Fruit of the Poisonous Tree (reusing old d20 material)

[Sledge]

Wrong.
The critters were NEVER released as Open Game Content. The version of the SRD you are thinking of was published under the 'gentleman's agreement' wherein WOTC promised to eventually release most of the material as OGC provided publishers honoured the changes made.
Once open, always open -- but in terms of the law, the mind flayer (and the other canon critters, like beholders and carrion crawlers) was never open. No version of the SRD *actually released* under the OGL contained these creatures. Only the 'draft' SRD which was never placed under the OGL -- and thus, was never open -- contained them.
WOTC is pretty good about granting permission to use the verboten creatures, but you need to ask first.

Doh, my bad. Don't know why I thought they used to be in there. I couldn't have seen anything given only to publishers. Sorry about confusing peoples.

 

[Lizard]

Doh, my bad. Don't know why I thought they used to be in there. I couldn't have seen anything given only to publishers. Sorry about confusing peoples.

The draft SRD was freely avilable from Wizard's site from the dawn of the OGL. It's the one most people used for many years. I don't think the 'final' version sans Mind Flayers was released until 2002 or so.

If you had read the legalese, you'd see the bit about it not being really OGC. To a certain extent, a good deal of faith in WOC was required to use the draft SRD. They had no formal legal obligation to EVER release it under the OGL and could have pulled it at anytime, killing the D20 market.

 

[Sledge]

hmmm I wonder if it's still floating around here somewhere....