I see where you are getting your interpretation of Section 7 from. However, allow me to give you my views on the matter... and then consult with your lawyer to determine which one you feel is on more solid legal ground.
Premise 1: The Open Game License, as a contract, falls under contractual law.
Premise 2:
The OGL is an open-ended agreement between parties. These parties consist of Party A, who releases Open Game Content, and any number of Parties B, who wish to re-use, derive, or otherwise utilize Party A's Open Game Content. For ease of argument, we will consider only one Party B for this thought exercise.
Conclusion 1:
Because the Open Game License falls under contractual law, its use must satisfy the basic principles of contract law - (1) competent parties, (2) consideration, and (3) mutual assent. We will for the sake of the thought exercise assume that both parties are competent. This leaves us with Consideration and Mutual Agreement to consider.
Consideration is legalese for "to make the contract binding, you must give up something in exchange." The OGL grants to Party B the ability to utilize copyrighted material (OGC) from Party A. In return, Party B agrees to afford the same terms to others (distribute under the OGL) and to avoid using certain words/phrases in their material (PI). Thus, Party A and Party B both receive Consideration, making the contract binding.
Finally, we have mutual assent. This means that both parties must be clear on the terms of the contract. If the terms are not well-defined, the contract is not binding. For the purposes of a contract between Party A and Party B, the terms are in fact well-defined, including exactly "what terms are PI?"
Because all three of the essential points of contract law are met, the OGL is a binding contract between Party A and Party B.
Now, let us consider the case that you seem to be asserting based on your reading of Section 7... that when Party B agrees to the Open Game License, it also agrees to the Product Identity designation of Party C, whom Party B has never even heard of, but who also published a work under the Open Game License.
Again, we must look for (1) competent parties, (2) consideration, and (3) mutual assent. And again, we will assume both are competent parties, to take care of #1.
There is Consideration in the terms of the OGL - Party C is offering use of their OGC, and in return are asking for Party B to use the OGL and to refrain from using words Party C has marked as Product Identity.
However, (3) mutual assent, is not satisfied. For mutual assent to occur, both parties must be fully informed of all the terms. Because Party B is unaware of the existence of Party C, there is no way in which mutual assent - Party B agreeing to the terms of Party C - can be satisfied.
Conclusion: If Party B is unaware of Party C, there can be no contract between them, and hence, the Open Game License does not and cannot apply between Parties B and C, as it is a contract. Because Open Game License does not apply between Parties B and C, Party B has NOT agreed to "avoid" Party C's Product Identity, and therefore has every right to use - and designate as OGC - terms that Party C has marked as Product Identity. Why? Again, because no contract exists between Parties B and C... hence, Party B does not need to consider Party C's Product Identity when creating its own content.
By the three principles of contract law, specifically mutual assent, it seems to be clear to me that the OGL does not create a vast "pool" of OGC and PI that everyone is beholden to observe. If it were intended to do so, it would require that everyone publishing under the OGL be provided with a list of terms that every other person everywhere had PI'd in order to be binding (IOW, to have full disclosure of all PI terms as required by the OGL). Furthermore, this list of terms would have to change every time a new person PI'd something... which would change the terms of the contract - which is not allowed under contract law without explicit consent of all parties involved. In other words, Publisher 15 would have to get approval from Publishers 1-14, who had already entered into the OGL and agreed to its terms at that time, in order to designate something as Product Identity, otherwise he would not have a valid agreement with Publishers 1-14 (again, assuming the OGL is meant to be one big contract that catches everyone who ever publishes under it).
Furthermore, since I have already published several things under the OGL, it further presumes I would have the ability to "block" you out of using ANYONE'S OGC by disagreeing with anything you might wish to designate as PI... because I can say, "no, that would change the terms of the contract by expanding the number of PI terms - and I don't agree to that." Since I, as a Contributor, don't agree to that amendment of PI, you do not have a license to use ANY Open Game Content. After all, you have to enter into an agreement with all Contributors by your reading, and if I refuse to change the terms of the contract, you have no agreement with ANY of the Contributors by your reading. In fact, it means that without WotC's consent (as the "first ones in under the OGL") NOBODY could declare PI. And even if WotC does agree to the PI of the "second ones in" (perhaps SSS), the "second ones in" could block PI designation by the third ones in and so forth. This goes on ad absurdium.
In other words, if we hold to your interpretation of the OGL as one big umbrella that all publishers have to come under, you have to seek permission from everyone who has ever published under the OGL, anywhere, any time, in order to designate ANYTHING as Product Identity - because that constitutes a material change to the contract. Clearly, as this is a virtual and practical impossibility, AND because three years of common practice have already shown that the interpretation is that it does not work in this manner, it is clear that the OGL is instead intended to apply on a "case-by-case" basis between only a Party B who is reusing material and Party A, the original OGC releaser - regardless of what Party C does.
Thus, when Party B uses Party A's material under the Open Game License, it need not worry about the Product Identity designation of Parties C, D, and E. It has no agreement with them, and therefore their designations of Product Identity are irrelevant to Party A. However, should Party A become aware of and decide to use Party C's OGC material, they then become beholden to that product's PI designation as well... though they can still ignore Parties D and E.
That, to me, is why your argument is invalid... because it relies upon Trademark Law while mine relies upon Contract Law... and the Open Game License is a Contract. So your reading of the Open Game License, specifically Section 7, seems overly broad.
The Open Game License is an agreement I enter into with Green Ronin when I re-use Bastion Press material... it's something I enter into with Bastion Press. That Green Ronin happens to use the same boilerplate legalese to license the use of *their* material is irrelevant. In the same way, when I completed the FHA Loan Application and submitted it to my bank for a home loan, I didn't expect to be able to walk into Bank of America or NationsBank or Washington Mutual and expect them to have a loan offer ready for me just because they have the same FHA forms, too. Or just because my employer uses the same paralegal to get a template for an offer of employement that the office down the street does, I don't expect that when my employer sends that job offer, that I also have a job with the office down the street.
Now I may be wrong, and you are welcome to check with your lawyer on that. But rest assured, if your interpretation that the OGL is one big umbrella that everyone has to come under holds, because all parties involved must agree to changes in the terms (including the list of PI terms), since I'm "already under the umbrella," by a good couple of years, I promise you right here and right now that I for one will use my power of "not approving the contract" to keep things simple - by never authorizing anyone to add any more PI terms ever again... so you won't have to worry about people "not knowing about the PI terms" because I will do my part and not allow any more of them. Even if every other publisher agreed to add a term, if I held out and said, "no," they couldn't do anything about it. A contract is in force and the terms cannot be changed unless EVERYONE agrees - and if everyone but me wants a change, well, they're stuck under the old terms.
Come to think of it, I hope you're right in your interpretation - then everyone will have to come crawling to me just to add what they want to the list of PI terms. And I could demand monetary compensation. And if there are a lot of us like me out there, you'll be priced out of making material if you want any PI at all. See, it just doesn't work. Your interpretation is flawed if we carry it to its logical conclusion under contract law. :-(
--The Sigil
_________________________________________________________________
Protect your PC - get McAfee.com VirusScan Online http://clinic.mcafee.com/clinic/ibuy/campaign.asp?cid=3963
_______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
