Sigil, I like your interpretation. I want it to be right. And I think your interpretation is consistent with everything we know of the intent of the OGL.
But Mike has raised an issue that I think needs addressing by someone with more legal knowledge than me, because I think intent or no, his reading has merit. To wit... Section 7 says: "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." That's where Mike's argument rests: it says ANY Product Identity, not just Product Identity contained within the covered work. Now I think it's consistent with everything I've read to say, "No, it applies to Product Identity as identified in the covered works listed in Section 15." And it certainly seems reasonable to me to say that if you're not aware of the work that contains the Product Identity, you can't be in violation of that Product Identity. But then Section 7 says IN THE VERY NEXT SENTENCE: "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." Is there any doubt at all here that "any Trademark" means "any Trademark anywhere" and not just "any Trademark in any covered work listed in Section 15"? And is there any doubt that, if you didn't know about the trademark but somehow managed to indicate compatibility or co-adaptability with it, you would still be in violation and enter the cure period as soon as someone notified you? I'll admit that indicating compatibility or co-adaptability without being aware of the trademark would be a pretty good trick, but by no means impossible. This does not disprove your interpretation. It may certainly be the case that, since trademarks exist outside context of the OGL, they have a different status from PI. It may very well be that PI is ONLY PI within a derivation chain, since it (ideally) must be identified as PI at each link where it appears; and it may further be that if there's not a derivation chain from you to the source. I don't know; but that reasoning is why I think Mike is raising a valid question. I also don't know if Mike is at all correct in his assertion that a court will treat PI violations as it treats trademark violations. I have no basis to judge this, nor even ti judge whether MIKE has a basis for judging this. I consider the assertion to be without no DEMONSTRATED foundation. BUT! I think it may be a good guideline for an individual producer to follow: "Assume that the court's reaction to a PI violation would be similar to and as severe as its reaction to a trademark violation. Given that assumption, are you willing to publish this material?" And it's certainly true that a court can find you in violation of a trademark and order you to recall product even if you didn't know about the trademark. And even if PI is not PI outside of a derivation chain, that only answers the general question. The specific question raised by someone (Lee? It's been so long, I forget!) was something like this: * A releases X, and declares Q as PI within X. * B derives Y from X, does not seek any permission for Q from A, and does not publish Q within Y. * C releases Z, which is not in any way derived from X. Within Z, he defines Q1, which is different from Q in its particulars, but which has the same name as Q. Furthermore, he releases Z-with-Q1 as 100% OGC. Under Mike's very expansive interpretation of "any", C is now in violation of A's PI, without even knowing it exists. But let's assume a much narrower interpretation of "any" that makes C's use acceptable. * Now D releases W, which is derived from Y AND from Z; and within W, he reproduces the Q1 OGC, which has the exact same name as Q. Just to complicate things further, W reproduces nothing from X, and has only the most tenuous connection to X: it's really derivative of some obscure little rule within Y, and is only coincidentally derivative from X. As far as D is concerned, X need not even exist. The question becomes: since X declared the name Q as Product Identity and W contains the name Q AND W references X in its Section 15, has D violated Section 7 with regard to X? I can't really figure out what makes sense. I THINK it makes sense to say that the derivation chain for PI ends at the first product where the PI is not declared. In other words, if by permission Y included Q plus A's PI declaration -- or even if Y reproduced the PI declaration, but not Q itself -- then D would have to treat it as PI when deriving from Y; but since B did not include nor declare Q, the PI constraints stopped with Y (and with any other product that directly derived from X). But just because that makes sense to me doesn't mean it makes sense from a contract perspective. It may be valid contract law to say that W cannot reproduce Q1 because of the PI restrictions of X. What an alphabet soup! Martin L. Shoemaker [EMAIL PROTECTED] http://www.TabletUML.com -- The UML tool you don't have to learn! > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf > Of The Sigil > Sent: Monday, June 30, 2003 4:04 PM > To: [EMAIL PROTECTED] > Subject: [Ogf-l] RE: Independently Designed