> Taken together they are a bit confusing, aren't they? Materials aren't
> contributed to the License they are released as Open Game Content under
> license.
That's not confusing - that's how a copyright license operates. There's no
'contributed' concept - the OGL is a license, not a legal entity. You hold
the copyright to your original works, even if you've licensed their use
under the terms of the OGL. You have to hold the copyright - otherwise, you
can't sue if someone misuses your work.
> And what exactly are "the associated products"? Shouldn't the word
> "the" be dropped there?
It's a term of art, apparently, and the extra "the" has no significance.
> Of course this means that the definition still doesn't include trademarks
> that might have nothing to do with material contributed or self
> identification.
Yes, that's correct. Trademarks outside the scope of materials licensed
using the OGL are not relevent to the OGL.
If you write a sourcebook for modern firearms, and you want to refer to
"Colt" and "Heckler & Koch" firearms, you'll be sued under trademark law,
not under breach of contract. (Unless, in some weird alternate Earth, Colt
or H&K actually write up stats for their guns and release them as Open Game
Content, and you incorproate that material into your work...)
Colt and/or H&K doesn't have standing to sue for breach; they're not
copyright holders who are having their copyright infringed by the misuse of
their trademarks.
Let's say you want to write a d20 conversion of Vampire. You use the
Vampire trademarks, you indicate compatibility, and you use the White Wolf
trademarks. You also include rules licensed from some 3rd party that was
original in source - not derived from the System Reference Document or
anything published by White Wolf. Let's call this 3rd party "Ryangames,
Inc.". Heck, just to be complete, you include rules for character creation
and for applying the effects of experience to characters, and you use the
d20 System trademark anyway. And, in the back of the book, you run a review
of a Palladium RPG book that includes no content that could not be construed
as a "fair use" of Palladium's copyrights and correctly notes the ownership
of all trademarks and indicates that you are using them without permission,
and that Palladium, and not you, is the trademark holder. None of the other
content in your product is derived from Open Game Content licensed from
Palladium.
You could potentially be sued by the following people, on the following
grounds:
1) Wizards of the Coast, for breach of contract, copyright infringement,
and trademark infringement. Breach, because you're using WotC derived
content (the d20 system Open Game Content) in breach of the license to do so
(the OGL). Copyright infringement, because you don't have a valid license
to use the d20 system copyrights (because you're in breach of the OGL), and
trademark infringement because you don't have a valid license to use WotC's
trademarks (because you've violated the d20 System Trademark license).
2) White Wolf, for copyright infringement and trademark infringement, both
because you've >never< had a valid license to use their content.
Ryangames, Inc. can not sue you, unless you are using Ryangames Product
Identity without separate permission. I could attempt to sue you, claiming
that by breaching your license with WotC, you've lost your right to use my
content too; however, I suspect a court would find that I do not have
standing to sue unless you've somehow breached the specific terms of the
license between you and I. In a sense, each new "root" of of licensed
material creates another chain of licenses. Your license from WotC, even
though it has the exact same terms as your license from me, is a separate
license; your breach of your license with WotC does not ipso facto place you
in breach of your license from me. On the other hand, a court might
construct Section 7 to cover all prior licensors who are using the same
licensing terms, in which case your breach of your WotC license would also
breach your Ryangames license. I think that scenario is unlikely, however.
In any event, I would be hard-pressed to show damages to the Ryangames
copyrights due to your misuse of WotC copyrights and/or trademarks, and even
if a court found that there was one, unified chain of licenses, I still
wouldn't have any reason to litigate. Generally speaking, a suit will be
dismissed if there is no damage to the plaintif, even if an agreement can be
construed to be in breach between the parties. This is essentially a legal
way of saying "no harm, no foul".
You could not be sued by Palladium for breaching the OGL, because Palladium
doesn't have standing to bring suit over the terms of the OGL. As far as
the OGL is concerned, Palladium is invisible, because they are not a prior
licensor of Open Game Content. (Now, Palladium may choose to litigate under
a liberal theory of copyright and/or trademark infringement, and you might
lose anyway depending on the court in question, but that is beyond the scope
of the interaction with the OGL.)
> (b)"Derivative Material" means copyrighted material including derivative
> works and translations (including into other computer languages),
potation,
> modification, correction, addition, extension, upgrade, improvement,
> compilation, abridgment or other form in which an existing work may be
> recast, transformed or adapted;
> <and>
> (g) "Use", "Used" or "Using" means to use, Distribute, copy, edit, format,
> modify, translate and otherwise create Derivative Material of Open Game
> Content.
>
> Derivative Material as defined does not smoothly fit into the second
> definition, mainly because of the use of "derivative works" in the
definiton
> of Derivative Material. It is a bit circular.
Section (b) defines "Derivative Material". Section (g) uses that
definition. It's not circular.
"Derivative Material" is a term defined within the OGL itself. "Derivative
work" is a term defined in Title 17, the copyright statute. "Derivative
Material" and "Derivative Work" are not necessarily the same thing (though
they are made so by the definition in (b).)
> Also if you insert this
> definition where it is used in Section 7 you will find that (g) throws it
all
> off because how can it (as defined) apply to the "Use" of Product
Identity.
There is no mention of "Derivative Material" in Section 7.
> In fact the d20 licenses have terms which are defined as PI though
> they are not included in OGC content. This means that there may be tons
of
> PI that a User of the OGL may not even be aware of. this is a major
> loophole/shortcoming.
If you do not identify something as Product Identity, and that something is
otherwise identified as Open Game Content, then that something is Open Game
Content and not Product Identity.
If you do not identify something as Open Game Content, then it is not
covered by the "Use" provisions of the OGL, and you can't safely use that
something without a separate license from the original source.
The Product Identity clause is a way to embed material in content that
>would otherwise be< Open Game Content, but exclude it from the definition
of Open Game Content anyway.
Ryan
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