<<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. >
PI very clearly extends beyond merely copyrightable materials. Some trademarks, for example, cannot be readily copyrighted. "Microsoft", by itself, outside of a logo, is not capable of being copyrighted, but it can be trademarked. Can you explain your reasoning here?
I would say that while you normally cannot claim copyright over certain things, it is not an unreasonable thing in a contract to say, "I'll loosen up my copyright control if you refuse to use things I can't normally protect with copyright law" (concepts, themes, etc.).
However, the license also notes that the Contributors are "copyright and/or trademark holders".
I do NOT read "copyright holder" as saying "there is nothing in the work that is not copyrighted". I read it as saying that the work as a whole is copyrighted or trademarked. After all every written work contains something that is not copyrightable (even if it is a single word, picked off a page).
Can you not say, "I own this block of text, but I cede to you the authority to use it, if, and only if, you refuse to use the following concepts, names, etc. in your own publications involving my OGC? If you refuse to accept this extension of my normal protections on uncopyrightable materials, then I refuse to cede to you the copyrighted text."
I think that's fundamentally what the purpose of the OGL is -- to allow for sharing, but also to expand IP protections for things which IP law does not currently protect, in a quid pro quo exchange.
I see no reason that the quid pro quo has to involve solely copyrightable materials... It clearly involves trademarks, etc.
One does wonder at how far PI can reach, if copyright is not a limiting factor in PI declarations... "Concepts", "formatting", and "language" are so broad that they can encompass an enormous range of things.
Lee
