Questions about the new SRD [summon Orcus!]

[dcollins]

It would probably have an intro stating "The following terms are part of the SRD but are designated Product Identity and are not released as Open Game Content." then listing the terms.

As has been mentioned before, you realize that none of the items asserted as PI show up anywhere in the SRD, right?

 

[Mark]

They could include a new file as part of the srd that is just a list of the terms clearly marked as PI and not OGC.

Isn't that, in essence, what they have done? They've included, in the legal rtf a list of (claimed) PI'd terms. Are the terms included in a proper fashion and do they justify the claim by their inclusion? I think so (though I am not a lawyer) and I also think there is general support for this idea in almost all products that have come to be dsitributed under the OGL.

By way of support, the OGL attached to anyone's work and included with an OGL'd work (whether the product includes/follows the d20 System License or not) is, itself, OGC. It's OGC by virtue of its inclusion in the SRD and gets used as OGC in every single product released under the OGL. It includes section 15 and has the following statements from elsewhere in the OGL which govern the use of it -

From the OGL[
10 Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute.

11. Use of Contributor Credits: You may not market or advertise the Open Game Content using the name of any Contributor unless You have written permission from the Contributor to do so.

This functions as as a failsafe (#11) for companies that do not PI their company name (or other information they may include in their section 15).

As an aside, and technically speaking, the OGL in a product that also uses the d20 System License which requires 5% of a product be OGC may include the sum of the OGL as part of the 5% under the current terms of the d20 System License Guide. If the product is less than 18,980 words long, the 949 words of the OGL itself satisfies the terms of the 5% simply by its inclusion. The ethical arguments aside, of course, I am not advocating this usage but it is an interesting loophole that I believe WotC should close in the furture in the d20 System License and Guide. I do, however, bring this up for good reason.

Back on track...

So, a company name which appears in a section 15 for a product is almost always PI'd is an example of a PI'd term which (except for in the license) does not usually appear elsewhere in a product where it would also require being PI'd in the firstplace except in the section 15 which has its own protection built in. When someone PI's their company name they almost always also PI their company logo. But does the company logo appear anywhere else in a work that would require that it be PI'd, except in 100% OGC works? Not except in rare instances since most products, in their OGC declaration, make sure to further point toward "text" as OGC (perhaps mainly in order to avoid other images, regardless of being a logo, from being mistaken for OGC).

So there are many products that support that idea that something which falls outside of OGC areas can be PI'd. Technically, does including a number of terms within the PI statement constitute proper use of the PI statement as a means to PI terms which only appear within the statement itself? I think so.

If nothing else inclusion of terms within a PI statement is a safeguard against accidental inclusion of terms elsewhere in OGC sections of a work which a company wishes to reserve as PI for all or other of their works. The PI statement becomes a circular inclusion of PI'd terms but I do not think that is disallowed under the terms of the license.

 

[Wulf Ratbane]

So there are many products that support that idea that something which falls outside of OGC areas can be PI'd.

But few other products (I'd guess: zero) where the ONLY instance of the PI'ed term is in the PI declaration itself. Remove the PI declaration, and there is no risk that those terms can be mistaken for OGC, because they no longer exist anywhere within the work.

Technically, does including a number of terms within the PI statement constitute proper use of the PI statement as a means to PI terms which only appear within the statement itself? I think so.

You think it's proper or you think it's permissable? Big difference.


Wulf

 

[Cergorach]

This is going nowhere, WotC admitted that it made a mistake, it's being corrected.

As far as using anything that's remotely questionable with the OGL or D20 liscence is still WotC's piece of the pie. If WotC's legal department throws a fit and says that company X uses product name Y and their not happy about it, your in trouble!

WotC has enough power to just about obliterate any other RPG company or group of RPG companies on this globe. Just pray your not in their way! It doesn't really matter whether your right or not, it's just about who's got the most money.

