<<>> copy of your work in my home... or, in the case of a PDF product, if you
>> have a receipt of sale traceable to one of my credit cards or e-mail
>> addresses. Absent my having a copy of your book in my home, I CAN'T
>> infringe.
I cannot see that this can be the case in copyright and trademark disputes. This would make it impossible to ever convict anyone.
>>
I am not a copyright lawyer, but I think, if memory serves, substantial similarity gives rise to an inference of infringement. This is countered by evidence, gathered during discovery, that the production was independent and that the defending party had no access to the supposed "original". The claim is rebuttable based on proof that the defending party did have ready access to said materials, but again that should also be in testimony and discovered evidence.
Whether the defending party had access to the materials in question is a matter of triable fact.
I don't think you need to prove that it was humanly impossible for you ever to have had contact with the original material if you can prove, by some means that your work was independently created (you wrote it on your lunch breaks without the other text anywhere in your possession). Fundamentally, your copyright extends to the format, general structure, content selection, and verbatim _expression_ of your work. Your concepts alone are unprotected by copyright law.
Another work with similar concepts but markedly different structure and verbatim content is likely not going to be considered a derivative work under copyright law in many cases. It's the format, structure, content selection choices, and verbatim _expression_ which derivative works statutes protect.
<<
I need to know that I have the legal weapons available to me to prevent someone from copying my PI on purpose! >>
Sure, it's called trademark and copyright law. The categories of PI that most obviously aren't protected under those standards are frequently:
a) names of spells, etc. (although collections of uncopyrightable spell names would be copyrightable even if the individual names aren't)
b) concepts (normally protected only via patent, although you can claim copyright on the verbatim _expression_ of the concepts provided the concepts and the language aren't so merged that they are practically the same thing)
c) prohibition of declaring compatibility with a trademark (which is normally possible, with appropriate usage and
disclaimers, without the OGL and without prior permission)
Those are the big grants of PI protection that are new that pretty much only the OGL protects. All the other stuff already has protections under federal law.
Lee
