<<Actually, it seems to me that if you take this tack (reconciling the
two parts of clause 1(d) by asserting that the license doesn't apply
to "regular" closed content), you're where Alec ended up a year or
two ago: the license only applies to OGC, and thus can only apply to
PI if PI is a subset of OGC. Or maybe it doesn't apply to PI at all,
which would be silly, but logically consistent with clause 1(d) (if
logically inconsistent with several other clauses and sections).
>>
The part of the license that says it only applies to OGC is sort of confusing. But that doesn't mean that PI is somehow OGC. Note that the license also restricts your rights to engage in advertising and marketing of your product. Those ads may not themselves be directly covered by the license. If you aren't using somebody else's trademarks, etc. you may not need the OGL at all to advertise your product. In that case, your advertisement clearly isn't OGC or PI. Yet your advertisements are restricted. If the restrictions on use of PI meant that PI was a subset of OGC. Then your ads would also be a subset of OGC by that logic (because the license restricts them).
The license says: "If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content." Theoretically, this is telling us that you could slap this license on a work, and declare 100% of it Product Identity. There's nothing stopping you from doing this. And the "_IF_ you distribute OGC" can be inferred to allow you to apply the license to a work that doesn't have OGC in it. While OGC and PI can be defined relative to each other, they also can be defined independently of each other, and one can exist without the other. What's the advantages of distributing a 100% PI work under the license? Potentially to sublicense it to somebody else so that they don't have to jump through hoops of declaring their work a compilation to end up licensing art, etc. from you.
The license envisions this type of usage. It specifically notes that the use of Product Identity in areas of Open Content does not constitute a challenge to the ownership of the Product Identity. Well, that wouldn't even be possible unless you were using somebody else's IP. The license also says that PI can only be declared as such by the owner of the PI. The license also says that PI can be separately sublicensed.
So, woodelf can release a piece of art as 100% PI under the OGL. Then he can sublicense it to me. Then I can use it without trying to come up with some complex definition of what is and is not the covered work in a compilation. I can just drop his artwork in my work, note that it is woodelf's PI, it was declared as PI by woodelf, and that he has licensed it to me, and that my use of it does not constitute a challenge of his ownership.
Note also that the phrase "Product Identity _in_ Open Content" does not mean that Product Identity is some kind of OGC. The definition of PI does _not_ depend on there being any OGC. The _in_ is the same type of _in_ that's in the following sentences:
"Islands exist _in_ the ocean. Ocean surrounds the islands. Islands are not ocean. The ocean is not an island."
Next, consider this OGL line: "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."
Now, consider a hypothetical license. Consider in our hypothetical license that you were to mark the entire text the license covered in other yellow highlighter or green highlighter. The license could contain all three of the following sentences:
* the license applies to the entire work that it covers
* the license applies to the parts of the work it covers marked in yellow
* the license applies to the parts of the work it covers marked in green
The statement that "the license applies to the parts of the work it covers marked in yellow" does NOT mean that it doesn't cover more.
Why? Because that sentence is missing the key word "only". The sentence doesn't say that ONLY yellow stuff is covered. Therefore it is, in its strictist form, only saying one thing that is affected by the license.
The statement that, "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," also does not say that it applies ONLY to OGC.
Now, let's play devil's advocate and assume that "applies" is broader somehow than a reference to the grant or as a reference to only one part of the coverage...
The question arises as to what "applies" means. And that's not entirely clear. Since the license is nominally a license to use copyrighted text, if "applies" is related to the scope of the grant, then it simply means you are only being granted usage rights over OGC.
"Applies" may also imply that any other restrictions in the license aren't applied directly, but only insofar as you want to license the OGC.
Check this out:
"You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark."
If you slap the license on a work and distribute no OGC in that work, (and you don't have to, since this is like the second line that implies that OGC may or may not be present in the work -- and there might not be any OGC if the covered work is 100% OGC), then you are in no way limited by this compatibility and co-adaptability statements regarding that particular work since it contains no OGC at all.
<<
In which case i can use PI, so long as i use it outside of the
portions of my work defined as OGC or PI. >>
Hmmm... Gee. Remember what I was talking about when I said that there _might_ be some interesting readings of the restrictions if you covered a single work in a compilation that was otherwise uncovered?
If the "you may not use PI" is scoped to the covered work only (and this may be worth chatting about in another thread woodelf) then if the PI isn't a trademark then the PI restrictions vaporize outside of the covered work.
This would allow you to refer to the PI in a review in a magazine for instance. Articles A & B are in a magazine. Article B is on "Lee Valentine's Magic Carpet", my new magic item, and only article B is an OGL covered work.
Even if I declare the whole phrase as PI you can discuss the item in article A if article A is not covered by the OGL. You can't market with my name, but you can refer to it _and_ my item, even if I declared both as PI.
Strangely, now, you can also indicate compatibility with PI provided that the PI isn't a trademark or registered trademark.
If the compilation is deemed to be a separate work from the works it contains, then one starts wondering whether you could indicate compatibility on your compilation's cover with things that are PI'd but are not trademarks. Otherwise, could you just talk about PI in article A and not with regards to the compilation as a whole?
Hmmm... Makes one wonder doesn't.
Now go back and look at your favorite trademark licenses for use with the OGL and see if they are scoped to the covered work only. Then go, "hmm".
Setting aside the notion of which standards of "ownership" apply to PI. If the PI is not copyrighted, trademarked, or patented, then even if somebody could, by some odd definition of ownership, claim PI on something that's not copyrighted, trademarked, or patented that exists in our theoretical article B above, that same item would have a big fat zero protected status in article A if article A isn't covered.
Now, I don't know how all this plays out. I don't know at all, because I haven't fully thought about it. And it might take an IP lawyer with experience in licensing sub-works within compilations to grasp the scope of the can of worms I was hinting at and which woodelf just raised.
But that's why it's an interest situation if you apply the license to cover sub-works in a compilation.
All sorts of chaos gets set into motion.
<< (The trademark
>
compatibility/coadaptability restriction is still in force, because
i'm forbidden from using it "in conjuction with", not merely in, a
covered work).>
And this is true only depending on the definition of "applies" in that hairy section you pointed out earlier, Woodelf. But yes, probably what you said would be true.
Lee
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