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<blockquote data-quote="pemerton" data-source="post: 6020618" data-attributes="member: 42582"><p>Just to be clear - you seem to be saying that if A produces some content, B includes that content in a publication under the OGL, and C then reproduces that content, then C is protected from any suit by A <em>even if B's use of the material was not licensed</em>.</p><p></p><p>I don't believe that this is so. B cannot bind A, nor waive A's rights to protect his/her content. And A is not him-/herself party to any agreement with C.</p><p></p><p>Here are the relevant sections of the licence:</p><p></p><p style="margin-left: 20px">5.Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License. </p> <p style="margin-left: 20px"></p> <p style="margin-left: 20px">6.Notice of License Copyright: You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder's name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute. </p> <p style="margin-left: 20px"></p> <p style="margin-left: 20px">13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.</p><p></p><p>Section 13 has no application in this context that I can see. All it does is preserve sublicensees from being affected by a termination higher up the chain. It doesn't say anything about them not being liable to correct their own breaches of which they become aware, and hence liable to termination in their own right if they fail to do so.</p><p></p><p>It seems that Paizo may have reproduced the text of the spell Polar Ray, and labelled that text as Open Game Content, although (i) it was not able to do so pursuant to Section 5 (not being the creator, nor having sufficient rights from any other source), and (ii) it did not comply with the rqeuirements of Section 6 (because it did not include the relevant copyright text from the 3.5 SRD). Paizo's use of the text is therefore not licensed under the OGL, and is therefore arguably a breach of WotC's copyright. (The text is short and fairly banal, so perhaps not - I am not enough of an IP lawyer to form a judgement about that.)</p><p></p><p>In any event, when the PF website then likewise reproduces the text of the spell Polar Ray, where does it get the permission to do so? Not from WotC - because it has not complied with the requirements of Section 6 and included the 3.5 SRD copyright information. Not from Paizo - because Paizo's use is unlicensed, Paizo cannot confer any permission pursuant to the OGL. So the PF website's use is likewise not licensed under the OGL, and is therefore arguably a breach of WotC's copyright.</p><p></p><p>It is true that Paizo has <em>labelled</em> the spell description as OGC somewhere in its PF book; in the Beta, this is found on page 2 of the PDF:</p><p></p><p style="margin-left: 20px"><strong>Product Identity</strong>: The following items are hereby identif ied as Product Identity . . . All trademarks, registered trademarks, proper names (characters, deities, artifacts, places, etc.), dialogue, plots, storylines, language, incidents, locations, characters, artwork, and trade dress.</p> <p style="margin-left: 20px"></p> <p style="margin-left: 20px"><strong>Open Content</strong>: Except for material designated as Product Identity (see above), the contents of this Paizo Publishing game product are Open Game Content . . .</p><p></p><p>Given that the text of the spell Polar Ray is none of those things designated as Product Identtity, it has clearly been labelled by Paizo as OGC. But they enjoy no permission to lable it in that way, because they do not satisfy the requirement of Section 5 in respect of it, and they have not complied with the requirements of Section 6 either, and therefore cannot claim to be licensed by WotC to label it OGC.</p><p></p><p>Hence, when the PF website reproduces the text of Polar Ray, the OGC delcaration by Paizo does not give them any legal authority to do so. Paizo cannot confer rights in respect of WotC's content that it does not itself enjoy.</p><p></p><p>I'm not adding any conditions. I'm just noting that WotC has not licensed Paizo's use of the spell text (because they have only licensed use in compliance with the OGL, which Paizo appears not have complied with, at least as far as the Beta is concerned), nor the website's use (for the same reason). And Paizo has no power to turn WotC's text into its own OGC outside the framework of the OGL (with which it has not complied).</p><p></p><p>So, absolutely, if you are using material that someone else has labelled OGC, the burden is on you to make sure that that labelling is correct, if you want to avoid being exposed to complaints from the person whose content it ultimately is.</p><p></p><p>EDIT:</p><p></p><p>For the website it is actually pretty straightforward. Within 30 days of learning about this issue, they simply need to add a reference to the 3.5 SRD into their Section 15 declaration. That would then bring them within the terms of the OGL in their relationship to WotC, hence removing any grounds for complaint that it might enjoy against them.</p><p></p><p>They would also be using material authored by Paizo (ie the changes to the spell text), but Paizo has authorised that under its own OGC declaration, and the website has listed the Pathfinder Rulebook in its Section 15 declaration, and so is licensed by Paizo under the OGL.</p><p></p><p>That wouldn't settle any issue between Paizo and WotC, but any such issue is not the website's problem provided that it is itself compliant.</p></blockquote><p></p>
