Questions about the new SRD [summon Orcus!]

[afstanton]

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

I must concur. As The Sigil pointed out, in order to claim something as PI it must fulfill a set of requirements, including ownership, and the term "d20" fulfills none of them. WotC owns "d20 System" and the d20 graphic logo as Trademarks, but does not own the term "d20" and therefore cannot attempt to claim it as PI for any purpose.

I also agree that they should have properly credited the 3.0 SRD in the 3.5 SRD - it's a separate document. If third party publishers have to properly credit their own works, WotC should as well.

As an aside, I'm also a bit concerned about the "...character names (including those used in the names of spells or items), places, ..." clause in the PI section, as I don't recall any character names present, and the only places are the inner planes. This renders the entire section on planes useless, and since everything else claimed as PI isn't even in the SRD as far as I can tell, why claim character names?

Does it even make sense to include a PI section when large portions don't even exist in the product being published?

Aaron

 

[seasong]

I agree that this (WotC's bungled legal copy) is a serious topic, but I have to laugh about it, or I will start screaming .

"In other news today, the 2003 SRD included a shocking announcement that the term d20, as used in the 2003 SRD, was product identity and thus not open content. Fans world wide gave a collective gasp, as they had really hoped for an improved version of the term they could use in their own publications."

"Said one publisher who wished to remain anonymous, 'I just don't understand! Now I'm gonna have to edit out all of the uses of the term d20 from the 2003 document before I publish it, and then use the Open Content version of the term from the 2000 document. Do you know how much cutting and pasting that is?' He then went on to mutter something about the inferiority of the 2000 document's 'd20' term, but it was almost inaudible."

"Fans are developing all manner of solutions, however, including their own upgraded term, '1d20', which some say is particularly useful for for its variable-numeric dongle, hearkening back to the term's first public use in the 70s."

 

[Mark]

They know they cannot trademark "d20"...

I don't think they know this, nor do I think it is necessarily true. Your premise is flawed which is why you and I seem to be having so much trouble in this discussion. You keep wanting people to aaddress this whole issue as if this is a fact and it simply is not.

 

[Wulf Ratbane]

I don't think they know this, nor do I think it is necessarily true. Your premise is flawed which is why you and I seem to be having so much trouble in this discussion.

No, "we're having so much trouble" because you are being facetious again.

But I suppose you could be right, Mark. It's plausible that Hasbro would intentionally leave as important a term as d20 outside the protection of trademark law and instead try to claim it as Product Identity years after the release of the d20 system. I'm sure they trademarked [d20 system cause it sounded better, and the d20 logo cause it looks prettier.

It could be that every other educated opinion on the matter is incorrect.

Yes. It could be that. I defer to your greater wisdom and insight.

You keep wanting people to aaddress this whole issue as if this is a fact and it simply is not.

I do? I keep doing that? Where'd I do that, exactly?


Wulf

 

[Mark]

Lashing out doesn't change things, Ben.

I refer you to this page -

http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

Specifically the section on descriptive marks -

"A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). For example, "Holiday Inn," "All Bran," and "Vision Center" all describe some aspect of the underlying product or service (respectively, hotel rooms, breakfast cereal, optical services). They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning." Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.

A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product. Thus, for example, the term "Holiday Inn" has acquired secondary meaning because the consuming public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys. Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983)."

It's my contention (and possibly WotC's) that over time the simple articulation of "d20" as it pertains to game systems, not as it pertains to a platonic solid, has potentially become synonymous with the trademark "d20 System" and may well be possible to successfully register for trademark status.

I think that WotC is proceeding under the premise that it is possible for something to become a trademark and be prevented from being used as OGC in future works on that basis. While in most cases it would seem impossible to remove OGC from the pool, I believe they are working under the idea that the sections in the OGL as pertains to trademarks make it possible to pull "d20" back from the pool as it pertains to a system.

That's what makes your premise flawed. As to whether or not WotC's premise (if indeed it is their premise) is flawed, that's a question to be answered retroactively. It's only flawed if it doesn't work.

 

[coyote6]

Mark, if you aren't a lawyer, you're doing a good impression of one.

 

[Wulf Ratbane]

Lashing out doesn't change things, Ben.

On the contrary, Mark. It has served me well several times now to call you on useless blather and elicit an insightful response from you. Thanks again!

It's my contention (and possibly WotC's) that over time the simple articulation of "d20" as it pertains to game systems . . . has potentially become synonymous with the trademark "d20 System" and may well be possible to successfully register for trademark status.

Agreed. If that weren't the case, there'd be no point in claiming "d20 compatible" as it would have no meaning. Clearly, it has already acquired a synonymous meaning, otherwise some folks wouldn't be trying to circumvent the d20STL in this fashion.

On the other hand, that's irrelevant-- as Wizards is NOT trying to claim a trademark. At this time, they are claiming d20 as Product Identity.

That's what makes your premise flawed.

What premise is it of mine, exactly, that you think you are attacking? I'm sure you think you're right about something, but I'll be damned if I can tell what it is. Seriously, I'd be well served by a recap of "my premise," as you see it. As near as I can tell-- with the exception that I am talking about what is as opposed to you talking about what may be, I think we're on the same side of the fence.


Wulf

 

[Wulf Ratbane]

Mark, if you aren't a lawyer, you're doing a good impression of one.

Are you referring to the useless blather, the insightful posts, or both?


Wulf

 

[Mark]

On the other hand, that's irrelevant-- as Wizards is NOT trying to claim a trademark. At this time, they are claiming d20 as Product Identity.

From the 3.5E SRD Legal section
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), Forgotten Realms,...

You are being exceedingly rude to me. Please curtail that activity.

 

[seasong]

Actually Mark, not to rain on your parade, but that's NOT what the copy I downloaded says. Mine says:

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, Forgotten Realms...

And if you'll check the beginning of the thread, so does the one that Wulf downloaded.

I'm supposing, although you didn't say anything, that WotC has noticed their error and fixed it (you'll notice that the main thing Wulf was saying was that this was an error). In which case, hurrah!

But it doesn't invalidate what was being said about the version I downloaded .

Edit: He was being rude though. Blighter.