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

[HUDarklord]

In a message dated 3/9/2005 4:16:50 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

<>


Slavish organization is not entitled to copyright protection per the U.S. Supreme Court in Feist:

http://floridalawfirm.com/feist.html



<<  
In any case, I do know that some large databases (OCLC, is one) consider the organization of their content to be copyrighted in the same way that a poetry anthology is copyrighted by the publisher/editor.  I'm not sure if they have had an opportunity to argue their case, though.
  >>

Lots of people claim copyright on lots of things that aren't copyrightable.  It depends on whether you use a particularly division.  If contact info gathered through the "sweat of the brow" is not copyrightable, and if exceedingly common and obvious forms of data storage are not copyrightable, then simple databases are not copyrightable.

For example, I'd imagine you'd have next to know copyright protection if you took the phonebooks used in Feist and put it in a spreadsheet with "First Name", "Last Name", "Address", "City", "Area Code", and "Phone Number" in there.  When the data is not copyrightable, copyright derives from the creative selection and organization of the data.  If the selection is "everything we've been sent" then selection is "sweat of the brow" and not copyrightable.  Then only the organization of the data produces copyrightability.  Where that is so obvious that most people actually store their data that way then you get no protection for that either.  Minimally creative databases get a thin layer of copyright over their structure.

Cheers,
Lee
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Michael Thibault]

So the phonebook is a stretch, I would like to read a summary of the case to which you are refering.  I have heard of arguments that make a particular judge's definition of "substantial" very difficult to predict (so litigation is significantly more risky) but in a case of complete copying, that maintained the structure of the original work, then it would be copyright infringement.
 
In any case, I do know that some large databases (OCLC, is one) consider the organization of their content to be copyrighted in the same way that a poetry anthology is copyrighted by the publisher/editor.  I'm not sure if they have had an opportunity to argue their case, though.
 
Cheers[EMAIL PROTECTED] wrote:
Actually, some phonebook copyright cases have determined:a) that "sweat of the brow" is not protected (i.e., it is the creativity, not the amount of work involved, that renders copyright)b) and that slavishly sorting something and typing it up may not render something copyrightableThe same would likely be true of a database.  If the content was not creative, but rather consisted of you typing up the names of everyone who responded to a mailing then the content is not copyrightable.  The organization might be copyrightable.  Depends on how creatively you store it, but the data itself is not copyrightable if it is "sweat of the brow" work, even if you busted your butt typing stuff in for weeks and years.Lee
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[HUDarklord]

In a message dated 3/8/2005 2:25:12 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

<< 
Same deal for other reference works -- like the phonebook -- you can reuse the content, but you can't just copy substantial portions of the "work" because the compilation is covered under copyright law.
  >>

Actually, some phonebook copyright cases have determined:

a) that "sweat of the brow" is not protected (i.e., it is the creativity, not the amount of work involved, that renders copyright)

b) and that slavishly sorting something and typing it up may not render something copyrightable


The same would likely be true of a database.  If the content was not creative, but rather consisted of you typing up the names of everyone who responded to a mailing then the content is not copyrightable.  The organization might be copyrightable.  Depends on how creatively you store it, but the data itself is not copyrightable if it is "sweat of the brow" work, even if you busted your butt typing stuff in for weeks and years.

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

[Michael Thibault]

Actually, that copyright would only apply to the individual words as arranged in that work.  The specific original wordings of the definitions would be copyrighted in the way that you are suggesting (not the concepts, which cannot be copyrighted), but the individual words in the list would not be.  
 
So each word is in the public domain, let's assume.  What has been copyrighted by the dictionary publisher is the compilation of these words into a specific format.  The same principle covers the copyright of Databases as "works".  If I made a database with the name and address (all publicly available) of everyone in the world, then I could copyright that compilation of information.  I do not own the copyright to any individual piece of data or entry, but I do own the work as a whole (and so, by extension, substantial portions).  You can't copy my database content without permission.
Same deal for other reference works -- like the phonebook -- you can reuse the content, but you can't just copy substantial portions of the "work" because the compilation is covered under copyright law.
 
Same deal for literary compilations.  The individual stories in The Pocket Rocket Anthology of Hockey Literature are copyrighted each to their author (for simplicity's sake) but the anthology as a whole will be copyrighted by Pocket Rocket Enterprises.  You can negotiate with a single author for reuse of their story -- but if you want to reproduce a substantial portion of the anthology (in order) then you will need permission from PRE.
 
How does this relate to product identity?  Well, you don't have to worry about re-ordering the words found in a dictionary, for starters.
 
And if you want to re-use a single piece that was anthologized (e.g. in Monte Cook's forthcoming "Best of 2004" anthology) then you don't need Monte's permission, you only need the original author's permission.  I would expect that you could just go to the original source for all of your copyright and OGL needs.  Assuming that it is out of print and unavailable, you would then only have copyright responsibilities to the author of the section of the anthoolgy and OGL responsibilties to Malhavoc.
 
