I'm curious about the place of the older TSR/WoTC products in this Open Gaming thing. Obviously, they're not going to go to the hassle of classifying everything specifically as open game content, but can they claim copyright on, say, the substats used in Player's Option?
WOTC claims copyright on everything it has published. The role of the older stuff is that you can't use it, because it hasn't been published under the OGL.
Also, the blurry line between game content and product identity is troubling me. I'm no lawyer, and while I THINK I know where the line falls, I really can't be sure. And then there are the hundreds of things which have been adopted by TSR/WoTC from fiction, mythology, real life, etc. Can this sort of thing be interpreted as Product Identity? For example, many of the deities used throughout TSR's older work are directly or indirectly copied from mythology. I'm sure we could still use the names, etc, but what of the TSR - manufactured mechanics such as bonuses and granted powers of specialty priesthoods, and so on? Can we begin to include these in publicly available OGC on the premise that they're now "obsolete", or must we tweak them a little around the edges, claim the adaptation as your own invention and release it that way?
Product Identity is not some kind of new intellectual property right that WOTC is claiming out of thin air. It's simply a term within a license that has meaning only to people who produce work under the license. WOTC (or any other publisher) could come out with a D20 Greek Gods product and claim Apollo as Product Identity. It wouldn't stop other people from creating their own version of Apollo based on the classic Greek myths, but it would prevent them from copying the other publisher's Apollo in full.
There's no such thing as "obsolete" D&D rules and mechanics you can adapt for your own OGL works. Any homebaked/house rules system that makes heavy use of D&D's old products is probably not suitable at all to OGL/D20. Most products like that tend to be fan-based, non-professional, Web only, and rely on the old, no-longer-online TSR/WOTC Internet Policy as the basis for their publication.
Rogers Cadenhead
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http://www.cadenhead.org
