<<Firstly I might have over stretched some points in the past. I do not think that PI in non published (or limited distribution) titles is an issue, but once a product has been fully publihsed then the PI within it needs to be protected.
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A) If your strict reading of the document is correct, it won't matter if it's sitting in somebody's basement, PI is PI is PI.
B1) If a strict, but not as strict reading is invoked, that the author must avoid all PI that a similarly situated reasonable person would be aware of, then this would hedge out the basement product, but it might also protect the user against inadvertently blundering into somebody else's PI by creating something independently. Just because John Doe has it on a web page where the counter shows he has had 10 hits in a year, doesn't mean that almost any similarly situated, reasonable person would have a clue about Doe's PI. This would stop you from using PI in a book you purchased, even if you didn't section 15 the work, but would render irrelevant the fact that your local game store has a copy of some obscure 3rd party work buried on its shelves.
B2) The next layer of reading would expect people to be aware of the PI declarations of all the products in their section 15, but not any other PI in the world, no matter how prominent it may be. This is on an equal footing to B1 in terms of annoyance factor, in that you would be expected to be aware of things, even if you don't own a copy, however there's a limited list of the stuff you have to track down -- you are assumed not to have to be familiar with anything you didn't section 15. If you can't get access to the PI declarations under this standard -- tough, don't use the OGC.
D) The lowest level of PI protection would be to guard against solely the person deriving something directly from PI in an OGL covered product -- if I add your product name, from your own Section 15 into mine, then I have to abide by your PI declaration. This has a weakness in the "concepts" protection of PI. This would allow party A to extract OGC from Mutants & Masterminds and pass it on to B, who combines it with Hero Points and character points from Deeds Not Words, and on to C who then adjusts the point costs using the OGC "power components" portion of Mutants & Masterminds. This process would recreate something darned similar to M&M, but without the trademarks and art. It thus clearly would have little in the way of concept protection, or of protection for individual names (although it would protect collections of names).
Each of these in order is much more broadly enforceable as an IP sharing contract, but each has less and less protection for PI that doesn't happen to already be protected under copyright, trademark, or patent law (such as untrademarked names, concepts, etc.).
Take those categories to your lawyer and see:
1) which he thinks applies, as the license is currently worded
2) which he thinks would be applied by a court if the Reformation Section was invoked to protect the intent of the license as an IP sharing construct
Lee