Cheers
David Shepheard <[EMAIL PROTECTED]> wrote:
From: "Chris Helton" <[EMAIL PROTECTED]>Subject: Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)I want to take you up on the copyright issue. If you are saying that "by registeringsomething as copyright you are creating product identity" then I have a problem for you.I've got an English Dictionary sitting on my desk that says (c) Wm. Collins Sons & Co.Ltd. That declaration covers a work that contains all the words in the English Language.David ShepheardWebmasterVirtual Eclipse Science Fiction Role Playing Clubhttp://virtualeclipse.aboho.com/http://uk.groups.yahoo.com/group/virtualeclipselrp/___Ogf-l mailing listOgf-l@mail.opengamingfoundation.orghttp://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[HUDarklord]

In a message dated 3/8/2005 7:45:25 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

>You don't register things as copyright, you just declare them to be
>copyright.

I think you're wrong here.

Under U.S. Law you _can_ register things for copyright.  Things are copyrighted when they are set down in a fixed form (different than in past years).  However, some administrative and almost all federal district copyright actions you really want to take require that the copyright be registered.

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

[Spike Y Jones]

On Mon, 7 Mar 2005 23:52:21 -
 "David Shepheard" <[EMAIL PROTECTED]> wrote:
> 
> > And yes, by registering something as copyright or a
> > trademark you are creating product identity, whether
> > you have anything to do with the OGL or not.
> 
> You don't register things as copyright, you just declare them to be
> copyright.

I think you're wrong here.

Spike Y Jones
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[David Shepheard]

From: "Chris Helton" <[EMAIL PROTECTED]>
Subject: Re: [OGF-L] Who can declare Product Identity (Third 
PartyBeneficiaries?)


> And yes, by registering something as copyright or a
> trademark you are creating product identity, whether
> you have anything to do with the OGL or not.

You don't register things as copyright, you just declare them to be copyright. 
Trademarks
can be registered ones or unregistered ones that are declared as trademarks. I 
don't think
they would have different status. Maybe you meant "...by declaring something as 
copyright
or a trademark..."

I want to take you up on the copyright issue. If you are saying that "by 
registering
something as copyright you are creating product identity" then I have a problem 
for you.
I've got an English Dictionary sitting on my desk that says (c) Wm. Collins 
Sons & Co.
Ltd. That declaration covers a work that contains all the words in the English 
Language.

If you interpret the licence to allow a copyright declaration from someone who 
is not a
party to the licence to give things PI status in this way, then this single 
book would
give all the words in existence PI status. That can *not* be the intent of the 
OGL. Either
you didn't mean to say, what it sounded like you were saying or you are 
thinking that
someone would be declaring a list of items to be copyrighted.

David Shepheard
Webmaster
Virtual Eclipse Science Fiction Role Playing Club
http://virtualeclipse.aboho.com/
http://uk.groups.yahoo.com/group/virtualeclipselrp/
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[trustrum]

> LOL. So are you saying you are declaring that as PI?
> :)
>
> And if so, is that "automatically declared" because it
> is a product name, or is that "enumerated" PI? :)
>
> Oh and are you declaring that as a part of a work or
> are you endorsing the "anyone in the world can just
> say something is PI and it is PI even if not in a
> work" school of though?

You marvelous bastard


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

[Clark Peterson]

LOL. So are you saying you are declaring that as PI?
:)

And if so, is that "automatically declared" because it
is a product name, or is that "enumerated" PI? :)

Oh and are you declaring that as a part of a work or
are you endorsing the "anyone in the world can just
say something is PI and it is PI even if not in a
work" school of though?

:)

Clark


--- [EMAIL PROTECTED] wrote:

> > By the way, I love "Canukistan." That is
> hillarious. I
> > am stealing that, I hope you dont mind :)
> 
> I'll grant you a limited license ;)
> 
> 
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[trustrum]

> By the way, I love "Canukistan." That is hillarious. I
> am stealing that, I hope you dont mind :)

I'll grant you a limited license ;)


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

[HUDarklord]

In a message dated 3/2/2005 12:53:25 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

I can't speak for American law, but my lawyer up here in Canuckistan told
me it's not a contract but a license with terms of limitation when I did
my initial review of the OGL and d20 STL with him.


Were it not for the requirement to waive your fair use rights I'm not certain it would be a contract.  It would simply be a grant with limitations on it.  That's the primary form of consideration that's being given up.

Now, on law school exams profs can fib, and call things "consideration" when they aren't really consideration.  So the mere fact that the contract says "offer, acceptance, grant, consideration" is there to color this like a contract.  The only question is whether waiving your fair use rights is a valid form of consideration.  If it is, then it's a contract.  If that's deemed to be "not really consideration" then it's a license that acts as a grant + promissory estoppel.

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

[Clark Peterson]

Wow. Ignore my last post about contract and license. I
didnt know this discussion had gotten this technical.
I see we are way beyond the generalities I was
speaking in in the last post.

Clark

--- [EMAIL PROTECTED] wrote:

> In a message dated 3/2/2005 12:53:25 PM Eastern
> Standard Time, 
> [EMAIL PROTECTED] writes:
> 
> > I can't speak for American law, but my lawyer up
> here in Canuckistan told
> > me it's not a contract but a license with terms of
> limitation when I did
> > my initial review of the OGL and d20 STL with him.
> > 
> 
> Were it not for the requirement to waive your fair
> use rights I'm not certain 
> it would be a contract.  It would simply be a grant
> with limitations on it.  
> That's the primary form of consideration that's
> being given up.
> 
> Now, on law school exams profs can fib, and call
> things "consideration" when 
> they aren't really consideration.  So the mere fact
> that the contract says 
> "offer, acceptance, grant, consideration" is there
> to color this like a contract. 
>  The only question is whether waiving your fair use
> rights is a valid form of 
> consideration.  If it is, then it's a contract.  If
> that's deemed to be "not 
> really consideration" then it's a license that acts
> as a grant + promissory 
> estoppel.
> 
> Lee
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Clark Peterson]

> I can't speak for American law, but my lawyer up
> here in Canuckistan told
> me it's not a contract but a license with terms of
> limitation when I did
> my initial review of the OGL and d20 STL with him.

