Alec A. Burkhardt wrote:
> Sorry but the fact that it's uncontested by all parties does almost
> nothing for determining if it is a legally sufficient means of clearly
> identifying the OGC. Lots of things can be done and go unquestioned; that
> says nothing about whether or not they comply with the legal requirements
> of the license. The whole line of this discussion is concerning the legal
> requirements of the license regarding clearly identifying OGC. I said I
> wouldn't want to be the lawyer arguing that an OGC appendix with the
> statement that "anywhere this same material appears in the main text, it
> is OGC" is sufficient to clearly identify the OGC in the main text, I
> didn't say it couldn't turn out that such a method is considered clearly
> identifying the OGC. Of course such a method would likely be very cost
> ineffective for printed media.
Don't forget (as I had, and many do) that the whole point of the OGL is
to stay out of court to begin with. Ideally, we'll be just like the
GPL, and *never* go into court.
(And all that means is that we conintually come to common agreements
about what the license means... which, I would wager my $.37 on, would
weigh heavily if and when it finally gets into court.)
> It's all good in terms of people being able to use the OGC, but that isn't
> the requirement in the license. The license requires that if you use OGC
> you must clearly indicate which portions of your work are OGC. So any time
> you use OGC and don't clearly indicate that that portion of the work is
> OGC you are violating the license.
The word "each part" doesn't show up at all. To quote:
"8. Identification: If you distribute Open Game Content You must clearly
indicate which portions of the work that you are distributing are Open
Game Content."
IANAL (are you?), but it seems like "everything that appears in appendix
A is OGC, both in the appendix and in the rest of the work" is a "clear
indication" to me.
> And remember that I originally was objecting to the idea of a simple
> appendix as the whole of OGC identification. After I pointed out that
> wasn't complying with the license people added the line about claiming
> that anywhere the material from the appendix appears in the main book it
> is OGC.
Not to be rude, but that seems like legal nitpicking. Any competent
lawyer can pick that up, or a simple edit can change that on a second
printing.
> The raw concept of just collecting the material in an appendix is
> not in compliance with the license. The addition of that single sentence
> means that it might be in compliance with the license. I just don't think
> it obviously passes the reasonable person test as to what clear
> identification means. That's one problem with the reasonable person test,
> no such person actually exists but courts have to try and figure out what
> such a person would think.
Exactly. But, in the odd instance that this ever gets to court, each
side will argue what they think a "reasonable person" would conclude if
presented with the work.
If someone was presented with a work that used the "Appendix strategy",
would a reasonable person conclude that the exact same text in the rest
of the work is OGC? I think that he would; if we add on a qualfing
statement somewhere in the legal text, I think that likihood rises to
"clear identification."
From where I sit, the barrier to the appendix strategy isn't the OGL;
it's cost. In an instance where it's the most economical way to
identify OGC, the OGL should allow it to be used.
DM
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