Questions about the new SRD [summon Orcus!]

[dcollins]

Reposting from my thread in "General" on the subject...


The assertion the "d20" is Product Identity creates a direct legal contradiction, because "d20" is itself used throughout the SRD (in Basics, Combat, etc.), which is identified as being Open Game Content.

You've got something identified as both section 1(d) and 1(e), even though those "specifically exclude" each other.

(afstanton, to your point, this is otherwise as it should be... nothing identified as PI can at the same time be in the SRD as OGC. "d20" stands out as the single exception to this which creates a highly distressing legal contradiction.)


And...

(For those not up on the history, during questioning over the revised conversion license with its own legal typos over a year ago, a WOTC spokesperson suggested that WOTC wanted to trademark "d20" (again, not just "d20 System"), even though no such trademark ever showed up at the US Patent & Trademark Office. Unclear whether this re-indicates the confusion on that, desire for that, or a mistake.)

I can tolerate some imprecision in material which is "just a game". However, sloppiness in what is alleged to be a binding legal agreement really apalls me.

 

[JohnNephew]

It appears that WotC is attempting to make that distinction in the portions of the claimed PI and OGL quoted in Ben's post at the top of the thread, as set apart from their more common usage in the text of the SRD refering to "(d20)" as a "twenty-sided die".

I'm sorry, I don't see that. I think you're reading that into their text, mistaking what you think their motivations are for what they are actually doing. No where do I see them say, "We claim "d20" as Product Identity when used in circumstances X, Y, and Z, but not as product identity common usage in text as indicating a twenty-sided die." Nor do I see them provide any contextual limitations on the other terms they now claim as Product Identity. They just say: This is Product Identity. This means that to use "this," whatever it is, they expect you to have a separate licensing agreement or written permission.

In the past, WotC had no need for any delineation of product identity. If it was in the SRD, it was Open Content, and never Product Identity. If it wasn't in the SRD, it was not Open (and thus did not need to be Product Identity). There were no trademarks in the SRD, and thus no need for trademark licenses if you used just the SRD and the OGL. To use certain of WotC's trademarks (d20 System logo, mention of Dungeons & Dragons, etc.), you had to follow the D20STL. Very simple.

Now that's out the window. Now they claim that things that were not product identity in the past (the three letters "d20") are -- something that may not even be a valid claim under the rules they themselves laid down. Now additional agreements are necessary, or the D20 System Trademark License will have to be expanded to cover additional Product Identity permissions as well as trademark licensing.

Not when we get to the point of whether or not WotC is also claiming "d20" as a trademark.

But we're not at that point. We're talking about WotC claiming Product Identity, as quoted in the first post in this thread. The word "trademark" appears nowhere in that post. Bringing trademarks into the picture only clouds the issue.

Not precisely. If WotC is making the claim that "d20" is a trademark as it refers to the system, and since the OGL has always had separate restrictions on trademakrs, then it was never truly open content...as it refers to the system, though it's more general usage as refering to a twenty sided die could very well be. That's the distinction I believe that they are trying to make and the reason that this conversation is not simply about PI but also involves trademarks.

If "d20" is a trademark, then there is no need to label it as Product Identity, since it already falls under the protections for trademarks that the OGL explicitly provides. That is why I don't think this conversation involves trademarks.

I see no statement in the WotC material that suggests any kind of distinction between one usage of "d20" and another. If you can find a statement that provides any kind of contextual limitation on when the three letters "d20" are Product Identity and when they are not, I would very much like to see it.

Indeed, since Product Identity is specifically something found within Open Game Content, their labeling "d20" as Product Identity seems inherently inclusive of the various ways it is used within the SRD.

Nevertheless, it seems clear to me that aside from their specific instances where they have delineated the usage of the d20 logo and appropriate accompanying text phrases, they are not interested in allowing folks to claim closer compatibility through the use of such things as using "d20" within th name of a product or other such refering to the term d20 as it refers to the system. As to use of it to designate the type of die to cast in a given situation, that seems to be acceptable under their terms.

