I'm honestly not sure how they think they can define "fantasy" or prevent just-about-stand-alone games, like Spycraft 1.0. I mean, really, the difference between a 'fantasy' game and a 'modern' game is:
Classes
Powers
Equipment
Fluff
I create classes like Gunslinger, Commander, Sneak, and Con-Man. I add rules for guns. I create appropriate exploits. I write a lot of modern fluff.
I do not include any forbidden rules. Since I probably won't be able to reproduce large blocks of text, I write my combat rules to integrate as smoothly as possible with the 4e rules, including additional material as needed. Ditto feats and skills. While it won't be as elegant as having all the rules (except chargen/XP) in one volume, it's still functional, since almost all of my target audience will have the 4e PHB anyway.
I can always add a worldwide mystical conspiract headed by, I dunno, a dragon or something, and say "It's a game of fantasy espionage adventures".
I'm not trying to "break the rules" -- I'm trying to show the rules aren't (at this point) making a whole lot of sense. I am really nervous about any attempt to define something as slippery as "fantasy" in a legal document. I think it will cause publishers to self-censor, reining in their imaginations so as not to stray too far from where the current consensus places "fantasy".