I remember a while ago being told that there is a clause in the OGL, that ensures that anyone who copies OGC from another publisher who has broken the OGL, does not have to destroy their books.
The section is called Section 13 Termination. Here is the OGL on the Hypertext d20 SRD website, so you can follow along:
I believe that the part about sublicences surviving the breech, was so that a publisher who borrowed OGC in good faith from another publisher who included content that broke the OGL, would not also be in breech of the OGL.Open Game Licence wrote:13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.
That all seemed hypothetical, until I heard of this book (and maybe others from Fast Forward Entertainment) that broke the OGL and thought about what might happen to stuff published under the OGL that broke the OGL.
In this case, WotC does not seem to have a problem, as the book has what I have heard called "crippled content". There is an OGC/PI declaration that states this:
There is more it than that, but the broad definition means that they are claiming the names like Lolth, Gruumsh and Maglubiyet as Product Identity.Green Races page 220 wrote:Designation of Product Identity: All material other than game rules already considered Open Gaming Content is considered Product Identity as described in Section 1(e) of the Open Game Licence version 1.0a (see below). This includes, but is not limited to Temple of the Troll God, Fotress of the Ogre Chieftain, Slave Pits of the Goblin King, Encyclopedia of Demons and Devils, Rings of Power, all non-historical characters, artefacts, creatures, spells, non-historical place names, events, plots, artwork, logos, trade dress, product names, company names and logos, product lines, artifact names, spell names, non-historical creture names.
Anyhoo, if that had not been there, I wonder if Section 13 would have been creating OGC versions of Lolth, Gruumsh, Maglubiyet and any other D&D things that have been namechecked that were legally isolated from the TSR/WotC versions and available for other publishers under the OGL.
I know that someone got two computer expert (who never met) to clone the BIOS chips that IBM created for their PCs. I wonder if a similar process involving one product that broke the OGL and another product that referenced that product could be used to make a loophole that allows other companies to make things that use terms that WotC never intended to be Open Game Content.
I don't think most publishers would do this, as it's kind of a scummy move, but with the 3e SRD hobbling D&D's Outer Planes, I could imagine someone trying this sort of trick, in order to be able to make 5e products that were Planescape compatible.
What do you think?