OGC/PI Clashes > > > Mike Dymond: > > I see where you are getting your interpretation of Section 7 > from. However, > allow me to give you my views on the matter... and then > consult with your > lawyer to determine which one you feel is on more solid legal ground. > > Premise 1: > The Open Game License, as a contract, falls under contractual law. > > Premise 2: > The OGL is an open-ended agreement between parties. These > parties consist > of Party A, who releases Open Game Content, and any number of > Parties B, who > wish to re-use, derive, or otherwise utilize Party A's Open > Game Content. > For ease of argument, we will consider only one Party B for > this thought > exercise. > > Conclusion 1: > Because the Open Game License falls under contractual law, > its use must > satisfy the basic principles of contract law - (1) competent > parties, (2) > consideration, and (3) mutual assent. We will for the sake > of the thought > exercise assume that both parties are competent. This leaves us with > Consideration and Mutual Agreement to consider. > > Consideration is legalese for "to make the contract binding, > you must give > up something in exchange." The OGL grants to Party B the > ability to utilize > copyrighted material (OGC) from Party A. In return, Party B > agrees to > afford the same terms to others (distribute under the OGL) > and to avoid > using certain words/phrases in their material (PI). Thus, > Party A and Party > B both receive Consideration, making the contract binding. > > Finally, we have mutual assent. This means that both parties > must be clear > on the terms of the contract. If the terms are not well-defined, the > contract is not binding. For the purposes of a contract > between Party A and > Party B, the terms are in fact well-defined, including > exactly "what terms > are PI?" > > Because all three of the essential points of contract law are > met, the OGL > is a binding contract between Party A and Party B. > > Now, let us consider the case that you seem to be asserting > based on your > reading of Section 7... that when Party B agrees to the Open > Game License, > it also agrees to the Product Identity designation of Party > C, whom Party B > has never even heard of, but who also published a work under > the Open Game > License. > > Again, we must look for (1) competent parties, (2) > consideration, and (3) > mutual assent. And again, we will assume both are competent > parties, to > take care of #1. > > There is Consideration in the terms of the OGL - Party C is > offering use of > their OGC, and in return are asking for Party B to use the OGL and to > refrain from using words Party C has marked as Product Identity. > > However, (3) mutual assent, is not satisfied. For mutual > assent to occur, > both parties must be fully informed of all the terms. > Because Party B is > unaware of the existence of Party C, there is no way in which > mutual assent > - Party B agreeing to the terms of Party C - can be satisfied. > > Conclusion: If Party B is unaware of Party C, there can be > no contract > between them, and hence, the Open Game License does not and > cannot apply > between Parties B and C, as it is a contract. Because Open > Game License > does not apply between Parties B and C, Party B has NOT > agreed to "avoid" > Party C's Product Identity, and therefore has every right to > use - and > designate as OGC - terms that Party C has marked as Product > Identity. Why? > Again, because no contract exists between Parties B and C... > hence, Party B > does not need to consider Party C's Product Identity when > creating its own > content. > > By the three principles of contract law, specifically mutual > assent, it > seems to be clear to me that the OGL does not create a vast > "pool" of OGC > and PI that everyone is beholden to observe. If it were > intended to do so, > it would require that everyone publishing under the OGL be > provided with a > list of terms that every other person everywhere had PI'd in > order to be > binding (IOW, to have full disclosure of all PI terms as > required by the > OGL). Furthermore, this list of terms would have to change > every time a new > person PI'd something... which would change the terms of the > contract - > which is not allowed under contract law without explicit > consent of all > parties involved. In other words, Publisher 15 would have to > get approval > from Publishers 1-14, who had already entered into the OGL > and agreed to its > terms at that time, in order to designate something as > Product Identity, > otherwise he would not have a valid agreement with Publishers > 1-14 (again, > assuming the OGL is meant to be one big contract that catches > everyone who > ever publishes under it). > > Furthermore, since I have already published several things > under the OGL, it > further presumes I would have the ability to "block" you out of using > ANYONE'S OGC by disagreeing with anything you might wish to > designate as > PI... because I can say, "no, that