In a sense, both are right. From a "big picture" view,
any time two people (or more) agree on things for
their mutual benefit, whether orally or in writing,
you can consider it a "contract" and analyze it under
contract law. That is just a sweeping generalization.
Saying the OGL is a license is just a more specific
and precise way to describe the nature of the
relationship.

By the way, I love "Canukistan." That is hillarious. I
am stealing that, I hope you dont mind :) 

Clark


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

[Clark Peterson]

> 1) Acme Games publishes a non OGL roleplaying game
> with no OGC declared.
> 2) Several years later WotC bring out the OGL and
> Acme Games joins the OGC community.
> 3) Someone at Beta Games phones up the guy that runs
> Acme Games and says:
> "I've been looking at some of your old stuff and
> there is something there that I'd really
> like to use in one of my products."
> 4) The head of Acme Games says:
> "I don't mind you using it, but I don't want to have
> to go to the expense of republishing
> it under the OGL. However, as long as you promise to
> declare X,Y and Z as PI for me, you
> can use it."
> 
> Wouldn't this then mean that Beta Games would be
> making PI declarations on behalf of Acme
> Games? Beta Games would then be a third party that
> benefits from the protection of the
> OGL.
> 
> Is this the sort of thing you are getting at?


If that is what he is talking about, I have already
done it a bunch of times.

Any time you use content under license, you are most
likely going to be doing something like that.

For example, our Judges Guild products and our
Grimtooth's Traps book. In those books I declare PI
content that I am using under license.

I dont see any logical or legal prohibition to doing
this. 

Clark


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

[HUDarklord]

From your own article, Tim (on the GPL):
Why isn't it a contract? Because there are no further agreed-upon promises, no reciprocal obligations...

Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work

The essentials of a valid contract are 'parties competent to contract, a proper subject-matter, consideration, mutuality of agreement, and mutuality of obligation.' 


>From Lee:
You got to read the whole article you posted, Tim, and read it more closely.  If the GPL had consideration for the grant and the above factors, it would be a contract.  Not all shrinkwrap licenses are considered binding contracts.  The GPL (I'm no expert on it) if lacking any of the essential elements, would not be a contract.  I've already said not all licenses are contracts.  Some are grants and promissory estoppel.  Some ARE contracts.  If the above requirements are met, then the license is also a contract.

Am I clear that there are two types of licenses:

a) grants + promissory estoppel; and
b) contracts (with exchanges of promise for a promise or promise for an action + offer + acceptance + grant + consideration + meeting of the minds).


The GPL is probably a license of type "a".  The OGL has all the essential elements of a contract (VERY VERY VERY different from the GPL in that respect) and so is a contract as well as a license.

Licenses of type "a" are enforceable by traditional copyright law.  You have no right to use the copyrighted work without permission.  Type "a" licenses are permission, and when you go outside the permission, you are simply engaging in copyright infringement without promissory estoppel to protect you.  Licenses of type "a" do not ask you to give up anything in return, they just tell you the only way you are permitted to use a grant.

Type "b" licenses have consideration (like "you will not claim compatability with me, which you normally entitled to do as a matter of fair use") and failure to uphold to those elements (like if I start making games and claiming compatibility with your work) result in contractual breaches which are actionable as a matter of contract law.

Tim, your own article spelled out what a contract is and then said the GPL wasn't one because it lacked specific elements common to contracts.  It didn't say, "no license in the world for intellectual properties is a contract."

Lee






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

[trustrum]

> In a message dated 3/2/2005 12:01:10 PM Eastern Standard Time,
> [EMAIL PROTECTED] writes:

> If you disagree with me, find me a basic book on Contract Law that would
> go  through the above steps and then say the result is not a contract.

I can't speak for American law, but my lawyer up here in Canuckistan told
me it's not a contract but a license with terms of limitation when I did
my initial review of the OGL and d20 STL with him.


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

[Tim Dugger]

Here we go.. I finally found the Groklaw link I was looking for, but 
before posting it, here is an except from the article...

Here is a definition of 'license' from Steven H. Gifis' "Law 
Dictionary, 2d Edition:

"LICENSE: A right granted which gives one permission to do 
something which he could not legally do absent such permission; 
'leave to do a thing which the LICENSOR [the party granting the 
license] could prevent.'" 

A contract, on the other hand, is defined like this: [1]

"a promise, or set of promises, for breach of which the law gives 
a remedy, or the performance of which the law in some way recognizes 
as a duty. I Williston, Contracts Section 1. The essentials of a 
valid contract are 'parties competent to contract, a proper subject-
matter, consideration, mutuality of agreement, and mutuality of 
obligation.' 286 N.W. 844, 846: 'a transaction involving two or more 
individuals whereby each becomes obligated to the other, with 
reciprocal rights to demand performance of what is promised by each 
respectively.' 282 P. 2d 1084, 1088. 'The total legal obligation 
which results from the parties' agreement as affected by law.' U.C.C. 
Section 1-201." 

