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My thoughts on the new OGL v1.2 draft
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<blockquote data-quote="pemerton" data-source="post: 8911126" data-attributes="member: 42582"><p>No one needs any court order or court decision to keep using the OGL v 1.0a. If they are confident of their legal rights, they can just keep on publishing and be ready to defend themselves - by pleading their contract - if and when WotC commences against them for copyright infringement.</p><p></p><p>I'm not a litigator, but my view is that you wouldn't. You'd wait until WotC commences against you for copyright infringement and then plead the contract in your defence.</p><p></p><p>If someone is concerned that WotC is going to breach a contractual obligation, they can seek an injunction to try and prevent that breach. Not every threatened breach of contract entitles the "victim" of that breach to be awarded an injunction - there are various technical rules that apply. But the key thing here is that there is no clear sign that I can see that WotC is proposing to breach its contractual obligations to anyone.</p><p></p><p>In the lawyer-PSA thread I did canvass a possible argument that, contrary to what WotC seems to want to do, <em>existing parties</em> to licensing agreements with WotC that are under the terms of the OGL v 1.0a may have an entitlement that WotC not rescinds its offer to license <em>to them</em>. I don't know if it's a good argument - eg I'm not sure if contract law in the relevant jurisdictions even acknowledges the possibility of an offer being on foot in circumstances where a contract based on the same offer has already come into existence. But it might be a basis on which an existing licensee could seek an injunction against WotC. But a 3PP would need pretty solid and sophisticated legal advice - thought through in much more detail than I am able to work through in a message board post - before commencing that sort of suit.</p></blockquote><p></p>
[QUOTE="pemerton, post: 8911126, member: 42582"] No one needs any court order or court decision to keep using the OGL v 1.0a. If they are confident of their legal rights, they can just keep on publishing and be ready to defend themselves - by pleading their contract - if and when WotC commences against them for copyright infringement. I'm not a litigator, but my view is that you wouldn't. You'd wait until WotC commences against you for copyright infringement and then plead the contract in your defence. If someone is concerned that WotC is going to breach a contractual obligation, they can seek an injunction to try and prevent that breach. Not every threatened breach of contract entitles the "victim" of that breach to be awarded an injunction - there are various technical rules that apply. But the key thing here is that there is no clear sign that I can see that WotC is proposing to breach its contractual obligations to anyone. In the lawyer-PSA thread I did canvass a possible argument that, contrary to what WotC seems to want to do, [i]existing parties[/i] to licensing agreements with WotC that are under the terms of the OGL v 1.0a may have an entitlement that WotC not rescinds its offer to license [i]to them[/i]. I don't know if it's a good argument - eg I'm not sure if contract law in the relevant jurisdictions even acknowledges the possibility of an offer being on foot in circumstances where a contract based on the same offer has already come into existence. But it might be a basis on which an existing licensee could seek an injunction against WotC. But a 3PP would need pretty solid and sophisticated legal advice - thought through in much more detail than I am able to work through in a message board post - before commencing that sort of suit. [/QUOTE]
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