiting from getting content from Acme Games without the associated development costs. Acme Games is benefiting because their PI is being protected without them having to republish. On the other hand if someone was to say that doing this would somehow strip Acme Games of any rights to declare anything in the stuff they allow Beta Games to use as PI then it *would* be damaging. Acme Games would then have three choices: * Refuse to help out Beta Games in order to protect their PI. * Allow their content to be reused and forfeit any ability to protect the PI if they later want to publish a second edition of the setting under the OGL. * Publish a new product, under the OGL, containing whatever Beta Games wants to use. So if this is your interpretation of how the law works, we could end up with a lot of publishers refusing to help their friends because they are too scared of loosing rights to stuff that would be PI if the product was published today. That is not good for players, publishers or anybody because the content never sees the light of day. Alternatively we might end up with publishers engaging in the farce of sticking a block of text from a 10 year old product into a letter then sticking a copy of the OGL on the end and a PI/OGC definition onto the front! :-O In fact if that is the only way to allow people to use copyrighted stuff that isn't protected by the OGL, I could even imagine somebody getting stationary printed with the OGL on it to save time! ;-) Section 15 entries would then contain pairs of things like: Old Role Playing Game - Copyright Acme Games 1972 You Can Use Our Old Role Playing Game Letter - Copyright Acme Games 2005 Forgetting what the OGL says for a moment (because nobody seems to actually know exactly what it means - LOL) isn't it logical that something that is included in an OGL product, that has been created by another company should be declarable as either PI or OGC on their behalf. This could apply outside the RPG industry as well. If I was to sit down and create an d20 Aliens product, why would I not be able to declare the name Rebecca 'Newt' Jordan to be Product Identity of 20th Century Fox instead of Product Identity of myself? Mind you, for all I know you might have
Re: [OGF-L] Who can declare Product Identity (ThirdPartyBeneficiaries?)
In a message dated 3/2/2005 4:11:56 AM Eastern Standard Time, [EMAIL PROTECTED] writes: So, here's my question: What happens if there is a violation of PI use, say one of Naughty Games's product include a PI that is actually licensed to Beta Games but owned by Acme Games, and Naughty Games try to challenge this in court? Who would be the plaintiff party in the lawsuit? Hypothetically speaking... Probably depends on the licensing agreement between Beta and Acme. Licensing agreements typically give you some limited rights to act as an agent of the licensor, and sometimes require you to go to court on their behalf. Contract law typically allows for agents and assignees even if the contract doesn't specifically mention these as long as the contract doesn't specifically bar them. In a licensing situation, this is probably one of the only times a third party (the licensor of the PI) can get involved as a plaintiff. However, the third party might not be the one bringing the case if they have contractually named Beta Games as their agent in any litigation. So, the answer to this question, in my mind, is that it all depends on the contracts between Beta and Acme. 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 (ThirdPartyBeneficiaries?)
-Original Message- From: Chris Helton This is the definition of Product Identity that I have been using all along. You will notice that since it contains the phrase and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content that I do understand that declared PI is a part of PI. What I have been saying, and I am not sure how much more clearly I can say it, is that the PI declaration is not the only PI that exists under the OGL. OK. I get it. You're reading this section of the license in a completely different way than me (and I would say everyone else). I read the license to say that there is a list of things that can be PI and that list is inclusive up to registered trademark at which point the license says what you must do to make those things PI. All of those things that could be PI up to and including registered trademarks must be clearly identified and specifically exclude OGC. So in my interpretation, there is no PI unless it is clearly identified. It's not just one way to be PI, it's the only way. In fact, since PI only has meaning within the license, you could say that PI must appear in the licensed work such that it would be OGC if it were not otherwise identified as PI. For example, if you declare chapter 2 (and only chapter 2) to be OGC then a name that appears only in chapter 1 is not PI because it's not included in OGC and doesn't need to be excluded from OGC by being clearly identified as PI. In this scenario, the name is just copyrighted material that is not OGC. This is the current interpretation on this list and is shared by the majority of large publishers that post here. You will notice that this section does not only include PI that has been declared to be so, but actually anything that is defined as PI under section 1(e) of the license. This is all that have have been saying all along. Section 1 says PI must be clearly identified to be such. This is the heart of our disagreement. Once again, I will state that I am not trying to impose my interpretation of the OGL on anyone and that what I am interpresting only has to do with me. Fair enough, but maybe you should read the OGL faq to see where I get my interpretation. ___ 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 (ThirdPartyBeneficiaries?)
