<<Sorry I do indeed use copyright in some cases where I should have said trademark. However I am not claiming that anything PI'ed has to be a trademark. I am simply stating that in my opinion current trademark and copyright law is the bet place to lookfor indications as to how a court would rule on PI (or anything else OGL related).
>>
Sure, but if a PI'd item is a name or a concept, and it's not trademarked or patented, then trademark law and copyright law will fall silent on the subject. Then only the OGL has any real say over what can and can't occur.
<<Over time ther will have to be established a central repository that allows us all to check.>>
There will NEVER be a central repository that contains a list of all the PI declarations and OGC declarations and Section 15s from every product.
Second, open licenses exist precisely so you do not have to check -- everything _should_ be right in front of you in an ideal world.
<<There will have to be because I have no doubt that a claim that you where not aware
of someone elses PI will hold absolutely no water with any court anywhere!
>>
I have complete confidence that it would. Some common feats, concepts, names, etc. are pretty much bound to be independently created and used.
I'm asking the question because I already have to d20-compatible books in which the situation has occurred.
<<
At the moment the amount of PI and OGL out there means that there is a reasonable chance that something you have created is not stepping on anyones toes.
>>
Already happened. I've seen everything from skill name lists (for new skills), to character names, to monster names, to concepts being declared alternately as PI or OGC by people. I had a very explicit example in mind when I posed the question.
<<Under normal cercumstances I would agree, but WotC has created this thing clled PI that works very similarly to trademarks. >>
No, in fact, they are not. They work like PI. Trademarks have a requirement that I actively have to use them in trade, that I would benefit by advertising and registering them, and which become stagnant if I fail to use them in trade for a long period of time.
PI stays PI for the duration of the license. It doesn't fall stagnant if you fail to re-declare your PI after 5 years.
Honestly, it functions next to nothing at all like a trademark in many cases.
<<Hence we should look to trademark law on how we think it would be dealt with. If you
created 'Bobby Sue McGill' in a d20 module and the PI'ed it and then I dod the same then you have every right to sure me! That is what PI is for! It imposes extra restrictions on all of us.
>>
PI is not a global registration network. It's not the same as a repository like the U.S. Patent and Trademark office. It is an agreement between you, the PI holder, and me, the guy who wants to use your OGC, that I won't use your PI, if you'll let me use your OGC.
That's a private contract between two individuals. The OGL then has a quasi-viral clause which allows that agreement to be expanded to include other people further down stream, however, they are assumed not to copy the PI through overt agreement, but because the copy of the data they got never contained any PI to begin with, so they couldn't possibly willfully copy the PI unless they looked up the original source.
However, certain common names, concepts, etc., when declared as PI may end up smashing back together by chance to recreate something similar to the original PI-containing work.
<<>> The OGL expands upon the normal grants of copyright law and extends
>> protection (if declared) to names of characters.
See, you agree with me :-)
>>
No, I really don't. It extends the protection via CONTRACT LAW not by writing new statutes into Title 17. If something is purely a contract law matter then Title 17 won't really be applicable.
Some OGL lawsuits might indeed involve contract, trademark, and copyright law. But the queries I made involved only terms or concepts that could only hope to be protected by contract law, and not by copyright law or trademark law directly.
<<I do not believe that the 'unrelated' argument would wash! The argument comes down to could one affect the other and in this small market place the answer is YES!!!
>>
Actually it does matter. The name "Bobby Sue McGill" has NO PROTECTION as a name if it is not trademarked, or if it is not used with a very specific character conception.
To gain the protection, you have to PI the name, then hand me a work and get me to include your product title in my Section 15. Then we have made a contract for me not to use the character you created. This agreement is obfuscated further down stream where the PI declaration is trimmed away.
But you are mistaken if you believe that PI'ing the name in one product gives you global coverage in all OGL-bearing products, even if they don't Section 15 you.
Trademarks can be PI'd. But PI'd items are not always per se governed by copyright or trademark protections. Frequently they have only licensing protections available to them.
<<Yup. That is exactly the case! You could become some sort of PI squater if you wanted to but some elementary maths will very quickly show that the effort would just not be worth it, there are vertually a limitless number of names out there and the same goes for themes etc. It would not make ecconomic sense.>>
This is not the case. PI is a useful protective category only under a grant & consideration contract scheme. If you offer me a contract and I rip it up, then we have no agreement. Further if you have a contract on your desk, and I never see it and we've never spoken, then we have no agreement. From my perspective, then, you and I have no agreement at all. The result is, that unless other laws protect your PI, then I can use it, however, I don't get to verbatim extract your copyrighted OGC.
I accept both, or I accept neither, but via a contractual exchange or refusal to contract.
Lee
