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

[jgbrowning]

For the uninitiated what is a bench judgement and what would it do?

I'm not a lawyer so...., but I've always understood it as a trial without a jury. (now, lets see how wrong I am.. )

joe b.

 

[Snarf Zagyg]

Hrm... Dancey and Glicker (at role for combat) talked about getting a bench judgement. Glicker said that after speaking with Dancey he spoke with several lawyers and he said that they all thought that a bench judgement was likely. It doesn't sound like any of the lawyers here think that.

joe b.

General rule of thumb, in American courts, is that cases, even civil cases, go to jury trials.

That's not always true.

In Federal Court, the issue is the Constitution- the Seventh Amendment guarantees the right to a jury trial in all cases at common law where the value in controversy exceeds ... um ... $20. Yeah, no inflation adjustment there. There has been a little narrowing since then in caselaw (for example, actions sounding solely in equity for which no right to jury trial exists, or, um admiralty claims), but otherwise, absent screwup (like a failure to demand it), the parties would have to agree to a bench trial.

State law can be more complicated, and will depend on the state.

@UngainlyTitan Bench Judgment implies a bench trial- that a judge (not a jury) will make the final judgment.

 

[bmcdaniel]

I would agree. Revocation is a discretionary - and potentially even arbitrary - choice by a party who has that discretion under a contract or trust. Termination is consequential on a event(s) or other condition; it may include a discretionary revocation -- but it is more than that so that there is a triggering event which can bring it into effect.

These are generalities of course, and in many cases amount to a distinction without a difference. But in terms of general terminology and use in contractual language, I think that is true.

Agree, and there are other connotations they carry, just to much to write in a single post.

For example, if an agreement covered multiple subjects with multiple rights, I'd be likely to use "revocation" describe the cessation of a specific right, but "termination" to describe the cessation of the entire agreement. E.g. "Corporation and Painter agree that Painter shall paint building #1 in exchange for $100. To facilitate such painting, Corporation agrees Painter may use all walkways, storage sheds, maintenance facilities and similar areas appurtenant to building #1; provided that Corporation reserves the right to revoke Painter's use of such areas during days when building #1 is open to the public. Corporation and Painter agree that Corporation may terminate this agreement by 90 days prior notice to Painter."

But I will add that connotation aids interpretation, it is not definitive. In context, the usage of "revoke" in a non-discretionary, entire manner can be clear. "This [R&D] agreement shall be revoked, with no further action or notice required of any party hereto, in the event that [the pharmaceutical compound] is placed on Schedule I to the Controlled Substance Act." In context, perfectly understandable and enforceable, even if I would use a different word.

 

[Tazawa]

WotC IS a party to the contract, one of the main considerations that they recieve from the contract is that they are ALSO free to use anyone elses OGC in future book (just like everyone else who agrees to the contract.) They have done this twice, UA & MM3. The fact that they have chosen NOT to excercise this right doesn't make it non-existent.

Which does bring up an interesting point. There are definitely some elements of later 3.5, 4e, 5e that are derived from the alternate rules in Unearthed Arcana, including the original, non-derivative open game content from Mutants and Masterminds and Swords of Our Fathers that is included in that book. If that material was purely derivative, WotC would not have needed to include those copyrights in their Section 15.

No one questioned this, because of the goodwill generated by the OGL. But WotC could be open to copyright infringement claims from Green Ronin and whoever holds the copyrights of The Game Mechanics, especially if they start to strongly press claims that game content is copyrightable.

 

[Tazawa]

Double post

 

[Dausuul]

In Federal Court, the issue is the Constitution- the Seventh Amendment guarantees the right to a jury trial in all cases at common law where the value in controversy exceeds ... um ... $20. Yeah, no inflation adjustment there. There has been a little narrowing since then in caselaw (for example, actions sounding solely in equity for which no right to jury trial exists, or, um admiralty claims), but otherwise, absent screwup (like a failure to demand it), the parties would have to agree to a bench trial.

Which raises the question... would either side want a jury trial in this case? And if so, which one?

On the one hand, it seems like a jury would be more likely than a judge to favor the little guy over the big bad megacorp. On the other hand, I have the impression (which may be utterly mistaken) that jury trials take a lot longer, which would naturally favor the megacorp if its plan is to run its opponent out of money and force them to settle. I'd be curious to hear your thoughts on it.

 

[Snarf Zagyg]

Which raises the question... would either side want a jury trial in this case? And if so, which one?

On the one hand, it seems like a jury would be more likely than a judge to favor the little guy over the big bad megacorp. On the other hand, I have the impression (which may be utterly mistaken) that jury trials take a lot longer, which would naturally favor the megacorp if its plan is to run its opponent out of money and force them to settle. I'd be curious to hear your thoughts on it.

Hard to say. I'll probably write a longer-ish article about this in the future, but when you're looking at corporation v. corporation (even if one is "the little guy,") the rules get a little scrambled from the old-fashioned, "Little guys like juries, corporations and soulless dead eyed elves like bench trials."

Large corporations with a lot of money can afford a lot of ... stuff. Not just the bestest (and mostest) attorneys, but also all the small things to give them an edge. A rapid response team of associates following the trial (and immediate transcripts every day). A jury consultant team to make sure that you not only get an optimal jury, but that you match the themes you are developing in the trial for that particular jury- down to each individual juror. And so on.

In short, there are a lot of strategic decisions that would go into this (if it gets to that point). But there is no reason I would necessarily expect a bench trial. Heck, we still don't know what Hasbro's claims would be, if they were to file suit.

 

[Steel_Wind]

I'm not a lawyer so...., but I've always understood it as a trial without a jury. (now, lets see how wrong I am.. )

joe b.

A "bench judgment" is a judgment by a judge, not a jury. It is a term used in American law, where a civil trial by jury is frequent.

In other common law jurisdictions, civil jury trials are available in only limited circumstances -- and increasingly, not available at all.

And you are not wrong!

 

[EagleDelta]

@DavyGreenwind I know you're just using them as examples, but considering how many products out there, specifically Fantasy RPGs of all kinds (TTRPG, MMORPG, CRPG, JRPG, etc) use the base DnD classes in a way similar to WotC's definition (not to mention the race names, the ability scores, etc) how would this affect things, if at all, outside the TTRPG space. If such things ARE copyrightable, then wouldn't that put a huge target on the backs of any RPG game maker that makes or has made similar systems, even if it's not TTRPG?

I would be interested to see reasoning as to why Charisma, which is defined in the dictionary as "compelling attractiveness or charm that can inspire devotion in others." would be copyrightable as a mechanic involving the ability to charm or inspire someone. At that point, wouldn't it be copyrighting the natural assumption of what that word means in the context of a game?

 

[Steel_Wind]

Which raises the question... would either side want a jury trial in this case? And if so, which one?

On the one hand, it seems like a jury would be more likely than a judge to favor the little guy over the big bad megacorp. On the other hand, I have the impression (which may be utterly mistaken) that jury trials take a lot longer, which would naturally favor the megacorp if its plan is to run its opponent out of money and force them to settle. I'd be curious to hear your thoughts on it.

You are not wrong about either hunch; however, the extra cost of a jury trial is not crippling in my experience. Still, it is not trivial, either. If one of the parties is on a very tight budget? It matters!