<<Ahh!! That is the whole point. Did the individual release it, or did
the company? The company posted it on their website, the company is
the one who actually released it, and they most certainly had the
authority.
>>
Just because it's on the company website -- that's meaningless. If I worked for you, you might say: "Lee, strip out all our art, trademarks, and character names, and release everything else to the website as 100% OGC". You might not verify my work for 3 months, assuming that I competently carried out my duties. When you find an error, however, you would be well within your rights to claim that I was unauthorized to release a trademark which slipped through. You would be quite correct in your contention.
So, again, I think it is not relevant that a corporate employee working under the auspices of the company did the release -- it matters what official privileges and discretion he had.
You are assuming that everything the employee releases is automatically a corporate-approved release. That is a correct association _IF_ the employee had sufficient discretionary powers to make the release (including deciding whether or not to release trademarks). If, however, he had less authority than he chose to exercise then his release is not 100% the same as a corporate-approved release.
<<
The individual worked for the company, and was acting on behalf of
the company in releasing sections of the SRD. Therefore, in this
capacity, he effectively was the company.
>>
Let's put the OGL aside. If an employee acts beyond his granted authority then he is not effectively the company. If I give you authority to license my copyrights but NOT my trademarks, then any contract you sign that licenses trademarks, then if we go to court I'll ask that all such trademark agreements be considered null and void. Why? Because the person signing the trademark agreements had no authority to sign them, rendering them non-binding.
<<Therefore, since they have the authority to>
release any of their IP, TM, etc, it is a legal release, and the term
is now OGC.
>
The fact that the company has such powers is absolutely irrelevant. It has to do with the employee's discretionary powers.
By your logic, Tim, the corporate cook could choose to he could sell away the entire company out from under the board of directors and CEO simply because he filed the right forms and put the sale on corporate stationery, and such a sale would be legally binding. Clearly it would not be. The person making the legal agreement must be authorized to make such an agreement or it is null and void.
The question is what power was vested by the company into the hands of the employee. If they granted him sufficient discretion, then what he licensed stands. If he had insufficient discretion, then the licensed material is invalid, because the OGL requires sufficient powers over the material to make the OGC declaration.
Tim, you act as if the case is 100% clear. It is not. I think that WotC had best come up with an official explanation pronto once it is brought to their attention or it will definitely be viewed as OGC.
Re: WotC there is only one deciding question about the OGC status of "Dungeon Master": did the employee posting the SRD sections have sufficient discretionary power to include trademarked material as OGC? Or alternately, was he operating under the explicit instructions of someone who had such discretionary power? If he carried out what he was told to do, and had the authority to do what he was told, then he is acting as the company. If he blew his orders then he failed to have the necessary authority to contribute and the OGC declaration is invalid.
If he did have the discretionary power, however, then as Bryant rightly pointed out, WotC has no recourse. The cure period cures contractual breaches, not buffoonery.
---
Again, I think this entire thread re: WotC is borderline speculation at this point. What really matters is:
what happens when somebody with authority DOES release a trademark as OGC?
That's more likely to sting many of us who do not have 40 some odd employees to pass blame on to and point fingers and declaring "lack of authority to contribute".
Lee
