<<As a non-lawyer, it's not entirely clear to me that the intent not to
make a mistake completely protects one if one does make a mistake. I
mean, maybe it does -- but I'd sort of like to see more to the argument
than that.
>>
I agree. Past intent not to do something is only vaguely relevant.
What matters is whether the person (or persons) making the release had the authority (if they so desired) to release "Dungeon Master" as OGC (while still maintaining its trademarked status).
Past intent seems hardly relevant at all. If the person had no authority to make the release of "Dungeon Master", then even if there is no audit trail then Dungeon Master would not be lawfully released OGC. If I have a company and my janitor gets his hands on my pre-release version of a product and releases it and declares OGC as he sees fit, then unless I designated him to release things, then the fact that he is a company employee is irrelevant -- he doesn't have the authority to make OGC contribution decisions unless I gave it to him.
If, however, I have a legal team and editorial staff and I say: "you guys have full authority to release whatever you see fit as OGC" then they can contribute anything they want as OGC.
Whether there's a track record about saying that "Dungeon Master" is never to be released as OGC is irrelevant except for one purpose: to persuade others that the employees in question did not have the right to make the release. However, whether the employees did have such rights is a factual question separate from past policy declarations.
And again, I think the question of WotC's actions is less interesting than what would happen in a different scenario where a solo publisher who has the authority to make a release:
a) accidentally releases a TM as OGC
b) purposefully releases a TM as OGC
Lee
