Questions about the new SRD [summon Orcus!]

[The Sigil]

Re: Re: Questions about the new SRD [summon Orcus!]

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.

Actually, I'm not sure you can.

(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 (emphasis mine)

I may be reading that wrong, but I believe this means, in a nutshell:

"You can't turn extant Open Game Content into Product Identity" because the definition of PI specificially excludes OGC.

In other words, once it's opened, it can't be "put back."

The only argument one could have for having a PI designation of, say, "Bill Fighter" when a book published the previous year has an OGC character "Bill Fighter" is if the PI publisher has no knowledge of the OGC version. That'll be darn hard to claim if you were the one who made the OGC version of "Bill Fighter."

Hope that's both short and clear.

--The Sigil

 

[dcollins]

How so?

See my first post above on 7/22.

I think they could do a reprint of the same material keeping the character names as PI the second time around.

Agreeing with Sigil: the WOTC FAQ specifically notes this is not possible: http://www.wizards.com/D20/article.asp?x=dt20010417g

Q: If I identify something as Product Identity that was previously distributed as Open Game Content, does the material become Product Identity?

A: No. Once content has been distributed as Open Game Content, it cannot become Product Identity, even if you are the original creator of the content.

 

[Wulf Ratbane]

The legal portion has been updated. It now reads:

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), [snip]

So... How does "d20 (when used as a trademark)" change things?

1) Is d20 used as a trademark anywhere in the SRD, such that it requires additional protection as PI?

2) Does it functionally close the "d20 XXXX" product title loophole?


Wulf

 

[Mark]

The legal portion has been updated. It now reads:

Thanks for the update.

So... How does "d20 (when used as a trademark)" change things?

1) Is d20 used as a trademark anywhere in the SRD, such that it requires additional protection as PI?

2) Does it functionally close the "d20 XXXX" product title loophole?

It appears to be a protection against the compatability loophole some people have been exploiting. Seems reasonable. Their pool, their rule, and all that.

 

[kingpaul]

It appears to be a protection against the compatability loophole some people have been exploiting. Seems reasonable. Their pool, their rule, and all that.

Howerver, and IANAL, this is all part of the RSRD. The SRD didn't have a PI declaration, so what's stopping someone from using d20 in the title?

 

[Wulf Ratbane]

It appears to be a protection against the compatability loophole some people have been exploiting. Seems reasonable. Their pool, their rule, and all that.

I concur, on all points-- but does it work?

Originally posted by kingpaul
Howerver, and IANAL, this is all part of the RSRD. The SRD didn't have a PI declaration, so what's stopping someone from using d20 in the title?

More importantly, if the term d20 was already released as OGC in the SRD, the RSRD can't possibly attempt to put it back under the PI umbrella. That train has sailed, as they say...


Wulf

 

[Mark]

I concur, on all points-- but does it work?

Full circle, Ben. You're probably not going to like this but...

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.

So, yes, it will probably work.

I do not know of anyone who wishes to continue to use the d20 logo and d20 System License who is both in a position to (successfully or not) challenge their stance and also of a mind to do so. Perhaps there is, but it seems somewhat defeatist.

What does it ultimately gain anyone to challenge their stance?

Challenge and lose and you potentially cripple your own name and your own brand in a rather small and incestuous (figuratively speaking, of course) d20 community made up mostly of small publishing companies and one giant corporation. Challenge and win and and the same side effects are likely even if you achieve a short term gain. If a successful challenge is made and the "d20" brand is diluted due to everyone and anyone being able to plaster it on anything they wish, everyone loses in the long run. I do not see the upside to challenging their wishes in this case.

Further, "Breach and Cure" doesn't seem to make any contractual provisions for challenges in regards to the timeframe. Trials (and even arbitration, if that were the venue) can be long and costly. In the meantime, while someone challenges and the thirty days passes, do they lose their right to use the d20 logo, the d20 System License, and the OGL should it be deemed they are in continued breach of contract? Are they only in breach if they lose the challenge? Could someone successfully challenge and yet still find themselves unable to use the "official" trappings, left then only with the right through their successful challenge to use the simple character "d20"? At what point does Hasbro/WotC decide they do not wish to continue making the d20 logo and d20 System License available because it becomes too burdensome to fight such battles?

