Class action lawsuit?

[ECMO3]

I have seen a lot of people who note the difficulty fighting WOTC legally on the new OGL due to WOTC/Hasbros's team of lawers that will just beat down any of the small companies that want to fight for the right to publish.

This is probably true, but what about a class action regarding WOTC's deceptive practices pushing OGL 1.0 while posturing to take those rights away with OGL 1.1? It seems to me there may be grounds for this as an attack on a whole class of small businesses and while only the Lawyers make money in class action lawsuits, the threat of such could cause WOTC to reconsider.

 

[Matt Thomason]

Difficult to say until we've actually heard anything official. I've seen mumblings here and there, but it's all going to depend on how they phrase things publicly, and whether they try to imply that the OGL 1.0a is de-authorized whether we or not we agree to 1.1 leaving no other option than to agree to 1.1 in order to continue using existing "Open" Game Content.

Otherwise, we're all left waiting to see if WotC decide to take legal action against anyone still using 1.0a.

 

[Shiroiken]

Once the 1.1 OGL is officially released, I feel this is probably the best course of action for the industry. While some of the largest companies like Piazo and Kobold Press might have the resources to stand up to WotC, the vast majority will not. By placing it as a class action lawsuit, the final verdict will impact the entire industry, rather than individual companies. The downside is that from my understanding, a lot of these are settled before going to the final verdict, which would not prevent WotC from trying this nonsense again, or worse, limiting the agreement to just those who entered the class action lawsuit in the first place (leaving everyone else in the wind).

 

[pemerton]

There is a lot of unfounded legal speculation going on in these threads, by people who don't seem to have a good working knowledge of the relevant law.

To me, the idea of a class action against WotC for deceptive practices seems fanciful:

The only thing you are suggesting WotC deceived about was its intentions in relation to, and understanding of, the OGL. But there is no evidence that WotC was being deceptive - the company may have changed its mind and its legal understanding.

And for most tortious claims (not all) its necessary to prove loss - I don't believe that fraud is actionable per se. What loss did OGL cause to all those 3PPs by encouraging them to publish and sell their commercial works?

Given that in fact those 3PPs are making money from their commercial ventures, they want to prove the validity of their licences.

Where is the deceptive practice? Where is the unconscionability?

And also, what is the remedy you are seeking?

The reason for pleading unfair and deceptive practices is either to have a transaction rescinded, or to receive compensation for loss. But 3PPs don't want those things - they want the contract they are party to to be recognised and enforced! This is why I have emphasised that, to the extent that evidence was led about WotC's representations about the OGL, it would not be to argue that those were misrepresentations which vitiate the licence but rather to argue that they are genuine representations that establish the meaning of the licence terms in the settled business context.

 

[Cordwainer Fish]

To bring suit, you have to state grounds under which relief may be granted. "They're being bleepheads!" does not count, even if they are bleepheads.

 

[Slit518]

I have seen a lot of people who note the difficulty fighting WOTC legally on the new OGL due to WOTC/Hasbros's team of lawers that will just beat down any of the small companies that want to fight for the right to publish.

This is probably true, but what about a class action regarding WOTC's deceptive practices pushing OGL 1.0 while posturing to take those rights away with OGL 1.1? It seems to me there may be grounds for this as an attack on a whole class of small businesses and while only the Lawyers make money in class action lawsuits, the threat of such could cause WOTC to reconsider.

How about larger companies whom may also potentially be effected by this?
Aside from Paizo, what about Disney with Star Wars? Blizzard/Microsoft with Warcraft?
Square Enix with Final Fantasy? Sony Online Entertainment with EverQuest?
The Tolkein estate with their LotR RPG?
Surely some of these companies are more at jeopardy than others, but still, would Hasbro want to go to court with them? Some with much-much deeper pockets and larger legal teams.

 

[Matt Thomason]

How about larger companies whom may also potentially be effected by this?
Aside from Paizo, what about Disney with Star Wars? Blizzard/Microsoft with Warcraft?
Square Enix with Final Fantasy? Sony Online Entertainment with EverQuest?
The Tolkein estate with their LotR RPG?
Surely some of these companies are more at jeopardy than others, but still, would Hasbro want to go to court with them? Some with much-much deeper pockets and larger legal teams.

Out of that list, I can likely check Disney off straight off the bat - I'm not aware of any Star Wars products that were produced using the OGL. The d20 system, yes, but under a separate license (both for the RPG and for KotoR).

With all of the rest, although they have their IP used in OGL 1.0a products (or rather, I'm aware of everything other than Final Fantasy being used at some point, I may have just happened to miss that one), it's incredibly unlikely that WotC would imagine for a second that OGL 1.1 gives them the actual rights to use any of that IP and would not make the mistake of trying to, even if the text of OGL 1.1 implies that they can, so unless they actually go ahead and violate anyone's IP rights, I can't see how any of those companies would want to or even be able to do anything.

We're back to what Hasbro/WotC know they can get away with, vs what they want us to think they can get away with

 

[Slit518]

Out of that list, I can likely check Disney off straight off the bat - I'm not aware of any Star Wars products that were produced using the OGL. The d20 system, yes, but under a separate license (both for the RPG and for KotoR).

