Hi, Brad and Roger, thanks for exploring this. I'm going
to combine and snip your messages too for brevity. If I've
missed something you wanted addressed, please send again.
I think clause 13 and 1d of the OGL supports my argument
but I could be reading them wrong. Details below.
Roger wrote,
>How often is a publisher only going to declare a name as product identity,
>though?
This is exactly what's happened and will happen again.
Roger wrote,
>I would expect the same to be true in OGL. If I publish a Freeport module
>and declare
>it 100 percent product identity, no one can make use of my copyrighted work
>simply
>by virtue of the fact that I'm in breach of the OGL.
Brad wrote,
>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.
Consider if someone created a product with the monster Aboleth as
product identity and added new different stats which are open content
then that product would be in breach of the OGL by marking a piece
of OGC (assuming the SRD releases Aboleth) as PI. Of course, one
can email and suggest they fix it. But in the end I believe I
can use Aboleth with the new stats. I would cite the SRD for
Aboleth and the new work for the new OGC stats. If I read clause
13 correctly, failure to correct the breach does not terminate my
sublicense to the new OGC stats. Nor does pulling the offending
product from the shelves terminate my perpetual license to the new
OGC stats.
Brad wrote,
>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.
Of course, if you write those 20 public domain names down and agree to
not use it then it is a valid contract. But the OGL is not the same.
If I read 1d of the OGL correctly, for PI to be excluded from OGC it
has to be an enhancement over the prior art. A public domain name is
certainly not an enhancement over the prior art. You are granted a
perpetual license (2) which survives termination of the OGL (13) and
satisfies the requirement for a license to use any PI (7).
Brad wrote,
>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).
Yes, this is extremely important. I could be misinterpreting 1d. At
one point, I did think I would have zero recourse except to whine if
someone started claiming PI on "Drow."
I think we agree that people marking PI on public domain names and
open game content should be stopped. Of course, there will be
reasonable dialog with the offenders. But in the end your recourse
is to have a lawsuit and open it up. I'm saying it is better to
use the OGC as it is supposed to be used.
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