At 12:19 AM 7/2/2003 -0400, Rogers Cadenhead wrote:On Tue, 01 Jul 2003 23:13:51 -0400, Joe Mucchiello wrote:Why would PI be limited to what copyright allows? You can agree to anything in a contract. Nowhere in the OGL does it state the PI follows the rules of copyright law. Any court that even considered PI similar to copyright would be acting outside the contract.
I think the principle is that you must be the "owner of the Product Identity" to declare it (section 1e). How do you establish ownership of intellectual property other than by means of copyright and trademark?
Huh?
First, since you can PI things that can be neither copyrighted nor trademarked, why would you use either of those things to determine who the owner of PI is?
Well, the license doesn't define "owned" or "owner", so clearly we must use general law to determine those concepts--and, according to general law, there are elements of IP that can not be owned by anyone, while patent/trademark/copyright govern those that can be owned.
Second, PI is NOT NOT NOT Intellectual Property. It is a term in a contract. Just because it is similar to other IP concepts is completely irrelevant. Since the contract does not state the PI works like copyright or trademarks, there is absolutely no reason to assume it does.
OK, it's not IP. It's clearly not material property. What is it? That is, is the *only* basis for authority over it this contract?
I think part of the difference of opinion here comes from the angle being taken. If you start from the premise that the WotC OGL is valid, you pretty much have to come to the conclusion that PI gains its strength from something other than IP laws, because much of that material has no protection under IP laws. If, OTOH, you start from the premise that the WotC OGL gains its strength from IP laws, i think you'll come to the conclusion that some of its definitions/claims would be held unenforceable if they ever made it to court. I don't know enough about contract law to be certain, but i'm skeptical that a contract stands on its own--it seems "obvious" to me that it must rest on other laws. A contract involving property is only legally binding if the involved people have legal power over the property. I would think the same is true WRT intellectual property. If the fundamental basis that gives someone the power to use a contract involving IP isn't IP law, what is it?
That said, you might be right that PI is nothing more than a construct of this contract--but, even then, i'm not convinced that it can be constructed out of thin air.
Fourth (and this one is a lot more shaky than the above), since section 1f defines "trademark" even references to trademarks within the license MAY NOT refer to actual trademark law: "1 (f) "Trademark" means the logos, names, mark, sign, motto, designs that are used by a Contributor to identify itself or its products or the associated products contributed to the Open Game License by the Contributor." Why define the term when it has a perfectly good legal meaning already unless you did not want to use the normal legal meaning?
In yet another misguided attempt to make the license "user friendly" by avoiding legalese? [any license that requires a FAQ to get the full meaning of makes me skeptical.]
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