Kal,
I'm combining the last two messages for the sake of brevity.
> First, let's be clear that your open content is something unrelated
> to the frost monster names. You'll be asking them to cure a breach
> that is unrelated to your open content. I do not argue that it is
> within your rights under the OGL to do so.
I understood that to be the case, but it doesn't change anything. A breach
is a breach and so long as I am party to the license I have the authority to
deal with it. The trouble with real copyright is that it is very, very hard
to distinguish between who owns what part of a work when that work is
derivative. The OGL doesn't try, it just makes every copyright holder party
to the license, so in effect we all hold the work jointly. I agree it is a
bit odd for an otherwise unrelated party to ask that a breach be cured that
is largely unrelated to the material they contributed, but it would be
legitimate under the OGL.
> That is what I said. You cannot use the stuff derived from your
> open work. I added you can get permission to use the frost monster
> name and cite their work. You are saying you'll force them to open
> up the frost monster name instead. That's within your rights.
I think we're messing with semantics here. When you use the phrase 'get
permission' I assume you mean you'll ask them for a separate license. I
wouldn't do that because I would be asking for permission to use a work that
was in breach, and then we'd both be in breach. When you use the phrase
'force them to open' the material, I am assuming that you mean you will just
use it and mark it as OGC (as you have suggested in the past). That is
illegal. What I would do is notify them of the breach and let them cure it
in one of two ways. The first would 'force them to open' the material by
reclassifying it as OGC. The second would be to retract the work in its
entirety, in which case I still would not have access to their work. That's
why the idea of using their PI as OGC is illegal, because once the breach is
cured you might not have any right to use it.
> Public domain names are very different from OGC or PI. Anyone can
> use public domain names in any context, regardless of the OGL.
No, this is simply not true. If I draft a license that lists 20 public
domain names and in that license it says "in exchange for certain valuable
considerations, I agree not to use these 20 names", and you agree to that
license, then you are bound to use them within the context of that license.
Outside of the context of that license you would not be bound by its terms,
and could use those names freely. It is a contract, not a copyright. The
OGL is EXACTLY the same.
This is extremely important to remember here is that PI is not a copyright,
it is a license. I think it goes to the heart of your argument. PI is an
agreement treat certain things a certain way in exchange for certain other
considerations (using the OGC).
> I disagree that a party who uses a public domain name as OGC is in
> breach.
If that name was previously used as PI within the derivation chain of that
OGC, then they are. Outside of that derivation chain they are not.
> Technically, I don't even think that someone who uses a public domain
> name as PI is in breach.
At least we've found one thing to agree on :-)
> Again, they are free to exert copyright on
> their works containing public domain content as they see fit. But if
> I am convinced enough that a certain name is public domain, I will
> use it as such.
You may certainly do so outside of the OGL, but not within it. By agreeing
to the terms of the OGL you also agree to respect the elements that others
mark as PI, regardless of the source of that material. If you disagree with
how they have applied the terms of the license you may notify them of a
breach (if you have standing to do so). If you do not have standing you can
still ASK them to fix it, but I don't think that counts as notification
under the termination clause.
> They are free to copyright their expression of the really cool thing
> they did and license that content under the OGL as they see fit. But
> they cannot prevent someone from using a public domain name to refer
> to a piece of open game content.
As I said, PI isn't a copyright. The OGL grants them the right to prevent
other people from creating derivative works from the things they mark as PI,
even if that name would otherwise be considered public domain.
-Brad
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