In a message dated 7/1/03 9:21:38 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
<<While your reading seems reasonable, i disagree with this part of it: IMHO, since it can't be copyrighted, despite clause 1e of the WotC OGL, it can't be considered PI. >>
PI very clearly extends beyond merely copyrightable materials. Some trademarks, for example, cannot be readily copyrighted. "Microsoft", by itself, outside of a logo, is not capable of being copyrighted, but it can be trademarked. Can you explain your reasoning here?
doh! misspoke. What i should have said is that i don't believe PI can grant protections that standard IP laws (copyright, patent, *and* trademark) can't. Its intended purpose is to maintain those protections in the face of potentially OGCifying them.
I would say that while you normally cannot claim copyright over certain things, it is not an unreasonable thing in a contract to say, "I'll loosen up my copyright control if you refuse to use things I can't normally protect with copyright law" (concepts, themes, etc.).
I have two problems with that. First, in the abstract, i'm very uncomfortable with anything that extends control over IP, even in the context of a contract. I'm looking at this in a broader context, including things like the DMCA, the behavior of Disney and the RIAA, and so on, so while it might be fine on its own, it's *not* on its own--it's part of a larger seachange that i wish to fight.
Second, in this particular case, i don't believe that's what happened, at least not initially. Given my opinion of what may and may not be owned, i think that the original agreement (from WotC) boils down to "I'll loosen up my copyright control, if you agree to acknowledge my ownership of a bunch of stuff that is traditionally held to be non-ownable and promise not to use some things that are normally useable." The first part i like, the third part i'm mostly ambivalent about--the limitations on using trademarks galls me. But the middle part really hits one of my buttons.
However, the license also notes that the Contributors are "copyright and/or trademark holders".
I do NOT read "copyright holder" as saying "there is nothing in the work that is not copyrighted". I read it as saying that the work as a whole is copyrighted or trademarked. After all every written work contains something that is not copyrightable (even if it is a single word, picked off a page).
Can you not say, "I own this block of text, but I cede to you the authority to use it, if, and only if, you refuse to use the following concepts, names, etc. in your own publications involving my OGC? If you refuse to accept this extension of my normal protections on uncopyrightable materials, then I refuse to cede to you the copyrighted text."
I think that's fundamentally what the purpose of the OGL is -- to allow for sharing, but also to expand IP protections for things which IP law does not currently protect, in a quid pro quo exchange.
I think that's exactly my complaint: quid pro quo. To my sensibilities, that undermines the whole point of open-content development. This may be my idealism speaking, but i think that it's no longer sharing if there's an exchange--then it's just basic mercenary capitalism. And it's precisely this dual purpose to the WotC OGL that so galls me, aggravated by the non-up-front-ness of it: it doesn't say it's an "open game license and IP broadener"; it implies that everything involving the WotC OGL is more open than conventional IP, even in the face of blatant contradictions like the trademark restrictions. Add to this the fact that the sharer is already getting something: mindshare. So now it's "i'll let you use some of my copyrighted materials, which will benefit me by increasing my mindshare, but you'll have to give up access to a bunch of normally-reusable material." If WotC's initial premise is correct, the mere act of sharing is benefitting them far more than the reuser will ever be benefitted, so they don't "need" a broadening of IP, too.
I see no reason that the quid pro quo has to involve solely copyrightable materials... It clearly involves trademarks, etc.
One does wonder at how far PI can reach, if copyright is not a limiting factor in PI declarations... "Concepts", "formatting", and "language" are so broad that they can encompass an enormous range of things.
Things that i don't think anyone should be able to control, but the weight of the D20SRD makes it possible. It feels to me a bit like a mob protection racket, where you're forced to acknowledge the "need" for "insurance" by the threat of the insurer. It's a positive reinforcement, rather than negative, but it still bugs me.
--
woodelf <*>
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