For the full article go here -->
http://www.groklaw.net/article.php?story=20031214210634851
TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
 Iron Crown Enterprises - http://www.ironcrown.com
 E-Mail: [EMAIL PROTECTED]




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

[HUDarklord]

In a message dated 3/2/2005 12:01:10 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

<
a license with terms, some of which outline situations by which the
license can be terminated. That is not a contract.
>>

It is a unilaterally drafted contract of adhesion.  The fact that it has termination clauses does not make it not a contract.

Some licenses are contracts.  Some are merely promissory estoppel.  This one is a contract.

Contracts have the following nature:

1) they are an agreement between two or more parties; and
2) there is a meeting of the minds as to the terms of the agreement; and
3) both parties (overtly or by their behavior) express an intent to be legally bound by their agreement; and
4) an offer is made; and
5) the offer is accepted; and
6) there is either a promise for a promise, or a promise for an action, generally resulting in a typical contract of a grant in exchange for some form of consideration for that grant

That's basically the simple definition of a contract.  It doesn't have to involve signatures.  It doesn't have to involve negotiations (such as when you walk up to a barber, sit in the chair, get your hair cut, and hand him $20.00 in silence).  It has to involve the above steps to be covered under U.S. contract law and typically under the uniform commercial code of most states.

If you disagree with me, find me a basic book on Contract Law that would go through the above steps and then say the result is not a contract.

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

[HUDarklord]

In a message dated 3/2/2005 11:59:08 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

It's not a contract. Neither I nor WotC had to sign anything when I use
it. It's a license.

Contracts don't have to be signed they can be verbal.  You can even have contracts which are engaged in without speech as long as there is offer+acceptance+grant+consideration+a meeting of the minds as to the terms of the agreement.

You and I can enter into a contract over the phone with no signatures.  That's still a contract.

It is  a license.  Nobody is arguing that.  But any agreement with offer + acceptance + grant + consideration should be a contract.

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

[trustrum]

> In a message dated 3/2/2005 11:39:31 AM Eastern Standard Time,
> [EMAIL PROTECTED] writes:
> But the terms "offer", "acceptance", "grant", & "consideration" are used
> in  this license.  And it is a binding contract.

It is a conditional license with only one party identified by name. It is
a license with terms, some of which outline situations by which the
license can be terminated. That is not a contract.


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

[trustrum]

> On 2 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who
> can declare Product Identity (Thi:
>
>> The OGL _is_ a contract.

It's not a contract. Neither I nor WotC had to sign anything when I use
it. It's a license.


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

[HUDarklord]

In a message dated 3/2/2005 11:39:31 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

<
>>

But licenses with grant, consideration, offer, and acceptance are contracts under U.S. law.

If they are merely a freedom to act (with no consideration exchanged) then they are merely a form of promissory estoppel.  They are gifts.  They are grants not to sue you in exchange for nothing.

But if there is offer, acceptance, grant, and consideration, then they are a contract.

Since an OGL user gives up some of his rights under U.S. law (in the form of his ability to, via fair use, make compatibility declarations, etc.) there is consideration for the grant.

I am not an expert on other open source licenses, but they may merely be a form of promissory estoppel (i.e., you are estopped from bringing suit because you promised not to sue if the person behaves in a certain fashion).

But the terms "offer", "acceptance", "grant", & "consideration" are used in this license.  And it is a binding contract.

<
me see if I can find it.
>>


If it's on some of the other open source "licenses" it may not be applicable in the slightest to the OGL.  Still, I'd like to see what you come up with.  Maybe somebody has a theory that: offer + acceptance + grant + consideration != contract.

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

[Tim Dugger]

On 2 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can 
declare Product Identity (Thi:

> The OGL _is_ a contract.  It has grant and consideration, offer and
> acceptance.  And, to the best of my knowledge (and I could be wrong),
> any contract can have third party beneficiaries if the empowerment of
> such third parties is consistent with the intent of parties involved
> in the contract.
> 

It is a license.

> Have any case law citations which suggest that licenses differ from
> other types of contracts regarding third party beneficiaries.

There was an article on this not too long ago on Groklaw, IIRC. Let 
me see if I can find it.

TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
 Iron Crown Enterprises - http://www.ironcrown.com
 E-Mail: [EMAIL PROTECTED]




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

[HUDarklord]

In a message dated 3/2/2005 10:24:32 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

<

Licenses do not have third party beneficiaries. And the OGL is a 
license...
>>

The OGL _is_ a contract.  It has grant and consideration, offer and acceptance.  And, to the best of my knowledge (and I could be wrong), any contract can have third party beneficiaries if the empowerment of such third parties is consistent with the intent of parties involved in the contract.

Have any case law citations which suggest that licenses differ from other types of contracts regarding third party beneficiaries.

I'm always happy to be wrong if it means I learn something new and cool.