If you want to use something questionable either talk to WotC or take your chances (or do both for all i care), but please stop acting asif this is going to mean anything. Speculating about it was all fine and well, but now the same point just keeps getting tossed back and forth. This is not going to help anyone who just tuned in...

 

[Mark]

This is going nowhere, WotC admitted that it made a mistake, it's being corrected.

As far as using anything that's remotely questionable with the OGL or D20 liscence is still WotC's piece of the pie. If WotC's legal department throws a fit and says that company X uses product name Y and their not happy about it, your in trouble!

WotC has enough power to just about obliterate any other RPG company or group of RPG companies on this globe. Just pray your not in their way! It doesn't really matter whether your right or not, it's just about who's got the most money.

If you want to use something questionable either talk to WotC or take your chances (or do both for all i care), but please stop acting asif this is going to mean anything. Speculating about it was all fine and well, but now the same point just keeps getting tossed back and forth. This is not going to help anyone who just tuned in...

Although I did not name who was who in regard to a contract, that is the crux of my first post to the thread...

People can claim anything they wish in a contract, and those who agree to the contract can break the agreement if they wish. The only thing that matters in the end is what a court says if such a contract dispute goes to trial.

 

[The Sigil]

As an aside, and technically speaking, the OGL in a product that also uses the d20 System License which requires 5% of a product be OGC may include the sum of the OGL as part of the 5% under the current terms of the d20 System License Guide. If the product is less than 18,980 words long, the 949 words of the OGL itself satisfies the terms of the 5% simply by its inclusion. The ethical arguments aside, of course, I am not advocating this usage but it is an interesting loophole that I believe WotC should close in the furture in the d20 System License and Guide. I do, however, bring this up for good reason.

As another aside, for some reason, I was under the impression that the text of the OGL itself is NOT Open Game Content. Perhaps I am wrong - if it were, WotC could not restrict revisions to the OGL because doing so would be offering OGC under other terms than the OGL itself. *ducks*

Sorry, hope this doesn't hijack the thread.

--The Sigil

 

[Mark]

As another aside, for some reason, I was under the impression that the text of the OGL itself is NOT Open Game Content. Perhaps I am wrong - if it were, WotC could not restrict revisions to the OGL because doing so would be offering OGC under other terms than the OGL itself.

Where do you get this impression? I'm basing mine on the fact that the OGL is included in the SRD and thus released under its own terms despite any restrictions regarding revisions.

In section 2 of the OGL it states - "You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself." which excepts it from disallowance of revision since in section 9 it says - "Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License." This allows for publication under any version now or in the future but leaves room for the d20 System License to require use of the most recent version, as I understand it. (Emphasis mine though still not a lawyer...)

 

[Orcus]

What is your opinion on making a declaration of Product Identity that doesn't even appear in the work itself?

I think it highlights a realization they have come to that is problematic for them, namely that unless they make a product under the license with particular stuff they want to claim as PI in it, there is no real way to claim that stuff as PI, absent the d20 STL which doesnt apply to OGL-only products. So they put a list of stuff they want to PI in the SRD but that PI isnt in the SRD. Sort of a "here is some open content and a list of stuff we want to keep as PI."

In my opinion that doesnt work.

Clark

(this is my opinion and is not legal advice)

 

[Mark]

I think it highlights a realization they have come to that is problematic for them, namely that unless they make a product under the license with particular stuff they want to claim as PI in it, there is no real way to claim that stuff as PI, absent the d20 STL which doesnt apply to OGL-only products. So they put a list of stuff they want to PI in the SRD but that PI isnt in the SRD. Sort of a "here is some open content and a list of stuff we want to keep as PI."

In my opinion that doesnt work.

Clark

(this is my opinion and is not legal advice)

I went in search (on the Necromancer Games site) of a proper designation that would work and downloaded the Wizard's Amulet and its revised counterpart. How does what WotC is doing in this case differ from the mention of a list of products names in a PI section of one of those product names when the other product names are not found elsewhere in that given product (such as the PI designation in the Wizard's Amulet (revised)?

