Why is the OGL not a contract of that construction?
Because, and this is the point you keep missing: IT DOESN'T ENCOMPASS ANYTHING EXCEPT THE WORK LICENSED. The OGL doesn't say anything about "all use of any content identified in this work as Product Identity from any source".
"Product Identity" is scoped to the work licensed. If the same content comes from some other source, that other source is >not< Product Identity, even if it is exactly the same content.
Anything that comes in from beyond the scope of the licensed work is handled solely by standard copyright and trademark laws. Period.
*smacks head*
Wow. That is a terrific point, Ryan. I can't believe I didn't notice it.
2. The License: This License APPLIES TO ANY OPEN GAME CONTENT that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License. (emphasis by capitalization mine)
So the License itself is only "attached" to Open Game Content. It is not attached to Product Identity. That in and of itself is a fascinating distinction.
Let me see if I am interpreting this correctly...
I create a simple work. The entirety of the work is:
"Section OGC Section PI Section Neither"
And I affix to the entirety of the work the Open Game License. I declare Section OGC as OGC, Section PI as PI, and Section Neither is not declared as either one.
What, exactly, does the Open Game License apply to?
It applies to Open Game Content. Full Stop. The Open Game License does not apply to Product Identity nor to "neither"... because the Open Game License, per section 2 of the OGL, ONLY applies to the Open Game Content. In other words, for the purposes of reading the OGL, this work is effectively the same as:
"Section PI" and "Section Neither" published without the OGL plus
"Section OGC" published under the OGL... because the OGL doesn't "attach" itself to Product Identity.
This seems to go back to the "white-out" theory of PI - where it's a method of "whiting it out" of blocks of Open Game Content... instead of the "list of verboten terms" theory of PI.
Given Section 2 of the OGL, I think Ryan just may be right.
In which case, let us consider two works published under the OGL:
Work #1 - ABCDEFGHIJKLMNOPQRSTUVWXYZ - all of this work is OGC except for vowels, which are PI
Work #2 - ABCDEFGHIJKLMNOPQRSTUVWXYZ - all of this work is OGC except for consonants, which are PI
The OGL for work one grants me a license to use BCDFGHJKLMNPQRSTVWXYZ. The PI designation simply says, in effect, "AEIOU from this work are NOT among the things you can use" - different from "you cannot use the letters AEIOU at all" - because the OGL simply *doesn't apply* to AEIOU, as they're not OGC (see Section 2 of the OGL).
For work 2, of course, the license is for AEIOU - because the OGL *doesn't apply* to the consonants (see Section 2).
Thus, by combining works 1 and 2, we could get a completely licensed, OGC version of the alphabet... using the license to use the consonants from work one and the license to use the vowels from work two.
Again, I think it's that key point in Section 2 of the OGL - that it ONLY applies to Open Game Content - that makes Ryan's interpretation feasible. In fact, it does WONDERS for the whole "unknowingly infringing upon PI argument" as well... because Section 7, interpreted in the context of Section 2, simply says "you can't use someone else's 'Thor'" but you CAN make your own Thor... because that's not using their PI, it's creating your own.
I'm rambling, I just hope the magnitude of that point - that Section 2 indicates that the License only "sticks" to OGC - isn't lost.
--The Sigil
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