<<Actually Spike, I've been talking to Lee a lot on this while trying to work out *exactly*
what he is saying and I believe that Lee is saying that people are getting their
definitions of OGC and PI wrong and failing to live up to their obligations under the OGL.
>>
Sir, what part of me saying Spike was absolutely on target was unclear to you?
I fully believe that people would be substantially better off explicitly saying "X is the work covered by the license" if they want to create a 3rd type of content, to make sure that this is crystal clear. This is _not_ a requirement of the license, but it might help secure in the mind of a judge that it was your explicit intent to create a covered work which was not the same as the product as a whole. I have said judges probably would infer that the "covered work = OGC + PI", but that some might not, and so you might want to be more accurate.
I have primarily brought up the point to bring up the notion that the standard copyrighted material is not largely covered by the license (except for the marketing and "in conjunction with" clauses), and that it raises some odd situations with regards to PI.
<<Maybe I am misunderstanding Lee here,>>
You probably are.
<<
I get the
impression that he believes that you have to come up with a OGC/PI definition that
specifically excludes portions of your game product from the "covered work". >>
You don't _have_ to if you want your product to be 100% OGC + PI. If you want part of a product to be something other than OGC and PI then you _ought_to_ specify explicitly what is and is not the covered work and you should realize that the parts that aren't your covered work (OGC + PI) are potentially not subject to all the same rules that the covered work is. Why _ought_ you do something like this? So that if you get an odd judge unwilling to infer that OGC + PI = covered work, that you will have explicitly stated this unambiguously. Does the license require you explicitly to say what is and is not the 'covered work'? No. Should you do so? Yes. It takes almost no extra space to define it, and it may provide additional clarity to sub-licensees and to courts who may review your declaration.
<<If you do not
specifically mark content as Product Identity it becomes Open Game Content by default.
>>
Ugh. Dude. That _could_ potentially happen if a judge were to rule that:
"covered work" = "entire product containing any OGC"
and
"OGC" = "Covered work" - "Product identity"
The second is a licensing definition. The first would be the logical case except that a judge probably should infer your intent to create a covered work as the sum of OGC + PI. Absent other implications, a judge may reasonably infer that "covered work" = "entire product", but I'd argue that declarations of OGC and PI probably _should_ be sufficient for a reasonable judge to infer the scope of the "covered work". Not all judges are particularly reasonable in all cases.
<<However, I think that Lee believes that if you "Use" any OGC then your whole
"covered work" is a derivative work.>>
Even if you had just one logical work in a product, and if that work borrowed a huge chunk of OGC, rendering the work as a whole a derivative work, the question becomes: so what? The license doesn't say derivative works are OGC. It says derivative works MINUS PI are OGC. But so?! It says ALL works covered by the license are OGC except the parts that are PI. The derivative works argument is a red herring since derivative works are a logical sub-set of "ANY WORK", and since you could have a compilation with 2 derivative works, one covered by the OGL, and another dangling in the breeze outside of the scope of the OGL.
The covered work would be OGC except the parts that are PI. The work not covered could easily contain nominally-OGC elements outside the safe harbor of the OGL. You could then, for instance, have a chapter which is relying on the fact that some OGC isn't copyrightable, and so you could port mechanics into a section of a product that wasn't covered by the OGL, and then add some new stuff to it, and not have to declare anything in that section OGC or PI.
That's exactly what Green Ronin might have done with Mutants & Masterminds: CROOKS. There's an entire rules section that borrows rules from M&M and from the d20 SRD (from what people have told me, I don't own the product). Now, if they didn't declare that section PI (I don't know if they did), then they intended it to sit outside of the OGL altogether. They are relying on the lack of copyrightability of the mechanics plus solid relationships with WotC to be able to leverage those mechanics, while creating a section of their book which contains rules from the d20 SRD, but which had a big fat ZERO percent of it declared as OGC. Now if they declared that stuff 100% PI, then that's sort of odd, but if they merely failed to declare it as PI and intended to leave it dangling outside the OGL then this could happen.
"Should"/"ought to" and "must"/"shall" are different usages.
