RE: [Ogf-l] RE: Independently Designed OGC/PI Clashes

[Martin L. Shoemaker]

Title: Message

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Sent: Monday, June 30, 2003 5:40 PM
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Subject: Re: [Ogf-l] RE: Independently Designed OGC/PI Clashes

In declaring compatibility or co-adaptability with a trademark you would have to be cognizant of the item with which you are claiming compatibility.  

While I think you're right as a practical matter, there are at least two ways in which this can be more complicated:

 

1. You inadvertantly use a trademark, and the owner of the trademark asserts that your use is a claim of compatibility or co-adaptability. He's wrong, but you can have a fight to prove it.

 

2. You claim compatibility or co-adaptability with some game mechanic, but don't realize that the mechanic is also a trademark. Here you're clearly wrong, and will have to correct it; but you were wrong through neglect, not through intent.

 

 

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, 

As many have learned, the OGL provides no guarantee that compliance won't be a pain. In general, if a court has to choose between "complying is a pain" and "someone's IP will be compromised", I hope they lean toward the pain interpretation. If the pain gets so great as to crash the system, that will be bad; but if the pain is tolerable, I don't mind, because entering into the license is voluntary, and people have the opportunity to weigh the pain (and other costs) against the benefits.

 

<<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.  

If this is not done in a deliberate effort to circumvent PI, I'm a lot less troubled by it. I don't know what a court might say, but I feel like PI is being overused by quite a stretch. Your Hero Points example is typical: I understand entirely that they want to close off and protect their Hero Point rules, which are (presumably) not derivative of OGC and thus legitimate to claim as non-OGC; but I'm not convinced that PI was the best way to do this, since it closes off not just the rules but also the name. As you have pointed out, "Hero Points" the name have precedent in a lot of other games, and independent reinvention was inevitable. I'd be happy with a PI interpretation -- or any other legal mechanism -- that protected their non-derivative mechanics but not the name.

 

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. 

 

I so much want Mike to be wrong; but I have no legal training to support me on this.

 

Martin L. Shoemaker

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