[QUOTE="pemerton, post: 6020618, member: 42582"] Just to be clear - you seem to be saying that if A produces some content, B includes that content in a publication under the OGL, and C then reproduces that content, then C is protected from any suit by A [I]even if B's use of the material was not licensed[/I]. I don't believe that this is so. B cannot bind A, nor waive A's rights to protect his/her content. And A is not him-/herself party to any agreement with C. Here are the relevant sections of the licence: [indent]5.Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License. 6.Notice of License Copyright: You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder's name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute. 13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.[/indent] Section 13 has no application in this context that I can see. All it does is preserve sublicensees from being affected by a termination higher up the chain. It doesn't say anything about them not being liable to correct their own breaches of which they become aware, and hence liable to termination in their own right if they fail to do so. It seems that Paizo may have reproduced the text of the spell Polar Ray, and labelled that text as Open Game Content, although (i) it was not able to do so pursuant to Section 5 (not being the creator, nor having sufficient rights from any other source), and (ii) it did not comply with the rqeuirements of Section 6 (because it did not include the relevant copyright text from the 3.5 SRD). Paizo's use of the text is therefore not licensed under the OGL, and is therefore arguably a breach of WotC's copyright. (The text is short and fairly banal, so perhaps not - I am not enough of an IP lawyer to form a judgement about that.) In any event, when the PF website then likewise reproduces the text of the spell Polar Ray, where does it get the permission to do so? Not from WotC - because it has not complied with the requirements of Section 6 and included the 3.5 SRD copyright information. Not from Paizo - because Paizo's use is unlicensed, Paizo cannot confer any permission pursuant to the OGL. So the PF website's use is likewise not licensed under the OGL, and is therefore arguably a breach of WotC's copyright. It is true that Paizo has [I]labelled[/I] the spell description as OGC somewhere in its PF book; in the Beta, this is found on page 2 of the PDF: [indent][B]Product Identity[/B]: The following items are hereby identif ied as Product Identity . . . All trademarks, registered trademarks, proper names (characters, deities, artifacts, places, etc.), dialogue, plots, storylines, language, incidents, locations, characters, artwork, and trade dress. [B]Open Content[/B]: Except for material designated as Product Identity (see above), the contents of this Paizo Publishing game product are Open Game Content . . .[/indent] Given that the text of the spell Polar Ray is none of those things designated as Product Identtity, it has clearly been labelled by Paizo as OGC. But they enjoy no permission to lable it in that way, because they do not satisfy the requirement of Section 5 in respect of it, and they have not complied with the requirements of Section 6 either, and therefore cannot claim to be licensed by WotC to label it OGC. Hence, when the PF website reproduces the text of Polar Ray, the OGC delcaration by Paizo does not give them any legal authority to do so. Paizo cannot confer rights in respect of WotC's content that it does not itself enjoy. I'm not adding any conditions. I'm just noting that WotC has not licensed Paizo's use of the spell text (because they have only licensed use in compliance with the OGL, which Paizo appears not have complied with, at least as far as the Beta is concerned), nor the website's use (for the same reason). And Paizo has no power to turn WotC's text into its own OGC outside the framework of the OGL (with which it has not complied). So, absolutely, if you are using material that someone else has labelled OGC, the burden is on you to make sure that that labelling is correct, if you want to avoid being exposed to complaints from the person whose content it ultimately is. EDIT: For the website it is actually pretty straightforward. Within 30 days of learning about this issue, they simply need to add a reference to the 3.5 SRD into their Section 15 declaration. That would then bring them within the terms of the OGL in their relationship to WotC, hence removing any grounds for complaint that it might enjoy against them. They would also be using material authored by Paizo (ie the changes to the spell text), but Paizo has authorised that under its own OGC declaration, and the website has listed the Pathfinder Rulebook in its Section 15 declaration, and so is licensed by Paizo under the OGL. That wouldn't settle any issue between Paizo and WotC, but any such issue is not the website's problem provided that it is itself compliant. [/QUOTE]
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