> kevin kenan
>
> The intent of PI (as I understand it) is to allow "doubly-marked"
> items. By declaring an item as PI, you can freely mix it in with
> Open Game Content yet rest assured that the item will remain closed.
There is no provision in the license for PI or OGC to take precedence over
the other, therefore there is no way that "doubly-marked" items can be
considered to be clearly marked as either OGC or PI, as demanded by the
license.
If you believe such a provision exists, then please quote your source and I
will be pleased to discuss it.
> If an item is a game rule, I can't mark it as PI, otherwise I think it
> can be marked as PI. I think we're describing basically the same sets
> of information.
If it isn't in 1e, then it can't be PI. That's why 1e is such an exhaustive
list. It covers just about everything, but if you find something that isn't
covered that you want to keep private you'd be wise not to include it in
your OGL work.
> > Items which ARE similar to those described in 1e MAY be OGC if
> > clearly marked, or PI if clearly marked, but the license no longer
> > has a 'default state' for such material.
>
> Sure it does. It doesn't matter whether it fits 1e or not. Something
> is OGC *only* if it is marked as OGC. If you have a rule (something
> that fits 1d) that is not marked as OGC then you are in violation of
> the license and you must mark that item as OGC or lose the right to
> use the license.
I disagree, but the point is moot. We agree that game mechanics cannot be
PI, so an author will be in violation if they attempt to make them PI, which
means that so long as they intended it to be OGC they are going to be fine.
Marking them explicitly will do no harm, and is certainly clearer to the
layman.
> > All items similar to those described in the first part of 1(d) ARE
> > OGC whether specifically marked or not,
>
> We disagree on this point, but I believe we agree on the general
> point: all material which fits 1d must be marked as OGC.
To resolve this issue you must break down the structure of 1(d). The
license describes three ways to define OGC:
1(d) "Open Game Content" means-
the game mechanic and includes the methods, procedures, processes and
routines to the extent such content does not embody the Product Identity and
is an enhancement over the prior art
-AND-
any additional content clearly identified as Open Game Content by the
Contributor
-AND-
means any work covered by this License, including translations and
derivative works under copyright law, but specifically excludes Product
Identity
All of these things are OGC, but only 'additional content' is required to be
clearly identified as Open Game Content. The last phrase is somewhat
confusing because it implies that anything not marked as PI is OGC. This is
not in fact the case, because the prior phrase requires anything that isn't
game mechanics must be marked in order to be OGC, however it reinforces my
assertion that game mechanics are OGC even if they aren't marked.
> At that point, though, what material can the open
> gaming community use from that work?
Nothing. Without the OGL, the work is automatically covered by copyright
law. The work is probably at that point an unauthorized derivative and
therefore its ownership is debatable. Given that the ownership is
debatable, no one can have the Authority to Contribute required by the OGL
to make any of the material OGC.
If the work isn't an unauthorized derivative then it is simply a copyrighted
work and only the author would have the authority to license it as OGC.
> My answer is that we can use any of the material that was correctly
> marked as OGC but we can't use anything else even if it should have
> been marked as OGC.
This is simply wishful thinking. Once the license has been Terminated you
cannot create sublicenses from it, although all sublicenses granted before
Termination will remain valid (and perhaps subject to Termination if the
breach is present in those documents as well). While this might be in the
spirit of open gaming, it is actually an unauthorized derivative under
copyright law.
> Consider the case of designers who have
> intellectual property that they honestly believe is not covered by 1d,
> but then after they release the material they realize that it is
> covered. Have they just lost their intellectual property? I don't
> think so.
The answer is more complicated than that.
If the work violates the OGL and is terminated before any sublicenses are
created, then the material was never OGC and no control has been lost.
If the work violates the OGL but sublicenses are created from the material
prior to termination and those sublicensed works have not, for whatever
reason, also violated the OGL, then that material is now OGC and available
for anyone to use.
> They can remove all OGC from their game, invent new
> mechanics and release a game which has zero OGC and still uses all of
> the material that wasn't marked as OGC in the original version.
They can actually do this anyway. "The owner of any Product Identity used in
Open Game Content shall retain all rights, title and interest in and to that
Product Identity". That's how WotC retains its rights to the d20 SRD
material even after it has been released. Essentially you are making a copy
available as OGC, but you get to do anything you want with the original.
> > and any other content MAY be OGC if it is marked as OGC and not
> > specifically marked as PI. There is no provision for double-marked
> > material.
>
> If WotC has marked something as PI, you may not use it no matter where
> it appears in WotC's material, even if it appears in a section marked
> as OGC.
True, but not for the reasons you state. Because the section where it was
also marked as OGC creates a breach of the license which would be carried
forward in any sublicense, and thus the material was never really OGC.
> > All material listed in 1e must be clearly marked as either PI or
> > OGC. Material described in 1d is OGC whether marked or not, but may
> > not be PI. Failure to do either of these is a breach.
>
> Not that I can see.
Then you ought to take this matter up with your attorney before you release
anything.
-Brad
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