I would reverse your argument, if this was not the case then the who OGL really does not have a leg to stand on as all anyone would have to claim is that they where not aware of ABC publication and hence they are free to use the same PI that had been declared in that book.
The problem is that the WotC OGL is based on a model of sharing. The whole point of "copylefts" is to give stuff away. I just don't think the model well supports not giving stuff away. That is, stuff that is closed isn't a problem, because it's not viral. But trying to have viral closed content just doesn't work, IMHO. People want to use your open content, and can only do so by looking at your open content, so they know about the license and the content. Why would someone look around for content they can't use? Copyright mostly avoids this problem by dealing with larger units: the odds of you exactly duplicating a chapter of a book (or even a paragraph) are extremely slim, so you don't need to go out and read every novel with a similar setting/theme just to be sure that you haven't accidentally duplicated a chunk of them. You can't copyright a short bit, probably in part because it'd be too easy to accidentally duplicate it, implying that establishing creative authority is too difficult. Trademark mostly avoids the problem by having registration. And, since there is a cost to trademarks, and a content requirement (you can't trademark just anything--you have to be using it for a specific purpose), that helps limit frivolous grabs.
PI has neither of these safeguards to make it practical. You can PI short phrases, even single words. There is no requirement that the PI be unique--merely not previously released as OGC. Nobody is checking up on PI to watch out for duplicate claims, unenforceable claims, or any other problems with the PI itself. There is no cost to claiming PI, and there is even an incentive to do so (designating terms PI is easier than writing so that the terms never appear in OGC, in many cases). And people don't have any incentive to look for PI, because they're not trying to reuse PI.
This is just the way it is, and don't forget that you are not limiting yourself to only PI'ed material. Whenever you publish anything you will need to make sure that you are not treading on anyone elses toes (i.e. you need to make sure that you are not using someones trademark from outside the RPG industry - they won't give yo 30 days to correct, they will just sue!)
Actually, more than likely, they won't. Use of someone else's trademark, provided it is to identify their product/company, properly cited, and not libelous, is accepted practice. And, the odds are that anyone outside the RPG industry will not be aware of the additional restrictions on trademark that the WotC OGL includes, so they won't know that it's a problem.
This is one of the central issues that we as an industry will need to address if this market is to continue to grow. Companies will stop investing in the market if they do not believe they can protect their IP!
Just don't put your IP in chunks of OGC, and you have no need to even use PI. It's not really that hard (as evidenced by products that have no PI designated, or only designate things like the book title, game company, etc.).
Under normal cercumstances I would agree, but WotC has created this thing clled PI that works very similarly to trademarks. Hence we should look to trademark law on how we think it would be dealt with. If you created 'Bobby Sue McGill' in a d20 module and the PI'ed it and then I dod the same then you have every right to sure me! That is what PI is for! It imposes extra restrictions on all of us.
Alternate interpretation: the PI clause is broken, and would be thrown out by a court. This doesn't undermine the license, because clause 14 explicitly states that the license need only be changed to the extent needed to comply with laws, rather than being rendered unenforceable. And since the license does not require PI to function (it only really requires OGC to function), it would continue. And be a better license, IMHO, without PI.
I do not believe that the 'unrelated' argument would wash! The argument comes down to could one affect the other and in this small market place the answer is YES!!!
Not necessarily. Let's say i decide to do a D20 product. I'm not a big fan of D20 as a GM, so i don't own any D20 books (actually, that's not quite true: i own Dynasties & Demagogues and Slayers Guide to Gnolls, but we'll assume for sake of this argument that none of them have relevant content to my project). I have read a few, but only a couple in sufficient detail to get more than general concepts. So my D20 product is going to be based on what comes out of my head and freely-available OGC (i.e., the D20SRD, BESMD20 SRD, NBoFeats, etc.). I'm not going to go out of my way to find out about PI in print products, though i will not use it if i know about it. If i have to, then the D20 game market becomes an unnavigable minefield. You may find the proposition that PI is unenforceable (because anybody who hasn't read your product can use it) unpalatable, but that is simply avoided: don't PI important bits, make them closed content. Or trademark them. And if they aren't sufficiently unique to warrant trademark, or be protectable with copyright, then you should just accept that people may duplicate them, inadvertantly or advertantly. Your proposition is unworkable: look at the effort involved in a trademark search these days, and most of those are prominently displayed, *and* there's even a central repository for many.
In fact, i refuse to reuse OGC from products that mix in lots of PI. One, i'm reusing to save effort, and if i have to rework to remove PI, i may as well just do it myself. Two, i think it undermines the spirit of open content, so i'll simply not reuse it, thus propagating the PI-free content. Since the PI clause is here whether i like it or not, i'll simply attempt to use market forces to remove its effectiveness, by discouraging the propagation of OGC with PI, and encouraging the propagation of OGC without PI. In my case, that even extends to not using the quite good monsters from the SSS stuff, with it's free-reuse-of-PI license built right in.
-- woodelf <*> [EMAIL PROTECTED] http://webpages.charter.net/woodelph/
William Safire's Rules for Writers: Don't use no double negatives. _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