Thanks,
Lee
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Tim Dugger]

On 2 Mar 2005 [EMAIL PROTECTED] scribbled a note about Re: [OGF-L] Who can 
declare Product Identity (Thi:

> That may depend on the jurisdiction, but isn't necessarily true (if
> memory serves) in all jurisdictions.  What's most important is whether
> the language of the license can be construed so as to make third party
> beneficiaries possible, and whether that was an intention of the
> parties to the contract.

the key point here is the word "contract".

Licenses do not have third party beneficiaries. And the OGL is a 
license...

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

[HUDarklord]

I think the answer to this question is not so much whether third parties were explicitly allowed for, but more whether third party beneficiaries are consistent with the intent of the parties using the OGL.

I don't think third party beneficiaries were intended by the license (which is admittedly vague) except for maybe one situation: you license a property from a company to use in an OGL product and they give you a right of agency allowing you to declare, on their behalf, some PI if you are publishing a work under the OGL. Contracts without explicit third party beneficiaries have third party beneficiaries with standing to enforce the contract ONLY where it is the intent of the parties that third parties should be allowed to do so. If a contract, unintentionally creates third party beneficiaries they are called "incidental, unnamed, unintended third party beneficiaries" and are, in many, if not all, jurisdictions unable to bring suit to enforce a contract. So, I don't think Chris' reading is consistent with U.S. Contract law because it would actually be adverse to parties to the contract and was exceedingly likely not an intended part of the contract. You don't interpret a vague portion of a contract to create third party beneficiaries that are against the interests of all the contracting parties where it is not the clear intent of the parties to allow for it. 

IANAL 
YMMV 

Lee







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

[HUDarklord]

In a message dated 3/2/2005 9:12:27 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

<
as such in the contract.>>

That may depend on the jurisdiction, but isn't necessarily true (if memory serves) in all jurisdictions.  What's most important is whether the language of the license can be construed so as to make third party beneficiaries possible, and whether that was an intention of the parties to the contract.

If parties intend to create third party beneficiaries and draft vague language that _might_ be construed to allow third parties to interact with the contract, then third parties may have standing to enforce some part of the contract.  While unintended third party beneficiaries might not have standing.

Sometimes third party beneficiaries are allowed (even if not named specifically in the contract) if:

a) the license doesn't provide that there AREN'T ANY; and
b) if the intent of the contracting parties was to allow for third party beneficiaries even if it was not clearly stated

The question can really be summed up as: "are third party beneficiaries an intended consequence of the PI definitions?  If so, under what circumstances are third parties intentionally allowed even if the language of the contract was too vague to be explicit about the intention?

Chris Helton has effectively claimed that because the PI definition simply says the owner of the PI must declare the PI, and because it doesn't say that the owner is a contributor or party to the OGL, that third parties can take action under the OGL to enforce their PI rights even if they aren't parties to the OGL.

Now, leaving a PI licensing situation aside (where a third party might have rights to declare through their agents some PI if their agents are the ones signing on to the OGL), the question really is are third parties who aren't directly or indirectly parties to the OGL eligile to bring an OGL suit to assert PI rights.


<>

Under some case law third parties who are not named in the contract can get involved.  Moreover, almost all contracts that don't specifiy otherwise can have agents and assignees of obligations or benefits.  This question is about third parties who are neither assignees nor have agents tangled up in the OGL.

<
against you, but not though the PI portion. Part of the OGL is an 
agreement not to use trademarks and such of others without 
permission of the owner. >>


That's just for compatibility and co-adaptability declarations.

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

[Tim Dugger]

On 2 Mar 2005 at 8:32, [EMAIL PROTECTED] wrote:

> They 
> threaten me, saying they'll sue me under the OGL for breach.  They
> aren't a party, but claim to be a third party who automatically
> benefits from the OGL (just as, they claim, anyone in the world, be
> they a contributor to an OGL product or not, can be a third party
> beneficiary simply by declaring PI outside of an OGL-covered work). 
> They try to sue asserting OGL rights to PI protection which I have
> supposedly violated.

However, IIRC, third party beneficiaries of a contract must be denoted 
as such in the contract. Also, (again IIRC) licenses do not have "third 
party" portions. In short a license is nothing more than written 
permission of the owner of a bit of property allowing somebody else to 
use that property in exchange for considerations.  In the case of the 
OGL, this license grants certain usage rights to material marked as 
open content, so long as that user abides by certain conditions set 
forth in the license.

This license is cumulative and addative (thus open game content can 
be garnered from multiple sources, and you can add to it, and those 
sources follow the life of the content (via the Section 15 statement).

Remember, a license is the granting of specific rights to a specific 
person under specific conditions.

Thus in your example, DC cannot use the OGL, because it is not the 
entity who granted the rights or set the conditions of the OGL. 

However, If you use that quote from them within open game content 
(through fair use terms), you had damn well better make sure that it is 
not released into OGC, and that you do have the proper copyright and 
trademark use clauses at the beginning of the product...

Hmm... I did just think of a possible way that they might use the OGL 
against you, but not though the PI portion. Part of the OGL is an 
agreement not to use trademarks and such of others without 
permission of the owner. Thus while they could not sue for breach of 
the OGL (they do not have that right, not being a party of the OGL), 
they can sue you and then use the OGL as evidence for their case, 
especially if they espouse a wider definition of "WORK" than you do.







TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[HUDarklord]

In a message dated 3/2/2005 12:04:01 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

<
Games? Beta Games would then be a third party that benefits from the protection of the
OGL.
>>

Yes.

