<<If the About The Author sidebar is in, say, an introduction that
Publisher B decides neither to release as Open Content nor to declare
PI, and it that means that it's then outside the Covered Work and so
normal copyright law would hold sway, sure I could mention the book
in a factual context.
But if the About The Author material is closed content but that's
still considered to be a part of the Covered Work, then I'd run into
difficulties.
>>
And there is a man who understand the theory I've proposed. I frequently play devil's advocate, not to scrap, but to rigorously test whether things widely held as true really are true, whether things widely held as unambiguous really are unambiguous.
However, there is no devil I'm advocating for here. My opinion is straight out that the license seems to me (rightly or wrongly) say that it applies to a covered work and that 100% of that covered work must be OGC or PI and nothing else, but there can be stuff outside the covered work that's still between the same two covers, that's potentially non-OGC and non-PI content.
Spike has captured one of the implications of this reading dead on. There are others. Somebody with better vision and more experience with the d20 STL might want to give this a look over.
Now the really weird question, and I'd probably leave this to the IP lawyers, since the answer is not going to be had by looking at the plain language of the license: can the cover of an OGL covered work be declared a separate work (since it will consist of artwork, etc. that could render it a separate work suitable for publishing in an ad without the rest of the book in tow)?
If so, then if the OGL can cover just one part of a compilation, then you could hit the guts of a book with OGL coverage, leave the cover outside the scope of the license, and then claim compatibility with otherwise PI'd elements that are not trademarked.
Hmmm... Weird but true. Would I do it? Probably not. Could one do it? That's a different question.
That's why I think the "in conjunction with" and "marketing" prohibitions are stronger forms of protection that the PI protection.
BTW -- this thread could help shed some light on the "white out" vs. "forbidden terms" debate. Assuming arguendo that the license provide some measure of "forbidden terms" protection, if those terms weren't copyrighted or trademarked you could ignore the PI declaration entirely by putting a single section outside of the OGL within your book, note specifically that this is a compilation (maybe even publish that section for free on your website to make it clear that it is a stand-alone work). In that section you could have a field day talking about things that are PI'd but which aren't otherwise protectable under normal IP law (unpatented rules that you carefully carve away from the other guy's verbatim _expression_, phrases the other guy probably shouldn't be able to PI anyway but did anyway, etc.).
So, arguendo, even if the license provides a modicum of "forbidden terms" protection for PI that can be largely thwarted for things that aren't ownable under normal IP law standards, with the exception that certain references to OGL authors and their works may be protected against by some of the more targeted restrictions of the license.
Kinda makes you wonder what scope "in conjunction with" has, doesn't it?
On an only vaguely related topic (loopholes)....
Want a real mind blower? You read a study and it tells you that the advertising you do during the first two months before a product's release is some of the most valuable advertising around.
You might release a product under the OGL. You advertise the heck out of it as compatible with X trademark, by Y author, and Z book within the series. You _very_ carefully make sure the reader knows that you are not in any way affiliated with the author, the marks, etc., since you are relying on fair use.
Until the instant you publish the book under the OGL, you aren't bound by the OGL's restrictions re: your work. Nor does the OGL limit you to publishing if you have, prior to applying it, engaged in activity elsewhere that might be a licensing violation if the conduct had occurred after the application of the OGL to your product. You print and publish your book during the month after the last ad runs. You have now, during the term since the license applied to your product, never marketed in conjunction with trademarks or OGL authors names.
Grab a lawyer if you do something silly like this, as this is likely to start a cat fight. And be ready to see whether people praise you or, more likely, brand you as an industry pariah.
These types of wild loopholes could plague any license, so it's not surprising that the OGL has some madness built into it, really.
I just wish we could get WotC to adopt a new revision of the license. I don't know if people would switch to it (since it would be largely voluntary), but a guy can keep on hoping.
Lee
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