I suspect you are correct about their motivations -- they want to assert control over the use of "d20" in product names and marketing. However, it looks to me like they are doing so in a poorly thought out way, and they are undermining much of the simplicity and clarity that had previously guided their handling of the licenses.

 

[Mark]

...they want to assert control over the use of "d20" in product names and marketing. However, it looks to me like they are doing so in a poorly thought out way, and they are undermining much of the simplicity and clarity that had previously guided their handling of the licenses.

I agree with that assessment and also think the way in which they are going about it is the crux of why we disagree on the other points of the discussion. Forgive me if I bow out for a while and give some elbow room to some others in the dicussion. I've monopolized this thread too long already, I believe. Perhaps I'll pop back in a little later down the line if something I've posted seems to be misconstrued as opposed to being simply something with which someone disagrees. Thanks for your time, everyone, I appreciate the discussion.

 

[The Sigil]

IANAL...

Ultimately, I think the question boils down to this:

(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;

This outlines what can constitute Product Identity. In order for WotC to claim PI on the term "d20," it must fall into one of the above areas. Let's play "process of elimination."

"d20" is not a product name.
"d20" is not a product line name.
"d20" is not a logo - there is a "d20 logo" but that is separate and independent from the term "d20"
"d20" is not an identifying marks nor trade dress, as many items and systems use icosahedrons
"d20" is neither an artifact nor creature nor character.
"d20" is not a story, storyline, plot, thematic element, dialogue, incident, language, artwork, symbol, design, depiction, likeness, format, pose, concept, theme, or visual or audio representation.
"d20" is not the name or description of a character, spell, enchantment, personality, team, persona, likeness, or special ability.
"d20" is not the name of a plane, location, environment, creature, equipment, magical or supernatural ability or of a logo, symbol, or graphic design.
"d20" is not a trademark nor a registered trademark ("d20 System" is, but "d20" is not)

The term "d20" is not owned by WotC - it has demonstrably existed in common gaming parlance for years (Palladium books springs immediately to mind as a company that has used the term "d20" in its books for over a decade, I'm sure there are others).

So it fails ALL of the tests for "can this be claimed as PI?"

Furthermore, PI must specifically exclude Open Game Content (see the final line... "and specifically excludes Open Game Content"). "d20" was entered into Open Game Content as of version 3.0 of the OGL. Note that the generic term "d20" as used to represent an icosahedral die, was added to the canon of OGC in the 3.0 SRD, Basics section. From the 3.0 SRD, "Basics" Section:

This material is Open Game Content, and is licensed for public use under the terms of the Open Game License v1.0a.

DICE NOTATION

These rules use the following die notations:
· d4 = four sided die
· d6 = six sided die
· d8 = eight sided die
· d10 = ten sided die
· d12 = twelve sided die
· d20 = twenty sided die

Clearly, the OGC designation in 3.0 included "d20."

Thus, because "d20" was Open Game Content, WotC cannot later call it Product Identity, per the terms of the Open Game License itself... because, in essence, "Product Identity cannot include Open Game Content."

I think it goes somewhat back to the "infringing upon PI" argument - if you create Joe the Fighter in 2001 and PI the name in Bob's Book Of Stuff, and I create another fighter that I name "Joe the Fighter" in 2002 and make him OGC in Billy's Book of Stuff, have I infringed your PI and am I in violation of the OGL? I believe the answer is, "if I am (or possibly "should be") aware of your PI, yes... otherwise, no."

Let's reverse that. Suppose I create "Joe the Fighter" in 2001 and OGC him and later you create another "Joe the Fighter" in 2002 and decide to PI him. Is your PI designation made invalid? I think, again, the answer is, "if you were aware of my Joe the Fighter, then your PI designation is invalid because you knew 'Joe the Fighter' was OGC and PI specifically excludes OGC... hence you can't PI it." Though, I assume if you weren't aware of my version of "Joe the Fighter" your claim might stand up.

At the end of the day, it will be very hard for WotC to claim ignorance, since WotC itself released "d20" as Open Game Content. I have a hard time thinking they'll be able to convince anyone that they didn't know it was already Open Game Content - since they were the ones who made it so - when they released version 3.5 of the SRD.

