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Is there some legal input int owhether there is an implicit grant of re-use? I have always gone by the rule that unless a legal document states it in black and white it is not there!
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Implicit intent of both contracting parties can be construed by a court if the face of the contract is unclear in some way.
If I contract with you to mow my lawn it may not be there in black and white that my intent is that you do a good job and don't mow down all my flowers and trees in the lawn. In spite of my having not said it, a court may reasonably infer that my intent was that you conduct your lawn mowing in such a fashion that a reasonable person might not consider it destruction of property, even if your definition of "lawn mowing" includes the belief that you should trim every plant in the yard down to a height of 1 inch.
I will not debate that we are in need of a revision of the OGL that clarifies a few points of contention. I have said that often. But what cannot be said is that if intent is not spelled out that it will be utterly ignored by the court -- where the court finds that the license is unclear it will seek to find clarity in context, without per se "reading in" anything that wasn't intended to be there. Lacking that, the court may try to uphold as much of the license as possible while trying not to rewrite the license from scratch. In doing so, it may hold that some provisions are not able to be enforced and strike them or uphold only part of those provisions based on the reformation/severability clause of the OGL.
In general, a court will not "read in" a lot into a contract, but may try to determine intent to provide contextual clarity.
Then again, IANAL, so maybe I'm incorrect here, but this was my understanding of contract interpretation.
<<What is stopping someone from getting hold of the section 15s from the most popular d20 products and simply including them in their section 15 in order to gain a competitive advantage (small advantage I agree but possibly significant).
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What competitive advantage? As Clark as noted, except for the OGC junkies and collectors of the world, most readers do not do a line-by-line analysis of the OGL section 15 declaration to determine if they should bother buying a product.
I mean, theoretically you could derive the notion of a Feat not only from the SRD, but from every single piece of OGC out there that uses Feats and calls them "Feats". Theoretically you could then Section 15 dozens and dozens of products rather pointlessly. But it's only gonna pad out your section 15 driving up your printing costs slightly and dissuading other publishers from using any OGC in your products.
There are two types of significance of note: statistical and practical. Even if there is some statistically significant advantage (e.g., 1 out every 10,000 customers actually buys based on the fact that their favorite publishers are listed in Section 15), it is probably not practically significant.
I guess you could determine that if you had some sections that were largely derivative, but wanted to protect some of your verbatim expression, but couldn't figure out how to clearly handle the PI vs. OGC declarations to allow you to protect your verbatim expression without making it unclear what the OGC was, then you could just declare everything OGC and then include a really obnoxiously long Section 15 to really drive people away from using your OGC at all. If you are willing to pay for the printing costs, I can practically guarantee that if you have a 6 page long section 15 that most vendors won't use any of your verbatim expression. Is that how you define an "advantage"? Maybe. Not anything I'd define as an "advantage", though.
<<They can only come down hard on violators, what if there has been no violation? Simply the rules bent as far as they can go?>
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The problem with intentionally bending rules as far as they can go is that it comes at a cost. When the rules are bent severely a court may not be able to resolve a case as a matter of pure law and may have to rely on a fact-finding expedition to get to the bottom of the claims. That may mean full discovery and trial process. _IF_ you are willing to go to the mat against Hasbro & others, then feel free to bend the rules.
I often make points on the list to try to evoke feedback to explore the boundaries of the OGL myself. But there's a big difference between exploring the theoretical boundaries of the OGL and trying to bend the OGL in half because you think you can get away with it. The former may subject you to debates and inquiries from your peers, but the latter will likely drive you into court if you annoy anyone with deep pockets and an interest in forcing you out of the "gray areas" of the license.
The problem with this fact is that big companies can sometimes drive you out of the "gray areas" even when they may not win in court in the end. But so long as their suit is not absolutely frivolous, then you may have to go to the mat to protect your interests.
So, I'd suggest entering these gray areas only if you think you have a very substantial chance of winning a court case, and then only if you think that your "gray area" interpretations really aren't causing any signficant market damage to anyone. Most people will probably let you get away with "gray areas" in a license if it isn't harming them significantly, because it'll cost them more to go to court than it's worth to them. That's still not a foolproof defense, though.
IANAL
YMMV (and probably does)
Lee
