<<>And there's nothing at law that says the drafter of a license
>can ignore it's provisions.
In that case, even Wotc wouldn't be able to publish the PHB as they'd be
restricted to the material in the SRD and that has since been made OGC by
third parties.
>>
Not true. The PHB has nothing to do with the OGL. The OGL is a licensing agreement. They don't need a licensing agreement to use their own content.
They need a licensing agreement to borrow content (like they did in Unearthed Arcana). Since the PHB contains only content that WotC owns (or was licensed outside of the OGL), then WotC can freely publish it and excerpt it without relying on the OGL. The OGL is what they used to license the SRD from them to you. In doing so, WotC did not give up their copyright to the PHB. Nor did they even give up their copyright in the SRD. They can choose, for example, to license out the SRD under a Creative Commons license, if they desired. Then you'd have two totally separate licensing routes to acquire access to content.
<<There are obviously cases where WotC is not subject to the OGL.>>
This is NOT because the OGL can't reach WotC, but because they are contracting via a separate license to use something or because they are using their own materials. WotC has no special exceptions to the OGL except that they don't need it to use their own content (an exception everyone has for their own stuff), since they don't need to license content to themselves.
For example, take Action System (which is not based on the d20 SRD). OK, without the OGL, WotC theoretically could license the text from Mark Arsenault outside of the OGL. That's not an example of WotC not being bound by the OGL because they are special. That's an example of them not using the OGL at all and going through a different legal route to acquire access to intellectual properties.
This is not the same as saying that WotC isn't bound by the OGL when it is borrowing using the OGL. It's just that there are ways to borrow stuff that doesn't involve the OGL at all.
That's extremely different than being able to ignore the OGL simply because you are WotC, Steve.
<<
I agree, that is preposterous. This is, however, many steps removed from something like Dragon magazine where the items are bound together with the same staples and cannot be removed from the rest of the bundle in any way for purchasing. It's also much different than a boxed set.>>
Magazines are works containing other works generally. For example, if a magazine contains ads, then the artwork in each ad is a separate work with a separate copyright that WotC doesn't own unless WotC is advertising it's own product. Works can contain other works. There is no restriction in the license on a "covered work" not being part of a compilation. So, presumably you can cover a single work in a compilation without covering the compilation.
Some magazines (not necessarily Dragon), for example, merely compile a bunch of articles which are owned by separate individuals. The resulting magazine is a work unto itself, however, each article in it may be owned by an entirely different individual and may have a separate copyright which is unrelated to the copyright of the other articles.
So, I largely see it as no practical difference at all with regards to the OGL between a magazine and a shrink-wrapped bundle of goods as far as what is and is not possible with the OGL.
<<
Again, unless you're able to break the box down and sell it's pieces individually as a matter of course, I don't see why the whole thing
wouldn't be considered covered by the OGL as it catalogues, sells and was
developed as a signle product.
>>
Because the OGL applies to covered works, and I would strongly presume that the person using the license is choosing which work he is applying it to. Since works can contain other works, it is entirely possible to have a boxed set, where the box itself represents a work, where a non-OGL fiction and background book is contained, and were an OGL'd rulebook is contained. In that set only one of those works is a covered work, and certainly it would be possible to establish separate copyrights for the box, for the rulebook, and for the fiction and background book.
The oft-discussed 3rd type of content is NOT one acknowledged by the license. The license says that in a covered work everything is OGC that is not PI. It's right there in black and white. The 3rd type of content (that not covered by the license) exists, only if you handle the license properly, because you define a single work that is covered by the license, and that covered work is merely a subset (rather than the entirety) of an enclosing volume. The OGL only directly applies to the "covered work". You should, therefore, be able to apply the OGL to just a single chapter of a book (if that chapter can lawfully be considered a work), particularly if that book is a compilation. Similarly, in a magazine you should be able to apply the OGL to an article without applying it to the whole magazine. You have to apply it to a "work", and so you might get in some legal gray area by applying it to something so small, isolated, or made up of such disconnected elements that it doesn't legally constitute a work.
Lee
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