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?
Well, the old addage is that plaintiffs run
TO the courtroom; defendants run away
FROM the courtroom. That much is true; however, it can change depending on.
What WotC would want is to run TO the courtroom to obtain an injunction -- WIN -- and then RUN AWAY from the courtroom to delay the ultimate hearing on the merits so that the underlying injunctive remedy (which it has already received the benefit of) is not displaced or otherwise undone. As a term of obtaining an injunction, most jurisdictions require that the party seeking the injunction gives an undertaking in damages, too. So ultimately, if the injunction was wrongly granted, the party that obtained the injunction is writing a cheque for damages to the other side, even if they win the underlying case. That's another reason why you don't want the ultimate hearing on the merits.
Injunctions turn upon the unique facts of each case. As I indicated earlier in this thread, I am highly skeptical that WotC could obtain an injunction under the 1.0a OGL based on some revision to the OGL in 1.1, as it is unlikely to meet the 3 part test for an injunction. The test was set down by the House of Lords in
American Cyanamid Co. v. Ethicon Ltd., [1975] l All E.R. 504 and is the law which is followed in all common law jurisdictions, including the United States, though there is variation as to when it applies and WHAT it applies to between jurisdictions.
The injunction test requires the moving party who seeks injunctive relief to prove on a balance or probabilities:
- it appears to have a strong case and a prima facie right to the relief in dispute;
- it would suffer irreparable harm were the injunction not granted; and
- the balance of convenience favours granting the injunction.
While every injunction case turns upon its own specific facts, I do not think based on what we have seen so far that WotC would get an injunction under the OGL 1.0a.... but PLEASE take that well-salted. This stuff is
highly fact dependent and every case is different. Trying to moot something like this absent facts is not terribly helpful - or an accurate projection, okay?
Anyway, if WotC DID get an injunction, after that, they would seek to delay any ultimate hearing on the merits. Those would be the typical circumstances that reverses the addage of who runs to the courtroom and who runs away from it.
