Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[pemerton]

You're asking how it would work across dozens of Civil Law jurisdictions when I'm not even French. I'm not going to attempt to answer that.

Fair enough!

I had a colleague who worked on the CISG, and so was into comparative Civil and Common Law contract law. Her view was that there was more overlap on good faith in contracting than is sometimes thought, once common law doctrines that govern pre-contractual negotiations are fully taken into account (eg estoppel, undue influence, unconscientious dealing/"catching bargains", misrepresentation, fiduciary law in some cases, etc).

But as I said it's not something I've ever really tried to get my head around.

 

[mamba]

Close, maybe. But 'close' doesn't count.

I take feet away from miles away, which is what your comparison was

But lets say this comes down to a court ruling. WotC can accept the costs of legal representation and an extended legal process. Who among the d20 splatbook community has tens of thousands of dollars for such a battle? There are regular threads here whining about how poor RPG writers are.

I agree and said so a few times already. WotC’s best strategy is to prevent everyone from getting in front of a judge, because if they are there is a good chance they will win. And WotC probably has the funds to accomplish this (depending on who the opposition is and how determined they are).

At that point it no longer is a legal argument though, but might makes right

 

[GMforPowergamers]

no, it’s not both ways. The GPL 2.0 won, it is irrevocable and does not say so to this day.

if it's not needed then why update the other ones? I don't understand how someone can say "This company updated there open licences to close this loophole" (and paying your law team to do that and redraft isn't cheap) but also say "but it's settled there is no loophole"

maybe it's because I don't have a law background but those two statements can't make sense in my mind.

What happened is that other licenses decided to add it, so no one is even tempted to go to court over it

right so lawyers for those other companies felt the need to change it... and that there was a chance to be brought to court over it, even though they themselves must be the authorizer so if they want it open they have no reason to want to take it to court, but they see some future where a new CEO (or what ever) comes in and tries to close it. So if that team saw a loop hole and thought it was worth closing, doesn't that by default show that some lawyers see an argument that has some merit?

we have more than interpretation of the meaning, we have statements from everyone involved that it was intended to be irrevocable, some repeated that now / can testify to that in court.
There is no need to interpret what the founding fathers could have meant by it, we can simply ask them

big points for both seeing what I meant and not making it political.

 

[Steel_Wind]

There is no undue influence here. These are all arm's length transactions between informed business parties. (In Australian and English law undue influence can operate in contexts other than estates, but it requires showing that someone's mind was overborne by the will of another. Nothing of that sort is happening here.)

Yes, undue influence can also affect contractual capacity, but that does not seem to arise on these facts.

While this case has nothing to do with the OGL at all, it is of interest to those in the U.K. and Australia as an odd development in the Canadian common law you might not otherwise hear about. The law of unconscionable procurement, in the Estates/ Power of Attorney context received a resurrection spell in 2020 in an Ontario decision Gefen v Gefen Estate . The trial decision was appealed, but not on the unconscionable procurement point, so it remains good law.

The right case (I am currently counsel on one of those cases which might be the "right" case) may well go to the Supreme Court of Canada for ultimate clarification. The test for unconscionable procurement to challenge an inter vivos transaction is much easier than the test to meet for undue influence, as once you meet certain criteria under unconscionable procurement, the onus is on the recipient to prove the validity of the gift, not on the challenger to prove it was ill founded. Gefen v Gefen Estate is, accordingly, a rare weapon to keep in your back pocket in case you might need it.

 

[GMforPowergamers]

We also need to watch carefully for sneaky attempts to bind people to the new OGL via clickwrap agreements on DnD Beyond and similar outlets.

nobody reads the DMG... I mean terms of service. I would LOVE to say business minded people are exempt from this, but they are not.

 

[pemerton]

WotC’s best strategy is to prevent everyone from getting in front of a judge, because if they are there is a good chance they will win. And WotC probably has the funds to accomplish this (depending on who the opposition is and how determined they are).

I'm curious about this.

If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?

I'm not and have never been a litigator, and so am probably missing something (or many things) - but stopping the matter from coming before a court sounds to me more like a defendant's strategy than a plaintiff's strategy.

Perhaps @Steel_Wind could chime in?

 

[Jd Smith1]

I take feet away from miles away, which is what your comparison was

Actually, you didn't change anything. You stated an opinion.

I agree and said so a few times already. WotC’s best strategy is to prevent everyone from getting in front of a judge, because if they are there is a good chance they will win. And WotC probably has the funds to accomplish this (depending on who the opposition is and how determined they are).

At that point it no longer is a legal argument though, but might makes right

Actually, there is a better chance that WotC would win. They own the property, and they have the means to sustain a extended legal battle. All the more so because it is very likely a judge would halt the continued use of the OGL until the matter is resolved.

In the courts, the ability to pay legal costs often equals the ability to win. Particularly since this is WotC against a group.

 

[GMforPowergamers]

I'm curious about this.

If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?

I don't know if the phrase 'coming in front of' has a different meaning to lawyers then it does to us, but in my mind until the judge bangs his gavel and rules, there is A LOT WotC/Hasbro lawyers can do to delay and cost money... all the time making it hard for any 3pp from doing anything.

 

[Myrdin Potter]

I'm curious about this.

If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?

I'm not and have never been a litigator, and so am probably missing something (or many things) - but stopping the matter from coming before a court sounds to me more like a defendant's strategy than a plaintiff's strategy.

Perhaps @Steel_Wind could chime in?

I think they can delay it to add cost and grind down their opponents who are much smaller than them by dragging out the pre-trial steps as long as possible, but they will be fighting against defense lawyers who will be trying for a speedy trial. Hard to say, some of it goes to the judge and how busy they are and how pissed they get over such tactics.

 

[GMforPowergamers]

Actually, there is a better chance that WotC would win. They own the property, and they have the means to sustain a extended legal battle. All the more so because it is very likely a judge would halt the continued use of the OGL until the matter is resolved.

SOmeone in another thread told me that the injunction thing that could shut down the 3pp from continueing until the case is resolved is unlikely to happen... for reasons. I don't understand the legal things, but it's very possible.