would change the terms of > the contract by > expanding the number of PI terms - and I don't agree to > that." Since I, as > a Contributor, don't agree to that amendment of PI, you do not have a > license to use ANY Open Game Content. After all, you have to > enter into an > agreement with all Contributors by your reading, and if I > refuse to change > the terms of the contract, you have no agreement with ANY of the > Contributors by your reading. In fact, it means that without > WotC's consent > (as the "first ones in under the OGL") NOBODY could declare > PI. And even if > WotC does agree to the PI of the "second ones in" (perhaps > SSS), the "second > ones in" could block PI designation by the third ones in and > so forth. This > goes on ad absurdium. > > In other words, if we hold to your interpretation of the OGL > as one big > umbrella that all publishers have to come under, you have to > seek permission > from everyone who has ever published under the OGL, anywhere, > any time, in > order to designate ANYTHING as Product Identity - because > that constitutes a > material change to the contract. Clearly, as this is a virtual and > practical impossibility, AND because three years of common > practice have > already shown that the interpretation is that it does not > work in this > manner, it is clear that the OGL is instead intended to apply on a > "case-by-case" basis between only a Party B who is reusing > material and > Party A, the original OGC releaser - regardless of what Party C does. > > Thus, when Party B uses Party A's material under the Open > Game License, it > need not worry about the Product Identity designation of > Parties C, D, and > E. It has no agreement with them, and therefore their > designations of > Product Identity are irrelevant to Party A. However, should > Party A become > aware of and decide to use Party C's OGC material, they then > become beholden > to that product's PI designation as well... though they can > still ignore > Parties D and E. > > That, to me, is why your argument is invalid... because it > relies upon > Trademark Law while mine relies upon Contract Law... and the > Open Game > License is a Contract. So your reading of the Open Game License, > specifically Section 7, seems overly broad. > > The Open Game License is an agreement I enter into with Green > Ronin when I > re-use Bastion Press material... it's something I enter into > with Bastion > Press. That Green Ronin happens to use the same boilerplate > legalese to > license the use of *their* material is irrelevant. In the > same way, when I > completed the FHA Loan Application and submitted it to my > bank for a home > loan, I didn't expect to be able to walk into Bank of America > or NationsBank > or Washington Mutual and expect them to have a loan offer > ready for me just > because they have the same FHA forms, too. Or just because > my employer uses > the same paralegal to get a template for an offer of > employement that the > office down the street does, I don't expect that when my > employer sends that > job offer, that I also have a job with the office down the street. > > Now I may be wrong, and you are welcome to check with your > lawyer on that. > But rest assured, if your interpretation that the OGL is one > big umbrella > that everyone has to come under holds, because all parties > involved must > agree to changes in the terms (including the list of PI > terms), since I'm > "already under the umbrella," by a good couple of years, I > promise you right > here and right now that I for one will use my power of "not > approving the > contract" to keep things simple - by never authorizing anyone > to add any > more PI terms ever again... so you won't have to worry about > people "not > knowing about the PI terms" because I will do my part and not > allow any more > of them. Even if every other publisher agreed to add a term, > if I held out > and said, "no," they couldn't do anything about it. A > contract is in force > and the terms cannot be changed unless EVERYONE agrees - and > if everyone but > me wants a change, well, they're stuck under the old terms. > > Come to think of it, I hope you're right in your > interpretation - then > everyone will have to come crawling to me just to add what > they want to the > list of PI terms. And I could demand monetary compensation. > And if there > are a lot of us like me out there, you'll be priced out of > making material > if you want any PI at all. See, it just doesn't work. Your > interpretation > is flawed if we carry it to its logical conclusion under > contract law. :-( > > --The Sigil > > _________________________________________________________________ > Protect your PC - get McAfee.com VirusScan Online > http://clinic.mcafee.com/clinic/ibuy/campaign.asp?cid=3963 > > _______________________________________________ > Ogf-l mailing list > [EMAIL PROTECTED] > http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l > _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
