<<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.
>>
In declaring compatibility or co-adaptability with a trademark you would have to be cognizant of the item with which you are claiming compatibility.
Mike is raising a query regarding PI that people are not cognizant of. A strict reading of the language does grant Mike's reading as possible, but only by undermining the point of the license and creating an utter lack of a legal safe harbor. That could be a possible situation, maybe the license is nigh on useless, but I imagine that it is not, because the Sigil has raised some questions about how the license could ever be enforced which might trigger section 14 ("reformation"). So, I think it is still valid, if somewhat unclear.
The question becomes, is he right about the language (like I said, a strict reading open his interpretation as a possibility) or is he not (because the line is subject to some different interpretations and a court would not pick the interpretation most totally contrary to the plain intent of the contract).
Because of the possibility of limited reformation if the license can't be enforced "as is", I'm more worried about my initial question. I found a skill list released by GRG. In it are some M&M skills. I almost included that in my current project (which is going to involve Hero Points, etc. from Deeds Not Words, that happen to also be in M&M). I didn't directly contract with Green Ronin re: their PI, but if I am responsible for not using terms, etc. they declared as PI throughout the entire distribution chain (i.e., if I get a product further down stream that has been stripped of their PI)... Well, that's a mess. 'Cause that means that I'd have to go out and fish up all the PI declarations for all the product in the chain. If, however, I don't have to consider the M&M PI declarations if I am the 2nd or 3rd user in a chain originating at M&M, then that undermines their PI -- anyone could then just have their friends derive the OGC from a product, and then they could go back and add parts that rebuilt things functionally similar to the PI that was left out.
Either it's a pain and you have to keep track of the PI of everything in your section 15, even if you didn't put it there, or it seems like some types of PI declarations (that aren't trademarks, for instance) are just pretty weak.
<<
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. >>
You got the basic question right, Martin.
<<I
THINK it makes sense to say that the derivation chain for PI ends at the
first product where the PI is not declared. >>
Then, effectively, some classes of PI are weakened (though not really trademarks or art). A lot of things can be conceptually reduplicated without copyright infringement, and then the 3rd guy in the chain can reintroduce conceptually similar things to the PI declared by the original contributor.
I have a spell called "Shot in the Dark".... It let's the target see at night as well as in bright daylight to fire a bow. I PI the name, but open up the spell. Martin you publish it as "Martin's Nocturnal Sniper Vision". A 3rd party gets the spell and looks at it and says, "hey, wouldn't it be catchy if this were called 'Shot in the Dark'?" To me, this looks like somebody violated a licensing agreement with me, but this 3rd party can claim independent invention and claim he got the spell from you. The legal safe harbor seems to shrink, or alternately the PI protections are diminished. But it looks like one or the other has got to give, and they seem mutually exclusive.
If Mike is right, however, then the license is total junk -- it'll do nothing but foment legal battles over who has a PI declaration in a short write-up they gave to their gamer buddies.
<<It may be valid contract law to say that W
cannot reproduce Q1 because of the PI restrictions of X.
>>
And clearly that is what the originator of the OGC intended -- why bother declaring something as PI if the 3rd guy who picks up the product can just reintroduce the stuff right back into the mix.
For example, M&M opened up rules on building powers -- there are components. The number of components plus one equals the cost of each power. The component rules are OGC. The cost is not, but it is merely derived by adding one to the number of components in the power. So, effectively, if PI ends at the first recipient, then it's not a huge intuitive leap to make powers cost a number of points based on a function of the number of components in them. As, such, the 3rd person in the chain could come up with a simple costing function that mimics or duplicated the stuff in Mutants and Masterminds and then port over Hero Points (common not to just M&M, but to many OGL products now, in one form or another). Ugh... That would all but neutralize Green Ronin's PI. Clearly not what they intended.
Which is more important, however, their PI, or liability issues created by borrowing totally pristine OGC 3rd or 4th hand and not having all the original PI declarations in front of you?
I had largely kept a lid on this question until I considered downstream liability (i.e., how cognizant due people have to be about PI prohibitions further upstream in the distribution chain?). That got me nervous.
Lee
