<<This means that, in the truly strictest reading of the OGL, you cannot PI
the names of spells, monsters, etc. as you do not own them.
>>
Let's step outside the OGL for an instant. Theoretically you can copyright a collection of uncopyrightable materials, such that even when you cannot copyright a name, you can copyright a unique collection of names. If only a limited number of names are taken from that work, then they can be taken without infringing. If a significant subset of the name collection is used, then you are infringing. Names can also be trademarked. "Spider-Man" is claimed both as a copyrighted character and a mark in trade.
So I think you overstate things here.
If you reprint all the spells in Relics & Rituals with their titles in place without Clark's spell name license then you have committed copyright infringement. Novel collections of otherwise uncopyrightable materials are copyrightable, although they have expressly limited protection.
Back inside the OGL now.
<<Remember, PI does not exist outside the confines of the OGL. I would argue
that PI2 does not exist outside the confines of OGL2. In other words, PI2
does not exist in OGL1 or in OGL3... because even though the majority of
their wording is the same (the Section 15's differ), OGL1 and OGL2 and OGL3
are in fact THREE SEPARATE LICENSES, not different branches of one single
"metalicense" that encompasses OGLn where n=1 through m and m is the total
number of publications produced under the OGL.
>>
I think this is a reasonable construction of the contract, although it could be clearer. I think since a prohibition against using somebody's largely unknown "basement published PI" would be largely unenforceable and would start to disintegrate the plain intent of the license, such a reading would either be invalid, or if valid, would likely trigger the reformation section.
However, it does not answer the question of what happens re: PI contracts down the chain for products in your Section15.
If I'm the 3rd guy to receive something OGC down the chain of new value added parts, am I bound to PI statements from anyone other than my immediate predecessors? If yes, then this is an obnoxious requirement which, unless you are just keeping your fingers crossed successfully, may lead to litigation if you inadvertently use some PI because you don't own all the products in your Section 15 chain. If no, then PI that is not formally protected by trademark or copyright law is really limited in its protections past the first link of the distribution chain.
You address that question as follows:
<<
In other words, assume Publication A re-uses Publication B's OGC by means of
OGLb, and cuts out Publication B's PI entirely. It is permitted to do so
under the terms of the OGLb (with PI designation PIb). Publication A must
offer that content from Publication B as Open Game Content in its own work;
however, Publication A offers it under the terms of OGLa (with PI
designation PIa). If Publisher C comes along and uses Publication A as a
source work, and creates OGC that is identical to Publication B's PIb, tough
cookies.
>>
Here's where I'm not sure I agree. The OGL specifically notes that there is a licensee who, in turn, may sublicense out things:
"All sublicenses shall survive the termination of this License."
OK, but the question becomes, does the licensee get to license out the stuff with no strings attached or does he gain the right to sub-license stuff but only with the PI strings still attached?
If A can only make a grant of B's OGC to C if C also abides by B's PI declaration then C cannot blythely ignore B's PI declaration simply because he's the 3rd link in the chain.
As I've been saying, either non-copyrightable and non-trademarkable PI is only valid for one generation, or else you are responsible for all PI declarations in Section 15.
I think neither of those would be utterly unenforceable terms of a license (although each is obnoxious in its own way) and neither would trigger reformation (like a reading where you could be sued for using somebody's "basement distributed" PI -- which would almost definitely trigger reformation).
<<However, I could be wrong - and the OGL, rather than being an agreement
between myself and WotC (assuming I use only the SRD as a source) is a
metalicense and in using the SRD I also enter into an agreement with Green
Ronin, SSS, Bastion Press, and every single person who has ever or will ever
release an OGL book.>>
In some ways it _is_ a metalicense -- or at least a "parent" object from which "child copies" are made -- we are agreeing to individual sublicenses made as copies of a previous generation of the license:
"4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."
and
"All sublicenses shall survive the termination of this License."
So, a duplicate of the original LICENSE (capital "L") is granted to you as a new "license" (lowercase "L") by the Contributors.
This implies that there is somehow a master LICENSE from which duplicate sub-licenses are created. However, note that the sub-license is granted "with the exact terms of" the original license. And similarly each child license must obey the exact restrictions of any parent license. Now, if "terms" includes on the written language AND you make an agreement ONLY with the final contributor (I am not convinced, that you are making an agreement ONLY with the final sublicensor in the chain), then PI protections die off immediately by the 3rd generation unless they are protected by other laws. If however, "terms" includes the all the conditions of the initial agreement, then those terms would be passed along to every subsequent sub-license, and PI declaration would survive as the sub-license can have new terms for the agreement plus the exact terms of any previous iteration. Note that this last situation also applies even if "terms" means only the verbatim language of the license itself (as "exact terms" seems to imply -- otherwise future iterations wouldn't be "exact" copies) so long as you are making the new license with ALL the contributors via a sublicensor proxy speaking for them, instead of merely licensing solely with the final sublicensor.
The question becomes are you making an agreement ONLY with the guy immediately ahead of you in line or are you making an agreement with everyone in your Section 15 individually (via their sublicensor)?
Note that is says that all the Contributors are giving you a single license:
"the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license"
This sorta sounds like everyone listed in your Section 15 is getting together in a room and issuing to you, as a group, a single new license, but that they are allowing you to deal with only one of them (the last guy to date in the chain) to act as their pre-approved proxy vote. But note it is not "the last Contributor" offering you a license, but "the Contributors" as a whole, for what it's worth. If all of them are collectively offering you a license, then you might have to meet each participants PI publishing restrictions to use that Contributor's OGC.
Maybe that's reading too much into too little. But that sounds like what it says.
If so, this would be a real bear to use with 100% accuracy. Only bigger companies who own copies of all the publications in question could safely use OGC from anything other than a primary source.
I don't feel that this is necessarily the intent of what the license had in mind, but it may be a reasonable interpretation. I'm certain others will comment on whether it is or isn't.
Lee