In a message dated 3/1/2005 12:58:17 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Section 1 says PI must be clearly identified to be such. This is the heart of our disagreement. Right, Weldon, and here's the problem I have with Chris' interpretation. The PI Definition says (with some intervening words removed): "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity... By Chris' readings, product lines, product line names, logos, and identifiying marks including trade dress would PI without declaration, but any other type of trademark must be identified as PI to be PI. That seems WAY arbitrary. Why would I need to declare the registered trademark for my company as PI, but I would not have to declare the unregistered common law trademark on my product line as PI. Why would my company's logo be automatically protected, but my company's name (which is not a product name or product line) requires a PI designation? The seeming arbitrariness of that notion compels me to take a contrary reading. Apparently you feel the same way. 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 (ThirdPartyBeneficiaries?)
Not saying which interpretation of that line is right or wrong, but it would seem to me that if Chris' interpretation is correct you wouldn't have to mark it as PI.. its simple ommision from the Open Content of the product would seem to be enough. [EMAIL PROTECTED] wrote: In a message dated 3/1/2005 12:58:17 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Section 1 says PI must be clearly identified to be such. This is the heart of our disagreement. Right, Weldon, and here's the problem I have with Chris' interpretation. The PI Definition says (with some intervening words removed): Product Identity means product and product line names, logos and identifying marks including trade dress; artifacts; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity... By Chris' readings, product lines, product line names, logos, and identifiying marks including trade dress would PI without declaration, but any other type of trademark must be identified as PI to be PI. That seems WAY arbitrary. Why would I need to declare the registered trademark for my company as PI, but I would not have to declare the unregistered common law trademark on my product line as PI. Why would my company's logo be automatically protected, but my company's name (which is not a product name or product line) requires a PI designation? The seeming arbitrariness of that notion compels me to take a contrary reading. Apparently you feel the same way. 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 (ThirdPartyBeneficiaries?)
In a message dated 3/1/2005 1:14:49 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Not saying which interpretation of that line is right or wrong, but it would seem to me that if Chris' interpretation is correct you wouldn't have to mark it as PI.. its simple ommision from the Open Content of the product would seem to be enough. Except that, unambiguously, at least some types of PI _have_to_be_ clearly identified. The only question is whether that is some or all parts? 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 (ThirdPartyBeneficiaries?)
Out of that list.. which peices in a work do you think would be necessary that can't be covered by 'story' and 'thematic elements'? [EMAIL PROTECTED] wrote: In a message dated 3/1/2005 1:14:49 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Not saying which interpretation of that line is right or wrong, but it would seem to me that if Chris' interpretation is correct you wouldn't have to mark it as PI.. its simple ommision from the Open Content of the product would seem to be enough. Except that, unambiguously, at least some types of PI _have_to_be_ clearly identified. The only question is whether that is some or all parts? 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 (ThirdPartyBeneficiaries?)
In a message dated 3/1/2005 1:51:39 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Out of that list.. which peices in a work do you think would be necessary that can't be covered by 'story' and 'thematic elements'? Necessary? I'm confused by the question Avatar. Happy to chime in politely on the subject, but I don't understand the question. 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 (ThirdPartyBeneficiaries?)
The statement was that there are some types of PI that would have to be marked. If we are assuming a particular interpretation of the quote below where in the items not listed there have to be clearly identified by the owner (as opposed to the standard interpretation where in this is just a list of examples of things that can be declared). Looking over the list, it seems pretty comprehensive. Given the assumptions above in an example product, what would 'have to be declared' if we assume that each of the below items is automatically assumed to be PI? 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; [EMAIL PROTECTED] wrote: In a message dated 3/1/2005 1:51:39 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Out of that list.. which peices in a work do you think would be necessary that can't be covered by 'story' and 'thematic elements'? Necessary? I'm confused by the question Avatar. Happy to chime in politely on the subject, but I don't understand the question. 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 (ThirdPartyBeneficiaries?)