Again, IANAL, but claiming "d20" as PI seems to be an invalid claim on three counts...

One: "Product Identity" ... specifically excludes the Open Game Content and "d20" was already Open Game Content (and WotC can't claim ignorance as they were the ones who released it).

Two: "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 -- "d20" falls under none of the acceptable categories and as such cannot be PI'd.

Three: clearly identified as Product identity by the owner of the Product Identity -- WotC is not the owner of the term "d20" and therefore cannot designate it as Product Identity.

Note that if any one of the three above holds true, than claiming "d20" is an invalid claim, as PI must be ALL of (not open), (one of the things on the list), (owned by WotC)... and my contention is that not only is it not all three, it is none of the three.

Again, IANAL, etc. etc. but that's my take on the matter. I don't think WotC can claim "d20" as a PI. It will be interesting to see who takes up the challenge of publishing material containing the term "d20" and 3.5 compatible - under the assumption that "d20" cannot be a PI term - and runs afoul of WotC's lawyers.

Personally, I think WotC had best drop this term from their PI list ASAP or specifically release it as OGC or they risk pissing off not just third party publishers, but the gaming industry as a whole. I also think that if they do not it will be interesting to see whether or not WotC decides to try to enforce "selective compliance" against those who use the term "d20" in their titles or advertising. If they do, I fully expect the bulk of the 3rd-party publishing community to abandon the d20 Logo altogether and come up with an alternative "icosahedral" logo - probably made into Open Game Content - and to basically drop future WotC SRD updates altogether.

--The Sigil

 

[Voadam]

If the term "d20" as it thus appears has already been released as Open Content (in the Core Mechanic section of the prior SRD), there's no way for Wizards to stick it back under the PI umbrella-- is there?


Wulf

I'm specifically not offering legal advice here, but I think they can for the new OGC document they released only. I believe you could still use the old 3.0 released version, but I'm not sure if you could do so in conjunction with a product that used the 3.5 srd as well where it is declared PI.

For instance, Green Ronin put out the Freeport modules as 100 % OGC (maybe not including art and maps, I don't remember), I think they could do a reprint of the same material keeping the character names as PI the second time around. You could still use the original OGC character names from the first printings, but anyone just relying upon the second printing could not. I'm not sure how it would work if you included both, if the PI of one source you rely on trumps the OGC of another.

 

[Kichwas]

Isn't it essentially too late to PI 'd20', as it's been openb since 2000 and used left and right without challenge from WotC by numerous people.

I'm fairly certain that makes it too late to Trademark it.

Sort of like Macintosh can't tradmark the word 'Mouse'.

Not sure how that reflects on PI.

 

[JoeCrow]

Don't Panic.

Here's a note from the OGL list, relayed by Lee Valentine/HUDarklord@aol.com.

WotC is aware of the need for clarification. <snip> For now, here's what Andy Smith wrote me:

Lee

---

Yes, I realize that line needs to be clarified, I'm surprised it didn't jump out at me when I first wrote it. I'll run it by legal and update the SRD with a more accurate designation.

Andy Smith
Publishing/d20 Licensing
Wizards of the Coast, Inc.

It's an editing mistake, not an insidious plot, guys. Chill. All will be well, and all manner of things will be well. Picture yourself in a boat on a river...

 

[dcollins]

Certainly hope that does get edited out. As it stands, that's a glaring legal error.

 

[Monster Manuel]

Re: Don't Panic.

Here's a note from the OGL list, relayed by Lee Valentine/HUDarklord@aol.com.



It's an editing mistake, not an insidious plot, guys. Chill. All will be well, and all manner of things will be well. Picture yourself in a boat on a river...

Yeah, on the river STYX! Sorry. I don't know what came over me. Carry on.

 

[storyguide3]

Certainly hope that does get edited out. As it stands, that's a glaring legal error.

How so? An overexuberant attempt to claim something as PI that probably dosen't fall into the enumerated PI categories (though the OGL lists are full of controversy on that point) but how a glaring legal error?