----- Original Message -----
From: "Brad Thompson" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Saturday, June 24, 2000 10:39 AM
Subject: RE: RE: [Open_Gaming] The Spirit and the Letter
> > kevin kenan
> >
> > I would be much happier if the license simply allowed a person to
> > produce & sell derivative works based on Open rules. I envision
> > that an Open rule system would have a core document that detailed
> > the rules (I imagine the D20SRD will be an example of this). The
> > license would allow me to create a derivative work based on that
> > core document without requiring my derivative work to be Open in any
way.
>
> Hey, who wouldn't? I'd like to get free milk from a cow, too, but it
isn't
> going to happen anytime soon. What you're talking about is taking someone
> else's work and using it without compensating them in any way. Why on
earth
> would anyone want you to do that?
The OGL draft as it is now allows me to use someone else's work without
compensating them in any way. I don't understand your objection. If the OGL
were changed the way I suggested above, I would still want the requirement
that a copyright notice be included in the derivative work that states what
Open material was used as the source and who owns the copyright in that
material.
> > The way I (a non-lawyer) read the copyright laws, the original
> > owner retains the rights to the derivative parts of a derivative
> > work while the author of the new, original parts owns the rights
> > to his work.
>
> This is a gray area in copyright law, and even lawyers don't agree on what
> it means. In most cases where the court rules that the work is
derivative,
> it means that the work as a whole does not qualify for copyright
protection.
> The courts don't usually rule on which portions are derivative and which
> portions are not.
What are you using as references? Here is my reasoning:
The US Copyright Office at
http://www.loc.gov/copyright/circs/circ14.pdf states:
"The copyright in a derivative work covers only the additions,
changes, or other new material appearing for the first
time in the work. It does not extend to any preexisting
material and does not imply a copyright in that material."
The actual law is at:
http://www.loc.gov/copyright/title17/chapter01.pdf
See sections 102 and 103.
As you can see from section 103(a), if you create a derivative work without
permission from the copyright holder, then the law does not protect your new
work. I think this is the grey area you are referring to. So if the OGL
granted you permission to create a derivative work, then your new material
would be protected by copyright.
> > The only thing lost is the assurance that new, innovative rules
> > would also become Open. Rules, though, can not be copyrighted.
>
> Ah, but if you take someone else's book of non-copyrightable rules and
> rewrite them, then you have created a derivative work, because you based
> your version of the rules on their book. Rules cannot be copyrighted, but
> the source is still protected. If you make a work that is substantially
> similar to a copyrighted work even if that similarity is only the rules,
AND
> you had an opportunity to make use of the copyrighted work when creating
> your own, then the burden of proof falls to you to prove that your work is
> independent and not derivative.
See http://www.loc.gov/copyright/fls/fl108.pdf for reference. It states:
"Once a game has been made public, nothing in the copyright law
prevents others from developing another game based on similar principles."
We see examples of this all the time in today's RPG industry. Many game
systems share similar rules yet aren't considered derivative works. I think
that Open systems should be able to create rules similar to those which
exist in other games to the same extent that similar rules are implemented
in different systems today. No more, no less. If someone creates new rules
for an Open system, then the Open system should be able to create similar
rules to the same extent as this sort of thing is practiced in the industry
today.
-kenan
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