However, Chris Helton seemed to contend that third parties could benefit from PI protections even if they:

a) had no agents signing onto the OGL on their behalf; and
b) even if they had not signed onto the OGL themselves

The above situation you've presented seems to create a third party who may be entitled to bring suit directly or indirectly (through their agent) to protect their PI.


<>

See what I _think_ Chris was claiming above.  That's what I was originally wondering about I was also tangentially thinking aloud about licensing situations like the one you've described.

<>

Yes.  The contract doesn't explicitly bar agents and assignees in my opinion.

<< why would I not be able to declare the name "Rebecca 'Newt' Jordan" to be
Product Identity of 20th Century Fox instead of Product Identity of myself?
>>

You can only do it if the owner gives you permission to be his agent, because only the owner can declare PI.

<
situation. Maybe you should give us that example after all.
>>

DC Comics publishes NOTHING under the OGL, directly or indirectly.  They declare on their site "everything we own is PI".  I print a single sentence from one of their comics and appropriately note its source.  I presume, rightly so, that this would normally be fair use and that they can't stick me for copyright infringement by reprinting one sentence and attributing it.  DC Comics is uppity and wants me to stop.  They know a copyright lawsuit won't stick.  They threaten me, saying they'll sue me under the OGL for breach.  They aren't a party, but claim to be a third party who automatically benefits from the OGL (just as, they claim, anyone in the world, be they a contributor to an OGL product or not, can be a third party beneficiary simply by declaring PI outside of an OGL-covered work).  They try to sue asserting OGL rights to PI protection which I have supposedly violated.

Chris Helton has noted that the PI declaration doesn't note that you have to be a Contributor in that particular version of the license or in ANY version of the OGL to declare PI.  And that yet, somehow, people are bound by such PI declarations.

Your thoughts?  I think that this is outside the clear interest of the parties "signed" to the contract and should naturally be barred since the contract doesn't explicitly provide for third party beneficiaries acting wholly outside the OGL.

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

[David Shepheard]

From: "Tim Dugger" <[EMAIL PROTECTED]>
Subject: Re: [OGF-L] Who can declare Product Identity (Third 
PartyBeneficiaries?)


> On 28 Feb 2005 at 21:47, [EMAIL PROTECTED] wrote:
>
> > However, there's nothing saying explicitly that PI has to be declared
> > by anyone in particular.  I was thinking that you had to be a party to
> > the contract to declare PI, but then I asked myself this question: can
> > a third party beneficiary declare PI without actually being a party to
> > the contract or an assignee.
> >
>
> Not exactly sure what you are saying (an example would have been
> nice - hehe), but I will respond to what I think you are saying.

I'm not sure what he was saying. I've got an idea of a situation where there 
could be a
third party that wants stuff declared as PI but hasn't published the document 
it is in
under the OGL. Maybe you could tell me if this is the sort of thing you are 
talking about.

1) Acme Games publishes a non OGL roleplaying game with no OGC declared.
2) Several years later WotC bring out the OGL and Acme Games joins the OGC 
community.
3) Someone at Beta Games phones up the guy that runs Acme Games and says:
"I've been looking at some of your old stuff and there is something there that 
I'd really
like to use in one of my products."
4) The head of Acme Games says:
"I don't mind you using it, but I don't want to have to go to the expense of 
republishing
it under the OGL. However, as long as you promise to declare X,Y and Z as PI 
for me, you
can use it."

Wouldn't this then mean that Beta Games would be making PI declarations on 
behalf of Acme
Games? Beta Games would then be a third party that benefits from the protection 
of the
OGL.

Is this the sort of thing you are getting at?

If it is then I can't see how allowing the OGL to be used in *this* way is 
damaging. Beta
Games is benefiting from getting content from Acme Games without the associated
development costs. Acme Games is benefiting because their PI is being protected 
without
them having to republish.

On the other hand if someone was to say that doing this would somehow strip 
Acme Games of
any rights to declare anything in the stuff they allow Beta Games to use as PI 
then it
*would* be damaging.

Acme Games would then have three choices:

* Refuse to help out Beta Games in order to protect their PI.
* Allow their content to be reused and forfeit any ability to protect the PI if 
they later
want to publish a second edition of the setting under the OGL.
* Publish a new "product", under the OGL, containing whatever Beta Games wants 
to use.

So if this is your interpretation of how the law works, we could end up with a 
lot of
publishers refusing to help their friends because they are too scared of 
loosing rights to
stuff that would be PI if the product was published today. That is not good for 
players,
publishers or anybody because the content never sees the light of day.

Alternatively we might end up with publishers engaging in the farce of sticking 
a block of
text from a 10 year old product into a letter then sticking a copy of the OGL 
on the end
and a PI/OGC definition onto the front!

:-O

In fact if that is the only way to allow people to use copyrighted stuff that 
isn't
protected by the OGL, I could even imagine somebody getting stationary printed 
with the
OGL on it to save time!

;-)

Section 15 entries would then contain pairs of things like:
  Old Role Playing Game - Copyright Acme Games 1972
  You Can Use Our Old Role Playing Game Letter - Copyright Acme Games 2005

Forgetting what the OGL says for a moment (because nobody seems to actually 
know exactly
what it means - LOL) isn't it logical that something that is included in an OGL 
product,
that has been created by another company should be declarable as either PI or 
OGC on their
behalf.