Should they declare the coverage scope of the OGL within a product? Sure. Did they have to? No. Is there some increased likelihood that some judges may be unwilling to infer that the product contains multiple works, some covered and some not covered? Perhaps. Would there be some greater specificity to say, "this work is a compilation containing 2+ sub-works, defined as follows, and sub-work X is the one covered by the OGL"? Sure. What it decrease the likelihood that somebody would equate the entire product with being a "covered work"? Probably. Would a judge necessarily refuse to infer that your covered work was something smaller than the entire product? Probably not. Could they? Maybe.
<< My belief is that if I Use one spell then my
sub-spell is the only derivative thing in my product.
>>
You are confusing derivative _material_ with a _derivative_work_. The definitions section of Title 17 notes that if you quote huge chunks of a play, etc. for the purposes of line-by-line criticism and commentary that you are creating a derivative work _even_if_ the new work, as a whole, is a work of original authorship.
Derivative works have parts which are wholly derivative, parts which are wholly non-derivative, and parts which are potentially jointly owned in some way.
Often licenses from big corporations require that you cede some copyrights to use their materials. Such requirements are not mandatory under the law. In cases where licenses allow for the creation of sub-works but do not specify anything about ownership, when there's a disagreement about ownership, a court may "filter" the work trying to filter out the derivative parts from the non-derivative parts to decide ownership.
When figuring damages, they may compute damages as if the whole product were a derivative work if parts were taken unlawfully (i.e., without a license at all). However, in both cases, if they determine ownership of parts, they'll filter non-derivative from derivative parts if the court follows the trends in jurisprudence in this area of law.
That the work has derivative and non-derivative parts seems to make the _work_ a derivative work. However, that does _NOT_ mean that it has no derivative parts, and it does _NOT_ mean that a licensee may not be able to 100% own some parts of the derivative work, parts which a licensor has no rights to overall if they were re-published separately from any licensed content.
Note that printing a spell in a work might not make your entire product a derivative work, unless the product is logically based upon that spell. It could be viewed as a compilation which has 100s of sub-works, and that spell may not "taint" any of the other spells.
If the spell were taken unlawfully, then for the purposes of computing damages (rather than for the purposes of determining actual ownership) a court might treat the entire product as a single tainted whole. For ownership, a court may properly identify ownership of one element in a compilation as separate from the ownership of the other elements.
<<I see the word "work" as being similar to the word "water" here. Water can be a gallon or
a drop and water plus water is still water. I think that the same is true of work.>>
Sure. And "derivative" can be viewed as "polluted" or "tainted". If you pour a cup of sewage into a vat of water, the water is tainted as a whole. Are there parts of the mixture which are actually pure, which contain no molecules of the pollutant? Sure. And insofar as the pollutant can be later filtered and separated from the water, the pure water can be extracted. Similarly, a derivative work may contain derivative and non-derivative parts, which, if they can be carefully and cleanly separated, may display some parts owned by the licensor and some parts owned by the licensee. If the filtering process leaves some parts hopelessly mixed, a judge may rule that those parts are co-owned by the licensor and the licensee OR he may rule that the hopelessly mixed parts are wholly owned by the licensor.
If the rest of a story, poem, etc. is based-on or logically borrows from a large chunk of borrowed, copyrightable text, then you are creating a derivative work, even if that borrowed stuff doesn't appear on every page.
<< I think that whenever
we talk about work we are using the word as our own subsection of a total product.>>
Actually, works can contain other works. "Work" is a term of art. It varies from industry to industry, and if there's any definition in this industry it is probably "commercial unit" or "that in which the copyright is vested". So, just because you write a sentence, it may not be copyrightable -- it may not be a work. However, a whole story might be copyrightable. Therein is vested the copyright under law. It is a work.
It can be "a subsection of a product" or it can be "a whole product".
A "covered work" would be a commercial unit unto itself OR that in which copyright could reasonably be said to be vested, and said materials must be "covered" by the OGL.
<<
However if Lee is correct (which he may well be because he
is better at the law than me) perhaps we need to come up with legal work arounds to avoid
our "entire work" being "contaminated" by the use of one OGC spell.
>>
Sure, it's called PI'ing the rest OR simply not putting some parts under the OGL.
Dude, this takes no fancy "work around".
This is not complicated. And the "derivative works" thing is a red herring. The fact that derivative works covered by the OGL minus the PI they contain are going to be OGC is already subsumed by the larger notion that ANY work covered by the license (derivative or not) is OGC except the parts that are PI.