Yes but when you said: By Chris' readings, product lines, product line names, logos, and identifiying marks including trade dress would PI without declaration, but any other type of trademark must be identified as PI to be PI. That seems WAY arbitrary. Why would I need to declare the registered trademark for my company as PI, but I would not have to declare the unregistered common law trademark on my product line as PI. Why would my company's logo be automatically protected, but my company's name (which is not a product name or product line) requires a PI designation? You were arguing against that particular interpretation by saying it was non-sensicle given a set of assumptions and then you ignore the assumption. Basically you were saying that if we interpret winged-pigs as being good fliers that makes no sense because pigs don't have wings. We're assuming pigs have wings so they could very well be good fliers but winged-pigs can't be good fliers because pigs don't have wings. If you're going to properly test a definition you have to give all the predicating assuptions proper credence. [EMAIL PROTECTED] wrote: In a message dated 3/1/2005 2:22:05 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Looking over the list, it seems pretty comprehensive. Given the assumptions above in an example product, what would 'have to be declared' if we assume that each of the below items is automatically assumed to be PI? I reject that definition for reasons I've already explained. I consider it a very strained reading of the contract. Perhaps someone else will bite. Sorry. 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 (ThirdPartyBeneficiaries?)
In a message dated 3/1/2005 3:20:18 PM Eastern Standard Time, [EMAIL PROTECTED] writes: You were arguing against that particular interpretation by saying it was non-sensicle given a set of assumptions and then you ignore the assumption. No, it's non-sensical given that it makes NO sense that every type of trademark except non-logo, non-product line registered trademarks gets auto-declaration and that you have to overtly declare non-logo, non-product line registered trademarks. I haven't switched or ignored that. That makes no bloody sense. Whereas declaring all those things as PI so that the end user is ultra clear about what is and is not PI seems completely in keeping with the intent of the license (to specify overtly what is and is not licensed). Basically you were saying that if we interpret winged-pigs as being good fliers that makes no sense because pigs don't have wings. We're assuming pigs have wings so they could very well be good fliers but winged-pigs can't be good fliers because pigs don't have wings. Right. And you can make assumptions all day that go against: a) laws related to contractual construction; b) industry practices; c) the clear intent of the license. More power to you. I won't play that game though. You want me to abandon a-c and pick out of two possible readings of one section taken in isolation the reading that goes against a-c taken in context. Sorry. Not me. I pass. If you're going to properly test a definition you have to give all the predicating assuptions proper credence. Yes, but proper credence is just that. It is not EQUAL credence. You weigh each one out in context, and give each one the proper credence it is due. I did test the definition. If everything is automatically PI even if you don't declare it as PI then you can't OGC almost anything, defeating the intent of the license. Now alternately, if you feel instead that those things are automatically considered PI, but only if you don't OGC them, then the point is largely moot, because at that point you've attached the license to a work. The work is covered, the part that's OGC is listed. Everything else is PI. And the only question is whether you are open to a claim of breach or whether you unmarked parts may, by a court, be considered OGC accidentally since you didn't declare them as anything (if a court feels that you must declare PI and you didn't declare one part anything and if the covered work is OGC except the parts declared as PI you just accidentally OGC'd something). Since the latter situation is: a) either moot or b) puts you at unnecessary risk because you are too lazy to declare something I think it's a REALLY bad reading. I've weighed things. I just haven't treated that argument as having the same level of credibility you have. I've weighed what I know of: a) contract law; b) the intent of the contract; c) industry practice; d) effects and outcomes of the interpretation; e) risks of the interpretation if a court disagrees and found Chris' interpretation lacking. That's not the same as not considering it at all. Indeed I started this thread precisely to test one of Chris' readings (which effectively considered the possibility of third party beneficiaries with rights to bring suit even though he didn't state it that way). Lee ___ Ogf-l mailing list Ogf-l@mail.opengamingfoundation.org http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