This could apply outside the RPG industry as well. If I was to sit down and 
create an d20
Aliens product, why would I not be able to declare the name "Rebecca 'Newt' 
Jordan" to be
Product Identity of 20th Century Fox instead of Product Identity of myself?

Mind you, for all I know you might have intended a totally different third party
situation. Maybe you should give us that example after all.

David Shepheard
Webmaster
Virtual Eclipse Science Fiction Role Playing Club
http://virtualeclipse.aboho.com/
http://uk.groups.yahoo.com/group/virtualeclipselrp/
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Re: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[HUDarklord]

In a message dated 3/1/2005 12:20:38 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

<
more clearly I can say it, is that the PI declaration
is not the only PI that exists under the OGL.
>>


Weldon, he seems to now be claiming that:

a) only trademarks need to be declared as PI; and
b) everything else that is PI eligible is PI even if it's not declared.

Imagine that only poses and trademarks are PI eligible.  He's reading the definition to say:

"PI means any trademarks clearly declared as PI and all poses."

As opposed to:

"PI must be declared as 'Product Identity' to be considered PI.  The only things that you can declare as PI are your poses and trademarks."

The sentence's punctuation is open to multiple constructions.  The former reading I have eschewed simply because it makes it MORE work to protect a trademark than a pose, and trademarks are almost the definition of "Product Identity", so I find that reading labored.  I think the second reading is closer to the intent of the contract since the contract says explicitly that everything in the work covered by the license is OGC if it ain't PI, and so you are required to demarcate the line between PI and OGC to make it very clear.

Chris also seems to think (and I say _seems_ 'cause I have no notion what Chris actually think any more) that the license has third party beneficiaries with enforceable contractual rights -- people who can sue you for breach of the OGL because they have intellectual properties from the PI list which are protected as PI (except for trademarks for some reason) even if they don't mark them as PI.


<>

No, that's just the logical implication of having undeclared PI by everyone who has ever drawn a pose or used language having contractual rights to sue for breach against anyone who has agreed to use the OGL.

Lee
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RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Chris Helton]

--- Weldon Dodd <[EMAIL PROTECTED]> wrote:
> Well, you've lost me too. The license says that any
> material that is eligible to be PI must be declared 
> to be PI and must be excluded from OGC to
> actually be PI. It must also appear in a work
> licensed under the OGL to be
> covered by the OGL. Under what conditions can
> something be PI without
> meeting these conditions and being covered under the
> OGL?

Ok, again...from section 1(e) of the Open Gaming
License this is the definition of Product Identity:
"'Product Identity' means product and product line
names, logos and identifying marks including trade
dress; artifacts; creatures characters; stories,
storylines, plots, thematic elements, dialogue,
incidents, language, artwork, symbols, designs,
depictions, likenesses, formats, poses, concepts,
themes and graphic, photographic and other visual or
audio representations; names and descriptions of
characters, spells, enchantments, personalities,
teams, personas, likenesses and special abilities;
places, locations, environments, creatures, equipment,
magical or supernatural abilities or effects, logos,
symbols, or graphic designs; and any other trademark
or registered trademark clearly identified as Product
identity by the owner of the Product Identity, and
which specifically excludes the Open Game Content"

This is the definition of Product Identity that I have
been using all along. You will notice that since it
contains the phrase "and any other trademark or
registered trademark clearly identified as Product
identity by the owner of the Product Identity, and
which specifically excludes the Open Game Content"
that I do understand that declared PI is a part of PI.
What I have been saying, and I am not sure how much
more clearly I can say it, is that the PI declaration
is not the only PI that exists under the OGL.

And then, from section 7 (Use of Product Identity):
"You agree not to Use any Product Identity, including
as an indication as to compatibility, except as
expressly licensed in another, independent Agreement
with the owner of each element of that Product
Identity. You agree not to indicate compatibility or
co-adaptability with any Trademark or Registered
Trademark in conjunction with a work containing Open
Game Content except as expressly licensed in another,
independent Agreement with the owner of such Trademark
or Registered Trademark. The use of any Product
Identity in Open Game Content does not constitute a
challenge to the ownership of that Product Identity.
The owner of any Product Identity used in Open Game
Content shall retain all rights, title and interest in
and to that Product Identity."

You will notice that this section does not only
include PI that has been declared to be so, but
actually anything that is defined as PI under section
1(e) of the license. This is all that have have been
saying all along.

You will notice that by saying this I am not stating
that PI does not need to be declared, nor am I saying
that there is a gigantic pool of PI anyplace, nor am I
saying that there is one true way to declare PI. I
have never made those statements, and in fact I am
stating what I read in the OGL. None of these stances
or staements have changed since I started addressing
this subject.

Once again, I will state that I am not trying to
impose my interpretation of the OGL on anyone and that
what I am interpresting only has to do with me.

Thanks,

Chris
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RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Weldon Dodd]

 

> -Original Message-
> From: Chris Helton
> For the last time, I have never said that PI doesn't have to 
> be identified. Saying that there is other forms of PI (as 
> defined be the license) does not mean that you do not have to 
> declare PI. That is just not the only type of PI that a 
> publisher has to be congizent of.