Can you mark things in a derivative work as PI? Sure. You just have to establish ownership over them, and I've noted that the case law seems pretty willing to separate out materials owned by one party versus parts which are either uncopyrightable or are owned by someone else.
Can you just leave entire sections of a product hanging outside of the OGL? Almost undoubtedly, you are just outside of the safe harbor. So, if you have a license to print a character description, and you have a compilation,
<<If I am wrong on my opinion of what Lee *is* saying then I have just been chasing my own
tail for a couple of weeks, >>
You have been chasing your tail, in my opinion. Since you keep inferring things I'm not intending to imply.
<<but I do get the impression that he has brought the subject up
because he believes that most people are using the OGL in a way that is wrong on issues of
OGC definition.
>>
I brought up the issue because I wanted to point out that:
a) people seem to me to be wrong in believing that the covered work contains 3 types of content, when I think a _product_ may contain 3 types of content but that there should only be two types of content in the "covered work"
b) that the non-OGC, non-PI portions may not be governed by 95% of the OGL (except the restrictions on marketing and "in conjunction with" products)
<<Lee likes to look for holes in the OGL (so that they can be plugged up in the next version). If he is in fact not saying anything different from what Martin says then I don't see why Lee would have brought the subject up (unless he himself has misunderstood something).
>>
I am saying something fantastically different than Martin, but I believe that it has very narrow implications, and so, for practical purposes, it will frequently be indistinguishable from the other point of view.
Point "a" above is effectively a point of academic debate, which has more to do, in some sense, with a theoretical understanding than a practical implication in many instances for 99.9% of all pre-existing products.
Point "b" (flowing from point "a') is a solid point of departure from the "3 types of content in a covered work" point of view.
<<I'm fairly sure that Lee does understand what they are saying and has brought the issue up because he thinks they have missed something else.>>
I am -- that the OGL governs very little at all in those sections, and that can cause trademark licenses, etc. to function strangely if they are worded so as to have the same scope as the OGL-covered product they are attached to.
<<I personally think that Lee's position is incorrect because although there is a
requirement to clearly mark OGC there is no requirement to clearly mark PI>>
Check the definition at 1(e), last few words. If you don't mark it clearly it isn't PI. You don't _have_ to mark anything as PI, because you don't _have_ to have any PI at all.
<< or the extent
of the "covered work".>>
As noted above, I _never_ said you had to declare that scope. I simply feel it is foolhardy not to since it requires almost no additional text (sometimes just a sentence) and may help to keep some "creative" judge from misconstruing your intent.
You don't _have_ to tie your shoes when you walk out of the house. Should you? Probably, if you don't want to trip.
<<
If Lee is correct then we all need to be careful to not accidentally open up content by not crossing our "T"s and dotting our "I"s.>>
Ugh!! I have basically said this probably wouldn't happen about half a dozen times now in various posts. Could it? Maybe. Would it? Probably not.
Ryan (I think -- it was a long time ago) once argued with Alec over whether the entire product would be OGC if you slapped the OGL on it and declared no OGC or no PI.
I think (if memory serves), Ryan argued that you might get nailed by some creative judge has having declared your entire work as OGC, since "OGC" means "any work covered by this license except the parts that are PI", and you haven't declared any PI and you haven't been clear that you don't intend the entire product to be the "covered work". The point being, is that if there's ambiguity about what is and is not the covered work, then it may be assumed that "covered work" = "entire product". Where a judge can reasonably infer your intent, he probably will. Some judges are wacky and seem to try hard to misconstrue intent of legislation, regulations, contracts, etc. If you want extra protection from those folks, make your declarations and scope of coverage all the more explicit.
<<I would love for someone with a greater understanding of PI/OGC definitions and the law to
tackle Lee on this.>>
Is the goal clarity? Or to see me tackled?
Several people who "get" my point, have chimed in. One has even described my viewpoint as "more accurate". Why? Because, for almost everyone out there to date, the difference in viewpoint is entirely academic. It _could_ have substantial practical implications, but not the way most people handle things.
The loopholes I've raised are loopholes I haven't seen people regularly use.
The one logical implication of my theory just showed up (if people have described the situation correctly regarding that book) in M&M: CROOKS.
Another logical implication is that people can freely use some types of PI in the section not-covered by the OGL in a given product.
Again, this primarily could have impact on PI licenses making assumptions about the scope of covered works.
Lee
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