Firstly, I think it is without merit when you look at contract law.
Again, "Competence," "Consideration," "Mutual Assent" are required for a contract - such as the OGL - to be binding.
Within the realm of Mutual Assent is the concept that all of the terms in the contract must be absolutely clear to both parties.
It seems no stretch to say that since one term of the Open Game License is, "I agree to refrain from using Product Identity," one must therefore conclude that it must be clear, at the time of entering into the license, there must be some identifiable "list" that you agree to avoid when you enter into the OGL, and this list must be fully disclosed at that time.
Furthermore, contract law requires all parties to approve any changes to the contract - which would include any changes/additions to that "list" - before they become valid. So if we truly interpret Section 7 as referring to what anyone anywhere declares as PI, that means that all "later additions" to the "list" of what is PI must be approved by those who entered into the contract before. For example, if I entered into the contract in 2001 by publishing under the OGL (which I did), and someone else decides to enter into the contract in 2002 by publishing under the OGL (which they have), they have to have my approval in order to declare ANYTHING as PI... otherwise the terms of the contract have been materially altered without my explicit consent (because I consented to the "list of PI" as it appeared in 2001, not as it appeared in 2002).
It therefore stands to reason that if we hold this approach, in order to declare anything at all PI, you must have explicit permission from EVERY publisher, no matter how tiny, who has EVER published under the OGL prior to you - because when you declare something PI, you are changing the terms of the contract they agreed to - which in contract law is illegal without their express permission... and nowhere in the OGL itself does it say that you give permission for others to declare things as PI later on. Which makes publishing under the OGL impossible - because you would have to know about that guy who did a little write-up on the typewriter in Zaire for his friend... or he could come after you and claim your PI designation is invalid, in the same way it has been proposed that someone you've never heard of could come after you and declare you in breach for using their Product Identity.
And again, since I published under the OGL WAY back in the days of Eric Noah's adventure contest, a good piece before Green Ronin, Bastion Press, and many other heavy hitters even existed, that would give me standing to invoke contract law and make all or their Product Identity designations null and void, as these were done without my consent and have materially changed the contract I entered into. Do you really, honestly, truly, think I could try that and get away with it in court? I didn't, either. But I promise you, if anyone does try to pull Product Identity crap, they'd darn well better hope they published within a month of the original SRD's release - or I'll be filing breach of contract on them for changing the terms of the contract I agreed to right after the SRD was released by publishing under the OGL - and will happily rip their PI designations away - trust me, I'm more than happy to play the "Mutually Assured Destruction" game with IP if someone is going to try to jerk with the license on a dubious reading.
Thus, in order for the OGL to remain self-consistent under contract law, it is absolutely necessary to trigger the "reformation" clause - and to read, "any Product Identity" as "any Product Identity of which you are aware" (in the strictest reading) or "any Product Identity in a product that you used to create your work - i.e., Section 15 entries - since it is clear you have knowingly entered into a contractual relationship with the Contributors that created those works and therefore have the ability and responsibility to avoid the Product Identity contained therein."
That still doesn't clear up the "Product X uses OGC Y from Product Z but omits Product Identity A, then Product B from Company C uses OGC Y and adds OGC A1 case." However, as products get long and convoluted Section 15s - and material goes out of print and becomes literally inaccessible, I would suggest that it will not be "a pain but possible" versus "protecting IP rights." I think it will become "impossible because it is out of print and I can't get a copy," versus "protecting IP rights" - in which case, I think the only decision a court will be able to come to is "only PI on works in the chain that you own must be avoided." On that one, I still go back to the argument that I can say, "I came up with this independently, and I don't own/haven't seen your stuff. If you think I'm infringing, it's up to you to prove it."
It seems to me that this is the ONLY possible way of interpreting it... unless you want to conclude that there is no such thing as PI created after September of 2000 because I, as someone who published under the OGL back then, have not approved of the material changes to the contract I agreed to back then and so anyone who has PI'd anything after that date has no legal leg to stand on.
--The Sigil
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