<<I definitely think you and I see eye to eye on the "two possible
interpretations..." the "white out" versus the "verboten list," I mean. We
may not agree about which one is the *correct* interpretation,>>
I don't think I've firmly expressed a belief as to which is the one true answer. I just think that the answer is less than obvious.
If I have a preference to read the license as a prohibited list rather than a "white out" list it is for one reason, which doesn't involve personal preference. As I'll explain below, the "prohibited list" method assumes protections beyond copyright and trademark law, and some of the PI items look like you have to go beyond those bodies of law to include them. As a result, unless I want to read the contract as being null in those parts, it requires me to consider interpretations of the contract which would give them some force.
Since a pose can't be copyrighted or trademarked, if it is to receive any protections at all as PI then it must be because the license intends to extend protection to that item via something other than copyright and trademark law. This means that although poses cannot be traditionally owned under copyright law or trademark law (i.e., you can't win a of claim copyright infringement or trademark infringement on a theme, can you?) the license intends to protect them somehow.
Themes can't be owned under the law, but since the license claims that they can be, I'm hesitant to gravitate to any one solution where the questions of ownership are not answered for all the categories of possible PI.
So, I remain perplexed, and not firmly decided.
<< but the more
I watch, the more I become convinced it must be the "white out"
interpretation... because the "white out" interpretation leads to few if any
contradictions within the terms of the license itself. >>
I may or may not agree here. I can't decide. I think both methods require us to dig around outside the license. Given that PI has to be "owned" before it can be declared, and given that some of those things look like things over which ownership can't normally be established, I feel both require info that is missing from the license.
However, if we make an assumption that, using the "white out" method, PI is not actually a protected status, but simply something that marks sections of a work as "unlicensed", then that reading becomes fairly simple. The question of ownership still stands (to determine if the PI claims are valid), but their validity is rather moot at some level if PI simply means in some cases , but not all cases, "unlicensed" rather than "protected". Why? Because if it means "unlicensed" then it offers no protections other than copyright and trademark law, and you have to own a copyright or trademark to protect it, so then things would resolve.
The implications of sourcing in external things to replace PI is not simple.
Why? Because specific combinations of uncopyrightable materials may be copyrightable. That is a really vague and uncertain area of the law. If you license me 99% of your work, and the remaining 1% of your work is uncopyrightable but unlicensed, if I recreate your work by filling in the nominally uncopyrightable blanks with the same words am I engaging in copyright violation?
Maybe. That specific selection of uncopyrightable materials may be copyrightable. The fact that 99% of the text is already licensed to me weakens the claim a lot, but a rather aggressive judge might still stick it to me in court.
<<The "verboten list"
requires stepping outside of the license to ask, "how is the list derived?
>>
I don't think it really does. I think it is simply a prohibited list. Who cares how the list is derived? The prohibited list version assumes that I give you my OGC in return for you not using it in a book containing Thor or Merlin.
<<From words within the last product in the chain? All products in the chain? >>
I think that question still stands open, sir. Why? Because it's unclear whether you are simply interacting only with one sublicensor or with all the people in your section 15 via that sublicensor (acting as a proxy).
I think that question stands in either case. Although, I agree, that if the "white out" method is used it seems like a better fit with the notion that you are licensing the OGL'd work just from the last guy and are merely listing the other items as a matter of credit.
<<
How does one 'own' PI? >>
That question is there no matter what. You must "own" PI to declare it as PI to begin with. Since some of the items on the PI list look about impossible to "own" the problem with the "white out" reading is that it really fits with the notion that the marked items are unlicensed but are owned under normal trademark or copyright law. Some of those items on the list don't look like they belong to those categories of law.
<<
People are looking for PI to become stronger than Trademarks, Copyright Law,
or anything else. >>
I don't think that this is merely happenstance. The PI list looks, at least to a layman like me, like it contains items that seem to be protectable, but which aren't offered protections under trademark or copyright law.
Were about a half a dozen items not on the PI list things would be MUCH clearer.
I found your arguments to be clear and persuasive, on the whole. I appreciate that you are grappling with the issue as something that is gray, even if your position is being drawn toward one spectrum or the other. I think that the license is less than clear, and I kinda balk at claims that it is crystal clear. I think you've suggested sufficiently that the license has a couple of possible interpretations that it adds credibility to your own analysis.
Thanks for the insights. They were appreciated.
Lee