From The Wizard's Amulet (revised) PI section-

Designation of Product Identity: The following items are hereby designated as Product Identity as provided in section 1(e) of the Open Game License:
1. The name “Necromancer Games” as well as all logos and identifying marks of Necromancer Games, Inc., including but not limited to the Orcus logo and the phrase “Third Edition Rules, First Edition Feel”;
2. The Necromancer Games product names “The Wizard’s Amulet,” “The Crucible of Freya,” “Rappan Athuk,“ and “Dungeon of Graves,” except for their appearance within Section 15 of the Open Game License;
3. All artwork, illustrations, or graphic design including any text contained within such artwork, illustrations, or graphic design.
4. The proper names of all characters (including the names of the pregenerated characters included in the accompanying Pregenerated Characters download), NPCs, places, locations and things, including but not limited to: Corian, Galdar, Eralion, Feriblan, Orcus, Vortigern, Talon, Reme, Fairhill, Bard’s Gate, Stoneheart Mountains, Starving Stirge, River Greywash, tradeway; as well as all material contained under the “Corian‘s Supplemental Information” and “Eralion‘s Letter heading.”

(Emphasis mine)

{Regarding the first emphasized section from the above quote from the PI designation section of The Wizard's Amulet (revised)} Of the product names mentioned, the only one that I could find appearing in The Wizard's Amulet (revised) was The Wizard's Amulet except as mentioned in the PI designation section. I assume you used a general list to failsafe against accidental inclusion of those items in the list, which seems like a smart way to go.

I would think that the SRD is just as valid a place for any and all WotC PI'd terms even if those terms do not appear in the given OGL'd product (the SRD) or even if they have yet to appear in an OGL'd product, if WotC has the intention of using those terms as PI...or...if they wish to be clear in the use of those terms when allowed in third party published materials (such as Dragon magazine) where they might show up in an OGC section but need to be reserved as WotC PI.

From the OGL section 1 (e)

"Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content

As it says, any of the above can be included as PI but nowhere does it require that the PI actually appear in the product beyond the PI designation section, so I would think both Necromancer and WotC are in safe harbor with the above. However, I am not sure about someone being able to declare something as PI when that someone does not even mention those things directly in the process of that declaration.

{Regarding the second emphasized section from the above quote from the PI designation section of The Wizard's Amulet (revised)} In The Wizard's Amulet (revised) PI section it even includes PIing of names it doesn't mention in the product and in fact are not specifically mentioned where they are being declared as PI (the separate download referred to as pregenerated characters, including such names as Bannor, Belflin, Blackthorne, etc.). It's a separate download and, I would think, must be considered as distributed separately, and I would think requires a separate OGL within the zip file that is distributed. Correct me if I am wrong, please. If someone were to get ahold of The Wizard's Amulet (revised) but was unable to obtain the pregen character files, how are they to know what names have been declared as PI?

I could not find an OGL or PI designation in the original The Wizard's Amulet, btw.

Further, to bring us back around to the subject of "d20" as trademark and referring to the "d20 System" versus "d20" as general usage referring to the platonic solid as a random number generating device... I assume that "The Wizard's Amulet is only PI'd as it refers to the title of that download and not as it refers to any individual mention of an arcane spellcaster's jewelry, I.E. a separate company using the phrase "in the room the party finds the wizard's amulet on a table."

Pardon my mention of this but it seems a good example as any of a PI expression being distinct from a separate but identical expression. In addition, please do not mistake my musing as legal advice or in any way adversarial. I am merely trying to discuss the issue as fully as possible with whatever examples are at my disposal and easily referenced by others who are taking part in this discussion.

 

[Mark]

My bad. It states in the legal files of the SRD (as far back as I have kept them) that "The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself." Didn't want to leave that out there in case someone reads this thread and becomes mistaken as I was on this point. My apologies.