1e.) "Product Identity" means product and product line names, logos and identifying marks
[...snip]
Of particular note here is that most of the items on this list - notably names of characters, et al - normally fall under the category of "Uncopyrightable Material." However, at the end of the day, Product Identity is "whatever is identified as Product Identity by the owner" - which in and of itself could lead to the argument that since you cannot copyright names, you cannot be the copyright owner of a name. Since you cannot be the copyright owner of a name, you cannot identify it as Product Identity, as you are not its owner.
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.
However, when we consider the intent of the OGL itself, especially in light of the fact that it specifically calls out names of creatures, etc. as that which may be PI'd, it stands to reason that the express intent of the Open Game License is allow you to protect things that copyright law normally does not allow you to protect. If we do not view things in this light, it will trigger the reformation clause to wipe out from this list all things that cannot be copyrighted - including names of creatures, characters, etc.
While your reading seems reasonable, i disagree with this part of it: IMHO, since it can't be copyrighted, despite clause 1e of the WotC OGL, it can't be considered PI. IMHO, those things in the PI definition that cannot be protected outside of the WotC OGL are likewise not protectable with it, and should it ever be challenged will require reformation of the license. As far as i'm concerned, PI just extends the protections of copyright into OGC, and PI that is not also OGC is meaningless (based on Alex's reasoning here on the list--until i hear an actual lawyer knock a hole in it). Of course, looking at where IP law in general has been going the last couple of decades, i must sadly conclude that, in the real world, you're probably right.
Since you cannot Use Product Identity at all, it doesn't matter what "flavor" of PI it is (C&P, B&P, DBP, or DCP) - as part of the OGL, you agree not to use it. That leaves us with only DB to consider.
Which is what has worried me from day one: that the license's definition of PI might be ruled valid /in toto/, and used as the basis to extend the breadth of IP in detrimental ways.
Thus, when I agree to the terms of OGL1, which includes PI designation PI1, I agree only to PI designation PI1. That OGL2 and OGL3 happen to have PI2 and PI3 is immaterial - I did not agree to OGL2 and OGL3, and hence do not have to respect PI2 and PI3.
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.
You said what i was trying to say much more clearly. I concur (not that i'm a lawyer, but...): The only PI that the WotC OGL even "knows about" is that in the work(s) being reused.
The consequence of this IS dangerous for protections provided by Product Identity designations... it means that there is no upstream accountability.
You say "dangerous" i say "wonderful". ;-)
What does this interpretation mean? It means that, while second-generation products must respect your first-generation PI, third-generation products not only must not, but in all likelihood CANNOT (because the second-generation products couldn't include your PI unless they got a separate agreement, and thus your PI designation will not show up in second generation products - meaning that the third generation products will be unencumbered by your PI designation).
Is this completely disastrous? Not necessarily - it gives you a "limited time" to enjoy the fruits of your PI (while all the second generation products are being created), but does not guarantee you a perpetual monopoly on your PI (because your monopoly disappears once the third generation appears).
Personally, i hope your interpretation is correct (rather than the "all PI in cited [in Sec.15] works must be respected" that i suspect)--PI is too broad and too powerful, and if it can't go away, then the less it limits creation and reuse, the better. Far from disastrous, i think it's a good thing.
Yes, this approach waters down the value of PI declarations ENORMOUSLY... perhaps to the point of not really being worth the effort.
Rather than "waters down the value" i prefer to think of it as "demonstrates the true value"--and if they become not worth the effort, i'll be happy.
--
woodelf <*>
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