Now, it might be that there are other companies outside of the d20 community that have some interest in not allowing the continued pressing of WotC to lay claim to "d20" as a trademark. If there is a quarter from where a challenge might come, I would suspect it from there. They have less to lose, win or lose, aside from their money and time, since they are not likely to have interest in the logo or licensing but merely keeping available the simple demarkation of "d20" itself. I have to wonder, though, how important keeping the simple characters "d20" might be to anyone.

Howerver, and IANAL, this is all part of the RSRD. The SRD didn't have a PI declaration, so what's stopping someone from using d20 in the title?

The chance that it might be the last time that someone uses the logo or either license at all, perhaps?

More importantly, if the term d20 was already released as OGC in the SRD, the RSRD can't possibly attempt to put it back under the PI umbrella. That train has sailed, as they say...

"More importantly", how? It might be more important theoretically, but I do not think it is more important in circumstance or practice due to the various points I have previously made.

btw, I didn't change my non-lawyer status between the beginning of this thread and the present time, should it be a question in your mind...

 

[smetzger]

More importantly, if the term d20 was already released as OGC in the SRD, the RSRD can't possibly attempt to put it back under the PI umbrella. That train has sailed, as they say...

Its PI for the 3.5 SRD. So, if you want to use the 3.5 SRD you cannot use 'd20'. If you stick to using the 3.0 SRD, or don't use any SRD, then you can use d20 to your hearts content.

 

[Cergorach]

Its PI for the 3.5 SRD. So, if you want to use the 3.5 SRD you cannot use 'd20'. If you stick to using the 3.0 SRD, or don't use any SRD, then you can use d20 to your hearts content.

Now correct me if i'm wrong, but the "d20" from the SRD 3.5 is PI, the "d20" from the SRD 3.0 is OGL. So if one used the "d20" from the SRD 3.0 with the SRD 3.5 rules one would be following the rules WotC set, correct?

 

[Wulf Ratbane]

Its PI for the 3.5 SRD. So, if you want to use the 3.5 SRD you cannot use 'd20'. If you stick to using the 3.0 SRD, or don't use any SRD, then you can use d20 to your hearts content.

First of all, everyone knows what WOTC is trying to do. Most of us agree with their motives. I'm simply here to talk about the methods, which I think are flawed. They know they cannot trademark "d20", and they cannot control its use through the d20 STL, as we're talking about its use by folks who are trying to use the OGL but not the d20STL. They are attempting to circumvent the use of "d20" on OGL-only products by shoe-horning product identity into the 3.5 SRD.
In order to be the most useful to third parties, the SRD needs to be 100% open. That's my motivation (in addition to just enjoying a good discussion).

Their designation, even the revised one, seems flawed to me. The purpose of the PI declaration is to designate those portions of your own Open Content that are Product Identity. Frankly, I don't know that "d20, used as a trademark" exists anywhere within the 3.5 SRD (I certainly can't find it used in that fashion in the 3.0 SRD); and they can't pre-emptively designate as Product Identity something that MAY be used in SOMEONE ELSE's product in that fashion. They can't carve out product identity in someone else work, they can only designate it within their own work in order to prevent its misuse elsewhere. So unless they have, in fact, used "d20, as a trademark" within the body of the 3.5 SRD, this effort (which I support on the merits, if not on the method) isn't going to hold up.

2) Scott, I think you are incorrect. If "d20" is OGL in the 3.0 SRD, it is OGL forever. It is impossible for WOTC or anyone to designate anything that is Open Content as Product Identity. Read the definition Product Identity again. It specifically excludes Open Content.

3) I don't believe there's ever going to be any such thing as "using the 3.0 SRD" versus "using the 3.5 SRD." Clearly, the 3.5 SRD is a derivative work of the 3.0 SRD, so if it was ever a concern to "use one or the other" it would be a simple matter for someone to re-write the 3.0 SRD, entirely open, and incorporate the changes of 3.5-- adding, dropping, or changing skill descriptions, class abilities, etc. Frankly, it is my opinion that the 3.5 SRD should properly have credited the 3.0 SRD in its Copyright Notice. At any rate, this is one of the reasons I don't want to see the 3.5 SRD all muddied up...

Wulf