<<Thank you for your very long and thorough thoughts on the subject, they seem very clear and you obviously have a clear idea about what you are talking about. I will take your advice and discuss this with my legal council.
>>
Specifically you should ask him about how much you need to avoid printing things that are other people's PI that hasn't made known to you as PI. If your interpretation is correct -- I recommend one non-lawyerly piece of advice: avoid the OGL like the black plague for anything other than PDF publications, because if somebody can force a stock recall based on PI they haven't even made generally known to the public (some basement publication handed off to their friend), then the license could create more lawsuits than it protects against.
<<
Firstly I looked at the intent of the OGL. It does two things, it provides a framework that allows one publisher to re-use already created material without fear of recrimination. It also allows the same publisher to protect some of his creations and prevent others from using it (this is PI). The second part is vital because we all know that the real value of what we do lies in the IP that we create (i.e. the worlds, the characters etc.) and we need a way to prevent others from stealing them.
>>
Keeping in mind that, if you are correct, if you write up something in your basement and PI it, and I derive something from the SRD and declare it all OGC:
a) I get something from WotC in exchange for me not claiming compatibility with their trademarks
b) you get something from me in exchange for nothing from you -- you get your PI protected and I get nothing from
you for my product
Now arguably we are engaged in mutual exchange -- you may be saying that by signing on to the license that we
automatically exchange an agreement not to use each other's PI even if we don't use an iota of each other's OGC.
Fine, but that seems to rail against the intent of the license and to create a lack of a legal safe harbor, rather than fomenting one.
If that's the way the license works (and I think a strict reading which punts all contractual intent allows for that reading, but a looser reading with contractual intent in mind doesn't) then the license basically is useless, and the first court case to come along would probably trigger the Reformation Section.
<<
However there is a third situation. Company B knows of Company A's material and really likes the place names and character names that Company A has created but does not like any of the new rules. So Company B does not need to include A in their section 15 but they still go ahead and use all the PI that Company A invented.
>>
And if this were true, then if any of that PI were copyrightable or trademarked then you'd have those protections still even if there were no quid pro quo.
<<So my argument rests on what I believe to be the intent of the OGL. Namely that PI is protected. It needs to be, without that protection no publisher will ever use the OGL to publish anything that contains valuable IP.>
>
I don't know if I agree with your conclusions, Mike, but I'll say this:
a) either the PI protections in the license are weak, and people have to largely rely on trademark & copyright law rather than the OGL for protection
b) or they are overly strong and this will create problems of their own
I think that a strict reading of the contract could allow for some of your interpretations (but not about the OGL being the same as trademark law), but that if you are correct, it would likely simply trigger the reformation clause, as it would be practically impossible to enforce the terms of the contract without a potential mountain of litigation by people who want their "basement produced PI" protected.
Lee
