<<It is generally agreed, that the definitions of PI and OGC in the WotC
OGL are (1) what *can be* PI/OGC, not necessarily what is [except for
the "anything already declared OGC" part], and (2) exemplary, not
definitive.>>
I agree. One thing that struck me, after I sent a message offlist was this. If the only type of PI which may be declared voluntarily are some handful of trademarks, then all the other stuff on the PI list would be non-voluntary. Anything that automatically occurs 100% of the time is, by definition, not voluntary. Thus all the stuff on the eligibility list (except certain types of trademarks) would ALWAYS be PI (since it would not be a declaration mechanism that determines what is or is not PI, but a list which is always true). You could then never declare that stuff as OGC without violating the license since some things would be both OGC and PI (and they are exclusive of each other). I have always held that the only way to read the clauses saying OGC and PI are exclusive of each other and the one line that says PI may appear in OGC is to assume the word "in" works like "a boat is in the ocean" where "in" means surrounded by (i.e., the boat is not the ocean and the ocean is not the boat, but the boat is in the ocean -- any other reading violates the exclusivity clauses). The only way that most of those things on the PI list can be declared OGC without being also PI is if there is a wholly volitional process which is put into place to separate those two as the owner of the copyrights and trademarks sees fit.
Now, I will, 100% admit, that the language of the PI section is vague, at best, and is subject to Chris' interpretation when taken by itself. It just is. In the context of the whole license, however, it seems either that Chris' interpretation violates other parts of the license as well as possibly violating the intent of the license.
So, either Chris is wrong, or, if the rules of legal construction of antecedents in a semicolon laden list say not that it is vague but that there is one and only one way to read the sentence, then I yield quite willingly to Chris' superior grammatical skills and declare that the license doesn't work as intended.
<<
Ryan, the guy behind the license, has said
as much. That is certainly how most publishers are using it.
>>
Ryan's opinions matter less than industry usage. If WotC got in a scrap over a vague usage and the guy on the other side disagreed with them, contract construction says that vague sections are construed AGAINST the drafting party, particularly for contracts of adhesion. If Ryan's opinion is consistent with WotC's opinion, then contrary opinions would, unfortunately, hold more weight on that basis alone. However, industry usage is a public policy concern and a means of adjudicating intent of the signatories (I use "signatories" loosely hear to mean Contributors) to a contract.
<<Read literally, it is
self-contradictory, vague, and impossible to abide by as a result.>>
I think there are ways to read it literally and still do away with MANY of the self-contradictory parts (see my reading above regarding OGC != PI and yet PI can be IN OGC). Rules of contractual construction say that you have to pick readings when considering vague sections that give effect to all the parts of the contract, if possible, without rendering them null and void. I think in that light, then a lot of the self-contradictory parts go away. Not all the vague parts go away, though.
<<
It is, AFAIK, an unanswered question what happens if>>
you get into court and both parties to a contract agree to treat a
contract as saying one thing, when it actually says another.
If both parties agree to interpretations that go against the express language of the license their opinions _might_be_ largely ignored unless they are the only parties to a contract. If their interpretations go against industry standards but act as a point of agreement to help resolve the dispute between those two parties, then the adjudicating court can issue an unpublished decision (which has no precedential value at the appellate level) so that future courts can reconsider the issue anew.
IANAL
YMMV
Lee
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