I'm going to say one last bit about this attacking business and then
discuss the "compatible with..." issue. To save space, I've snipped the
entirety of Faust's message, but if anyone would like to see it after
reading this, I'll save a copy of it. As far as I can tell, I have yet to
"attack" Faust, nor have I seen any evidence from him that I have attacked
him instead of his arguments or methods of argumentation. As far as tone
of my letters go - tone is a primarily oral aspect of speech and as such
does not transfer well to the purely written word. If you are reading
this as an attacking Faust, you might want to try NOT reading an attacking
tone into the speech. I often find the tone of your messages to be very
condescending, which I find to be various humorous. In various messages,
Faust has questioned my right to ask what people intend to use other's
trademarks for, attacked my morality after distorting my statements, and
told me to look up words I clearly used correctly. I consider those
closer to attacks than anything I've done.
And now, any time I criticize Faust's logic or his lack of understanding
about the law, he sends out a message saying I should stop attacking
him. And Faust is blaming me for continually raising the issue of
attacking people. He also tells me that if I have a comment that adds or
clarifies whatever he says, he'd love to hear it. So what exactly am I
suppose to do if you post messages that need to be refuted? Anyone who
wants to play Devil's Advocate needs to be able to deal with and address
counter arguments, not simply expect to have what they say accepted as if
it were accurate.
**********
As for the issue the issue of trademark law, Faust has yet to point to a
single specific statement I have made that was wrong. In fact in a number
of posts where Faust has responded to either Clark or me, he has actually
agreed with our statement when he's said he doesn't agree (particularly
over the issue of whether or not a suit can be brought). I haven't
actually made any claims as to "what a company was likely to get sued
for", rather I have attempted to explain what the law does and does not
prohibit/permit. Trademark law does not grant permission to use a
trademark to anyone other than the trademark holder; nor does it issue a
blanket prohibition of the use of others trademarks. Many of Faust's
statements have at least implied that current trademark law provides
explicit protection for comparative advertising purposes -- it doesn't.
Trademark law does make it highly unlikely that such uses will be deemed
impermissible, but that is not the same thing.
With regard to the matter of "compatible with...", have any of your legal
associates determined what that term means? Especially as referring to
the industry of role-playing games? The term is not a term of art, and
therefore must be defined in any case that is going to consider the issue.
Such definition does not necessarily transfer from one industry to
another. The analogy to the computer industry is a rather poor one, as in
that industry, compatibility has a fairly solid definition and is easily
tested. If a product doesn't run under an operating system, the product
isn't compatible with that operating system. Can anyone provide a similar
compatibility test for rpgs? I have liberally borrowed from a wide
variety of gaming companies for any gaming I have done in the past - does
that mean that all those products were compatible with one another? That
is simply the point I have made with my criticism of your proposal that
the statement of "compatible with..." is unassailable under current
trademark law.
And I have never said that you suggested Microsoft's logos could be used
with impunity, much less said that repeatedly. My only statement was that
the recent discussion about Microsoft should have made clear that
"compatible with..." is not a clearly permissible use of a trademark.
Clearly no one can use Microsoft's specifically designed logo (a
trademark) in the way you mention as Microsoft enforces specific
requirements for the use of said logo. In your recent message you say
you are arguing for both "compatible with..." and "compatible
with...[trademark]". This certainly gives the impression that you mean
both "compatible with microsoft" and "compatible with [MSlogo]" are
permitted under current law; which isn't the case. You can't use the
small box logo to identify your product as microsoft compatible without
having agreed to their license. And yet, you state that this is exactly
what many people would want to do with a WotC trademark - and say that a
license isn't necessary to do so.
Luckily for you, WotC has essentially done exactly what Microsoft has
done; they've created a license for people who want to use a WotC
trademark to identify their products as being compatible with the d20
mechanic and product. It's the D20STL. Sure, some would prefer this
license involve a little logo that indicates D&D rather than D20, but
that's a decision for WotC to make. The proposed language concerning
trademark usation in the OGL is almost required for the D20STL to have any
value, as I have argued in numerous posts.
Again, the original proposal posted by Ryan clearly provides greater
protection for trademark holders (ALL trademark holders, not just WotC)
against their trademarks being used on/in OGL materials. I've never said
it didn't. What I have said is that it is not accurate to say that many
of the uses of trademarks that have been mentioned in response to Ryan's
message (from advertising to identifying items in the product) are clearly
permissible under the current law. And even if the current law would
permit them, the realities of the world mean that many uses could be
permitted through the use of the legal system and money. The fact that
the big bucks company would likely lose such suits is something I've
always admitted. But to the small publishers on this list, winning such a
law suit is probably irrelevant - they'd likely have gone under already.
I also don't view the need to use a trademark as so fundamental to good
advertising as to make the restriction unbearable or detrimental to the
OGL. Especially considering the fact that WotC has provided a means of
acquiring that advertising capability if any publisher desires it - the
D20STL. From everything I've read, OGL is *not* about being compatible
with D&D. In fact the idea is to be able to develop a wide variety of
gaming materials based around a basic platform to take advantage of
network effects. D&D is the first (and, yes, likely always the dominant)
game around which this network will develop. Yet many seem to be focused
solely on the idea of being able to somehow tie themselves directly with
D&D. WotC would prefer this not happen. I'm basically ambivalent about
the matter, but certainly understand WotC's position. And if the OGL can
only be successful if everyone is able to put "compatible with Dungeons &
Dragons" on their products, I think the whole point of Ryan's experiment
has been missed.
later,
alec
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