> From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf > Of The Sigil > Sent: Monday, June 30, 2003 6:46 PM > To: [EMAIL PROTECTED] > Subject: [Ogf-l] RE(2): Independently Designed OGC/PI Clashes > > It seems no stretch to say that since one term of the Open Game License is, > "I agree to refrain from using Product Identity," one must therefore > conclude that it must be clear, at the time of entering into the license, > there must be some identifiable "list" that you agree to avoid when you > enter into the OGL, and this list must be fully disclosed at that time. > > Furthermore, contract law requires all parties to approve any changes to the > contract - which would include any changes/additions to that "list" - before > they become valid. So if we truly interpret Section 7 as referring to what > anyone anywhere declares as PI, that means that all "later additions" to the > "list" of what is PI must be approved by those who entered into the contract > before. For example, if I entered into the contract in 2001 by publishing
> under the OGL (which I did), and someone else decides to enter into the > contract in 2002 by publishing under the OGL (which they have), they have to > have my approval in order to declare ANYTHING as PI... otherwise the terms > of the contract have been materially altered without my explicit consent > (because I consented to the "list of PI" as it appeared in 2001, not as it > appeared in 2002). First, remember: I want your interpretation to be correct. Given that, please tell me how your logic applies to the next line in Section 7: "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." Unless "any" has a different meaning in front of "Product Identity" than it has in front of "Trademark or Registered Trademark", your very logic seems to make Trademark every bit as complicated as PI. One might hypothetically conclude that it must be clear, at the time of entering into the license, that there must be some identifiable "list" of Trademarks that you agree to avoid when you enter into the OGL, and this list must be fully disclosed at that time. And note that Section 7 specifically mentions Trademark as distinct from Registered Trademark. That seems to clearly indicate an intent to cover non-registered Trademarks. Pretty much by definition, there is no identifiable "list" of non-registered Trademarks. So from your logic, do you believe that the ONLY Trademarks and Registered Trademarks covered by Section 7 are those included within a work from which you derive, and which you list in Section 15? If so, that would lead to an interesting observation: "Dungeons and Dragons" is a trademark which, BY DESIGN, never appears in ANY OGC. So your PI logic, when applied to Trademarks, would seem to NOT protect the single Trademark which that clause was originally designed to protect. I don't think that can be right at all. (A court may have other ideas...) Now I can reconcile your logic with Wizards' clear intent in the license in two ways: 1. Unregistered Trademarks, to be protected by Section 7, must appear in the source work. Registered Trademarks, however, have an identifiable list (again, by definition), and thus are automatically protected by Section 7 whether they appear in a source work or not. 2. In some way I cannot comprehend, Trademarks are different from Product Identity -- yes, I know they're different, but read on -- in such a way that "You agree not to Use any Product Identity..." automatically means "from any source from which you derive" (or perhaps "from any source from which you directly derive"), but "You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark..." automatically means "no matter what it applies to". > But I promise > you, if anyone does try to pull Product Identity crap, they'd darn well > better hope they published within a month of the original SRD's release - or > I'll be filing breach of contract on them for changing the terms of the > contract I agreed to right after the SRD was released by publishing under > the OGL - and will happily rip their PI designations away - trust me, I'm > more than happy to play the "Mutually Assured Destruction" game with IP if > someone is going to try to jerk with the license on a dubious reading. Ummm... There's no reason to get violent. I want you to be right, remember. But I don't see consistency in "PI is only protected through derivation" vs. "Trademark is protected everywhere" when the language used for them is so similar. Again, if Trademark has special standing because it exists outside of the OGL, that's fine; but I'd like someone to explain the legal theory. Right now, your very reasonable theory for clearing up PI confusion seems to increase Trademark confusion. Martin L. Shoemaker [EMAIL PROTECTED] http://www.TabletUML.com -- The UML tool you don't have to learn! _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