Well, you've lost me too. The license says that any material that is
eligible to be PI must be declared to be PI and must be excluded from OGC to
actually be PI. It must also appear in a work licensed under the OGL to be
covered by the OGL. Under what conditions can something be PI without
meeting these conditions and being covered under the OGL?


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RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Weldon Dodd]

 

> -Original Message-
> From: Chris Helton
> 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.

Not necessarily. There are cases where you can violate the OGL without
violating copyright and trademark laws. No one is saying that trademark and
copyright don't apply to works licensed under the OGL, but some are saying
that we should consider those two things (OGL & copyright) separately.

And of course you can use IP that doesn't belong to you, you just run a risk
of being sued. The question is, what standing do they have to sue you? Can
they sue you for breach of the OGL itself or for US law or both?

> Again, you don't know what you are talking about. The OGL 
> isn't a contract. It is a license. Two entirely different 
> things. And even if it were a contract you still can't ignore 
> clauses in a contract because you think that they don't apply to you.

Huh? A license is a contract. There is an offer, acceptance, and
consideration in the OGL. It's a contract.

> > PI is any clearly identified trademark and any of a number of other 
> > things whether or not they are clearly identified.
> 
> No, I am not. Again you are oversimplifying and attempting to 
> put words into my mouth. Again, stop doing that. However, 
> what you are saying is only a part of what can be Product 
> Identity under the OGL. It is not the only thing, and I am 
> not saying that it is the only thing.

Well, that's what I thought you were saying too. For something to be PI it
has to be eligible to be PI, it must be clearly identified as PI, and it
must be excluded from OGC. It sounds like you are saying that it only needs
to be eligible to be PI and the second two conditions don't always apply.


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RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Weldon Dodd]

> From: Chris Helton
> Have you ever heard of copyright and/or trademark 
> infringement? It happens all the time, and all that the OGL 
> does is hardwire it into the license.

The OGL doesn't define copyright and trademark infringement. It only says
that trademarks are also eligible to be PI if marked as such. It then says
what you can and can't do with PI. The license also says that you can't use
trademarks to indicate compatability without express permission to do so. At
no point does the OGL even attempt to identify infringing uses of copyright
or trademarks under US law.

> And yes, by registering something as copyright or a trademark 
> you are creating product identity, whether you have anything 
> to do with the OGL or not.

I disagree. PI only has meaning within the context of licensed works. If I
use copyrighted material or a trademark in my OGL work, you can sue me for
copyright or trademark infringement, not for breach of the OGL.


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

[Tim Dugger]

Okay

Put down the mouse and step away from the keyboard

Now take a deep breath, and then take a few more.

When this thread started, I thought I had an idea of what was 
actually being discussed. Now I am not so sure.

I think that it might be better if Lee gave us a specific example 
(need not be factual, just specific) of what he is talking about 
(this is were I am getting confused - it seemed he was talking about 
one thing, and then later on talking about something else - at least 
to me).

TANSTAAFL
Rasyr (Tim Dugger)
 System Editor
 Iron Crown Enterprises - http://www.ironcrown.com
 E-Mail: [EMAIL PROTECTED]




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

[HUDarklord]

In a message dated 3/1/2005 11:14:26 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

<
does a third party designate PI without releasing OGC?
>>

Good eye.

That doesn't quite answer Chris' other implication that once something is PI, it is PI to everyone everywhere, even if they aren't a party to a particular instance of the OGL.  I think my most recent posts would apply there.  But good eye on the general point.

<
Product Identity (or viable as you put it). However, trademarks are not
product identity until the two conditions are met that the PI must be
clearly marked as such and it must be excluded from OGC. Therefore, the OGL
only says it is off limits within the context of the OGL if the material
meets those conditions. It may still be off limits as defined by copyright
and trademark laws, but that is outside the OGL.
>>


Things that are copyrightable seem to be PI eligible (like lists of spell names).  I'll buy that it's a little vague, and in need of rewording.  The license seems to overtly allow for it, but the fact that the section is called "Product Identity" is what casts doubt over things a very little bit for me.

Lee
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RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Weldon Dodd]

> Are there rights for third party beneficiaries under the license?

I would think that a third party could sue a publisher to challenge Section
5, "Representation of Authority to Contribute." They could argue that the
publisher did not have authority to contribute because they don't own the
material in question and don't have a license to use it. Really it would
fall under copyright law, but if it were me I would name the infringing
product AND Section 5 as a breach of copyright law. The owner isn't exactly
suing for a breach of the OGL, but the owner is suing because the infringing
publisher's representation that they own the material in the OGL is a second
example of illegal use of the copyrighted material.



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RE: [OGF-L] Who can declare Product Identity (Third PartyBeneficiaries?)

[Weldon Dodd]

> -Original Message-
> From: Chris Helton
> 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.

Section 2 - The license only applies to OGC released under the license. How
does a third party designate PI without releasing OGC?

> 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.

Copyright is a little vague, but trademarks are clearly eligible to be
Product Identity (or viable as you put it). However, trademarks are not
product identity until the two conditions are met that the PI must be
clearly marked as such and it must be excluded from OGC. Therefore, the OGL
only says it is off limits within the context of the OGL if the material
meets those conditions. It may still be off limits as defined by copyright
and trademark laws, but that is outside the OGL.


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