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

[Steel_Wind]

is it expensive enough that bringing one can tip the scales to the person with the bigger bank account? I am sure that to those of us in the "under 70K a year) range in the US EVERYTHING dealing with this kind of case costs a ton of money... I would not be surprised if my annual salary got spent in a few days on a case like this.

Interlocutory motions range in price from $5k to $20k CAN, typically. To go beyond that in cost (many do) it tends to be something special. An Injunction would be one of those times.

Again, it depends on the circumstances and the timetable, but I have conducted injunction motions where the costs of the motion awarded by the court (as distinct from the retail cost charged to the client) have been as high as $225,000. You would expect the actual cost of the motion was closer to $600k to the plaintiff on that one (motion to appoint a limited purpose receiver which was opposed).

$20k to $60k is far more typical -- again -- it is highly fact dependent.

Still, the point is, injunctions are expensive motions to fight and the costs awarded for them by the court is also much higher than is typical for other motions (in those jurisdictions which do award significant costs -- the UK, Canada, Australia and New Zealand do so by default; American state courts tend not to). Injunction motions are litigation that -- if it were gambling? It would be a bet made at a more exclusive casino table, where everybody seems to have fatter wallets, are wearing more flashy jewelry and are drinking more pretentious cocktails. Get the picture?

 

[DavyGreenwind]

I would also like to talk about the reason for my original post. I'm not trying to defend WotC or anything--I hope they don't even try to revoke the license.

I've just been seeing a lot of videos and stuff going around saying "You don't need the OGL!", or "You can keep using a previous license no matter what they say!" I just want to make sure people don't rely on these statements to keep publishing what they want and disregard any new OGLs. Because they may get sued and lose.

Rather than trying to legally out-maneuver WotC (who have their IP ducks in a row more than I think people realize), the best thing for people to do is to campaign for WotC to keep DnD open. Ultimately it needs to be a business decision, not a legal decision.

 

[GMforPowergamers]

Interlocutory motions range in price from $5k to $20k CAN, typically. To go beyond that in cost (many do) it tends to be something special. An Injunction would be one of those times.

Again, it depends on the circumstances and the timetable, but I have conducted injunction motions where the costs of the motion awarded by the court (as distinct from the retail cost charged to the client) have been as high as $225,000. You would expect the actual cost of the motion was closer to $600k to the plaintiff on that one (motion to appoint a limited purpose receiver which was opposed).

$20k to $60k is far more typical -- again -- it is highly fact dependent.

Still, the point is, injunctions are expensive motions to fight and the costs awarded for them by the court is also much higher than is typical for other motions (in those jurisdictions which do award significant costs -- the UK, Canada, Australia and New Zealand do so by default; American state courts tend not to). Injunction motions are litigation that -- if it were gambling? It would be a bet made at a more exclusive casino table, where everybody seems to have fatter wallets, are wearing more flashy jewelry and are drinking more pretentious cocktails. Get the picture?

thank you... I like getting an idea of the scale of the numbers involved. Even a 'small' big TTRPG company wont be bullied for $20k

 

[Steel_Wind]

thank you... I like getting an idea of the scale of the numbers involved. Even a 'small' big TTRPG company wont be bullied for $20k

You have just followed the rule that all clients do when quoted an estimated range for a motion that requires all of the facts to be in and work done before the real bill is known.

Firstly, you ignored the exception that it could be higher; and
Secondly, you quoted the low number of $20k and not the higher ranged number of $60k.

This is why lawyers don't like giving estimates. What the lawyer says is not what the client hears.

 

[S'mon]

I've just been seeing a lot of videos and stuff going around saying "You don't need the OGL!", or "You can keep using a previous license no matter what they say!" I just want to make sure people don't rely on these statements to keep publishing what they want and disregard any new OGLs. Because they may get sued and lose.

AFAICS, between these three options:

1. Sign the OGL 1.1
2. Publish with no licence.
3. Publish under the OGL 1.0

#3 remains clearly the safest option, though not risk free, for most 3PP publishers.
#2 may be best for those who never needed the OGL.
As for #1, given the terms of the OGL 1.1 I would not advise anyone to sign it.

Do you disagree?

Edit: Of course "cease publishing" is also an option, which I think many may end up taking.

 

[theConjurer177]

First, the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

This is false. There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

I beg to differ. The term "perpetual" implies that the license is irrevocable. "Perpetual" signifies a contract of unlimited duration.

According to the text to which you, yourself, linked, "courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration." Thus, the OGL is ipso facto non-terminable in perpetuum, or in other words, forever.

Your "PSA" is in fact false.

 

[Steel_Wind]

AFAICS, between these three options:

1. Sign the OGL 1.1
2. Publish with no licence.
3. Publish under the OGL 1.0

#3 remains clearly the safest option, though not risk free, for most 3PP publishers.
#2 may be best for those who never needed the OGL.
As for #1, given the terms of the OGL 1.1 I would not advise anyone to sign it.

Do you disagree?

Edit: Of course "cease publishing" is also an option, which I think many may end up taking.

To this, I would add the important gloss that we should wait and see what the terms of the OGL 1.1 ultimately are. We don't know for sure yet.

I think we need to strike a balance between "pushing back" and "being patient".

There's no prize for being hasty here. Let's wait and see what the future brings.

 

[HomegrownHydra]

Hrm...I was just told by the phone-in-commentator rent-seeking behavior isn't rent-seeking behavior because he thinks that the point of the rent-seeking is to prevent the growth of large competitors, so yeah...

joe b.

"Rent-seeking" is about getting money from other people's work, but as the commentator explained that is  not the goal of such a punitive royalty. The point of the royalty is to keep all 3PPs below the $750,000 mark and thereby prevent anyone becoming a competitor to D&D as happened with Pathfinder. In other words, if the royalty works as planned WotC will not get any money from it as no one will go above the $750,000 threshold because there would be no point since the royalty would take away all of the 3PP's additional profit. And if a 3PP somehow figured out a way to survive above that level, WotC would simply increase the royalty rate until they are knocked down below that mark.

 

[kjdavies]

In one of these threads I posted that I don't know the US law on adequacy of consideration.

But it seems to me that the OGL v 1.0/1.0a has consideration flowing in both directions: the licensor confers permissions to use its OGC (including by way of sub-licensing it); the licensee promises to make a standing offer to all comers to license their (that is, the licensee's) OGC on the same terms, including permitting the choice of variants as per section 9.

If I'm not licensed under the OGL, I understand, I could publish a book and mark it 'compatible with D&D' and (potentially) benefit in the marketplace. There are other elements around copyright and using trademarks correctly, but part of using the OGL means giving up that right. Does this count as a consideration from the licensee?

Edit: I see someone else asked this earlier, more concretely, and you've answered that yes, it is.

 

[jgbrowning]

Here it is, apparently.
(Sourced from )

joe b.