With all of the rest, although they have their IP used in OGL 1.0a products (or rather, I'm aware of everything other than Final Fantasy being used at some point, I may have just happened to miss that one), it's incredibly unlikely that WotC would imagine for a second that OGL 1.1 gives them the actual rights to use any of that IP and would not make the mistake of trying to, even if the text of OGL 1.1 implies that they can, so unless they actually go ahead and violate anyone's IP rights, I can't see how any of those companies would want to or even be able to do anything.

We're back to what Hasbro/WotC know they can get away with, vs what they want us to think they can get away with

I don't know how much it would/could effect Final Fantasy, especially in its current state. But, it started out as a game which was D&D based and borrowed heavily from it. Final Fantasy even has Mind Flayers in it. Which, oddly enough, aren't OGL, but, that is another sticky situation.

 

[Bill Zebub]

To bring suit, you have to state grounds under which relief may be granted. "They're being bleepheads!" does not count, even if they are bleepheads.

Wait...that's not against the law?

WHAT KIND OF SOCIETY DO WE LIVE IN!?!?!?!

 

[Umbran]

Moved to appropriate forum, added appropriate tag.

 

[pemerton]

I don't know how much it would/could effect Final Fantasy, especially in its current state. But, it started out as a game which was D&D based and borrowed heavily from it. Final Fantasy even has Mind Flayers in it. Which, oddly enough, aren't OGL, but, that is another sticky situation.

Does Final Fantasy currently rely on a licence on the terms of the OGL v 1.0a? If not, I don't see how any of this affects that publisher.

 

[Sacrosanct]

The only way I can see it working is if Hasbro revokes the OGL, keeping people from selling their OGL stuff, then it goes to court and it's ruled that Hasbro never had the right to revoke the license. Then you have to prove how much you lost in sales between the two points in time.

I don't know the legality of it, but I think it stands to reason that most 3PP were of the understanding that the OGL could not be revoked. Heck, I literally just spend upwards of $60K making a book using the OGL that just came out, so revoking it now would be...very untimely for me. Especially since I just got the inventory of books a month ago and now I might not be able to sell them?

Hey Hasbro, buy up my inventory if you're gonna pull that nonsense.

 

[pemerton]

The only way I can see it working is if Hasbro revokes the OGL, keeping people from selling their OGL stuff, then it goes to court and it's ruled that Hasbro never had the right to revoke the license. Then you have to prove how much you lost in sales between the two points in time.

I can't give you legal advice, but can speak to some of the general legal issues in play.

Hasbro/WotC have not purported to revoke any licences issued on the terms of the OGL, as best I can tell. And I am one of those who think the better view is that their is a good reason for this, namely, that they lack any legal power to do so.

But suppose they do so purport. If licensed publishers continue to publish relying on their licence from WotC, WotC would have to commence the suit arguing that the licence is in fact revoked and hence that the publisher is infringing. The licensee publisher would plead the licence in their defence.

I haven't heard of any scenario yet in which a 3PP has a good reason to commence against WotC, which to me would sound quite a difficult undertaking.

 

[Slit518]

Does Final Fantasy currently rely on a licence on the terms of the OGL v 1.0a? If not, I don't see how any of this affects that publisher.

I don't know (probably not), but, I posted them in this in case they would be effected. Who knows how tangled the law and stuff could get?

 

[Darkholme]

I don't know how much it would/could effect Final Fantasy, especially in its current state. But, it started out as a game which was D&D based and borrowed heavily from it. Final Fantasy even has Mind Flayers in it. Which, oddly enough, aren't OGL, but, that is another sticky situation.

Final Fantasy has had mindflayers long before there was an OGL. It's been using them since Final Fantasy IV in 1991.

I suspect D&D has missed their chance to pursue that one, but I am not a lawyer.

 

[Aspirinsmurf]

Final Fantasy has had mindflayers long before there was an OGL. It's been using them since Final Fantasy IV in 1991.

I suspect D&D has missed their chance to pursue that one, but I am not a lawyer.

I think it's the word "illithid" and not the concept of a mind flayer that they've specifically claimed as PI under the old OGL 1.0, which I've assumed to mean that they might claim it as an unregistered trademark. But nowadays, it seems like they think that banalities like owlbears and magic missiles are "quintessentially" D&D and off-limits, and that's just opening the gates to hell going forward.

 

[Darkholme]

But nowadays, it seems like they think that banalities like owlbears and magic missiles are "quintessentially" D&D and off-limits, and that's just opening the gates to hell going forward.

Yeah - that's going to be a mess.

 

[GMforPowergamers]

I haven't heard of any scenario yet in which a 3PP has a good reason to commence against WotC, which to me would sound quite a difficult undertaking.

On TV shows (and based on how they handle fields I know I have negative trust in them being right) when big companies go after little fish, sometime the little fish can STILL band together and ask the judge to combine cases in a way MAKING a class action defense... is there ANYTHING in reality like that?

In case I am not clear my hypothetical law school question is, if Big Company A sues little company B, but it is for something that little company C D E F G H I and J are all doing too, can they all bind together at this point AFTER company A sues?
Would it change things if BIg Company A was suing some or all of C D E F G H I and J?

 

[mellored]

Considering nothing legally happened, there is no grounds for a law suit.

Also, class action suits only give lawyers money.

 

[ECMO3]

Considering nothing legally happened, there is no grounds for a law suit.

Also, class action suits only give lawyers money.

Yes, but the point is to threaten to take WOTC's money (and give it to the plaintiff's lawyers).

WOTC is concerned enough about this that they put an exclusion to it in their new OGL 1.2.