<<You seem insistent on using this term "ownership" for some reason. It
is really not germane to this conversation. Two parties can agree to
all sorts of mutual terms regarding things that are not "owned" by
either. "Ownership" of those things is not required.
>>
Ownership of PI is required by the OGL. PI must be "clearly identified as Product identity by the _owner_ of the Product Identity". It's in the license, Ryan. If you aren't the owner of the item in question then I'm guessing you can't identify something as PI since you aren't the person who needs to clearly identify the PI.
If it's not clearly identified by the owner of the PI as PI, then it is not PI. Done deal.
<<The OGL licenses just one thing that is "owned" by anybody: The
copyright rights in Open Game Content. >>
And it prohibits (rather than licenses) use of PI which is _owned_. See the above quote.
If ownership of PI is defined as "ownership of a trademark or copyrighted source material declared as PI" then the license is interpreted one way. If PI goes beyond copyright and trademark law, then it enters an unknown space where the law doesn't define ownership of those types of items and for which the OGL give us no standards for determining ownership of PI (just implied ownership standards of OGC).
<<
So what? Your made up contract isn't the OGL. Debating its merits or enforceability is meaningless.
>>
No I created something to show you that if ownership is not an issue, then nothing in the OGL prevents me from establishing product identity as being a public domain character, for instance.
Now, if the only types of PI which are protectable are things to which you already have claims over from other areas of copyright law or trademark law, the concepts would never be defensible. Themes: most moral themes, etc. can't be copyrighted or trademarked. This reading would require us to read the OGL so as to effectively provide no protection (outside of pre-existing legal protections) to many items listed as PI.
The would be valid but of no value about 100% of the time. Embracing that viewpoint as the only viewpoint would seem to frustrate the intent of the license to provide protected status to those categories of PI.
Lee
