[pemerton]

Originally Posted by Positronica

I agree that its not a very clear-cut section, and that Wizards would have a tough time making headway with it in court, however the opening would still be there. If Wizards were to sue another publisher who had never been a licensee of the GSL, over the use of something trivial such as dragons or demons in a fantasy based game, they would most likely lose in court, and the defendant would have a chance at countersuing for damages and or legal expenses. If the defendant however had at one time been a GSL licensee, then Wizards would be able to use section 10 of the GSL as the basis for their suit, and while they would still most likely lose in the end, the defendant would have a much harder time making any headway with a countersuit. I think that's the biggest risk of section 10 is that it gives Wizards an opening to file what would otherwise be considered a baseless or frivilous lawsuit.

If this opinion is based on experience as a lawyer, then I'll defer to practical expertise. But my intuition is to be a little doubtful as to your claim.

Clause 10.1 does not vest any special right of suit in WoTC. It does two things that I can see.

First, it simply expresses the licensee's a recognition of Wizard's exlusive rights and interests in any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards, in each case whether arising under the laws of the United States or any other jurisdiction. The clause states that this includes "all content contained within the Core Rulebooks and all Licensed Materials, including without limitation the SRD", but I would think that this has to be read within the context of the clause as a whole: given that the recognition is of rights and interests arising under law, and that no law gives WoTC any property rights in the words "the" or "dragon", then the most natural reading is that these individual words do not fall within the meaning of the phrase "content contained within the Core Rulebooks".

I think that the main function of this aspect of clause 10 is to ensure that the licence is not interpreted as any form of assignment of, or creation of, IP rights in the licensee.

Under the clause, the licensee also promises not to use any of that IP without licence from WoTC.

If a licensee went on to publish a non-licensed product that involved dragons, WoTC could try and sue them either for infringing WoTC's trademarks, or for breaching their contractual obligation not to make use of WoTC's IP. The first argument would seem a little pointless: given that clause 10.1 does not require the licensee to recognise any rights in WoTC beyond those created by law, I don't see that WoTC could gain any advantage by pleading clause 10.1 instead of whatever law they are arguing their trademark rights arise under.

The second argument is a little more interesting, because it precludes the (former) licensee from using WoTC's IP even in circumstances where that would otherwise be lawful. This would therefore preclude (for example) publishing a product which said "Compatible with Dungeons and Dragons".

But I don't see how the clause would encourage frivolous suits by WoTC. From WoTC's point of view there would certainly be nothing frivolous about stopping a publisher making the compatibility claim, for example.