That said, Kit Walsh did not attempt - in any manner - to delve into the highly unusual history - with facts that are at an absurd law school exam level - of the dealings between WotC and Paizo and the events that surrounded the publication of Pathfinder 1 under the 1.0a OGL. I assume that is very probably simply because she didn't know about them.
Kit Walsh wrote a brief column. In it, she wrote the following:
As a threshold question, can Wizards of the Coast legally revoke their license? Other open licenses like Creative Commons licenses and the GPL are clear that the rights they grant are irrevocable. At the very least, this means that once you rely on the license to make something, you can keep making it and distributing it no matter what the copyright owner says (as long as you comply with the terms of the license).
The OGL does not say that it is irrevocable, unfortunately. It’s possible that Wizards of the Coast made other promises or statements that will let the beneficiaries of the license argue that they can’t revoke it, but on its face it seems that they can.
Some have pointed to the word “perpetual” to argue that the license is irrevocable, but these are different concepts in the law of licenses. Perpetual means that the license will not expire due to time passing, that’s all.
I would say that this is all accurate, in a brief statement, and correctly caveated. Certainly not worth ... well, you well not exactly kind, were you? You also spent some time misstating her qualifications.
In short, you were kind of being a jerk about what she wrote - and unnecessarily so. Just because you feel strongly about something doesn't mean you have to rubbish other people.*
I phrased that it was utter nonsense that a court would accept, on a balance of probabilities, that WotC knew that had the power to de-authorize OGL 1.0a at a time when they found themselves competing with Paizo and driven from their leadership place in the marketplace, when all they had to do was make an announcement to de-authorize it and it was over. Well, then. They simply chose not to do it and that explains it best.
Again, I have repeatedly noted that I do not understand (a) you insistence on using Canadian law for everything, and (b) why you keep using the standard for a
temporary injunction as if it was somehow dispositive for litigation?
We have no idea if Hasbro would even move for a temporary injunction!
That the OGL 1.0a was at all times understood to be irrevocable; that WotC itself had that understanding; that it had held out the OGL 1.0a to others on its own website explicitly saying so; that is had also said so through its corporate officers to other licensees and to those in the media; and, that because the OGL 1.0a was irrevocable THAT was why WotC never purported to "de-authorize" it in 2008 when it found itself competing with Paizo. Add to this, comments from former officers of WotC as to their intention before the OGL was even reduced to writing in terms of what Dancey had requested of counsel to prepare - and why.
One thing I have learned, and I think most
American attorneys will tell you, is that you rely on parol evidence and equitable principles (such as promissory estoppel) as a last resort. Actual practice in American courts (how the law is applied, even when the standards appear the same) is
very different than Canadian or UK courts.
Is the explanation the court will accept for this choice simply that they simply chose not do so, in the context of the commercial competition between WotC and Paizo since 2008 (and especially 2008-2014?) That is utter nonsense.
This has no bearing on the contract. I appreciate that you feel strongly about this, but bolding and italicization doesn't make
post hoc parol evidence more relevant.
Again, as
@bmcdaniel notes in terms of interpreting this agreement, we go first to the words, but then if there is any basis for ambiguity -- the court looks to the conduct of the parties in how they conducted themselves under the agreement. Ambiguity will be all but certain to be alleged by the defendant(s). Contracts are not statutes - the intention of the parties is the most important consideration, and the evidence the parties treated it as irrevocable is frequent and explicit in this case. All of this unusual fact evidence is
likely fatal to WotC's position.
You keep saying, "{I}
n this case." What case?
You say that something is fatal to WoTC's position. What position?
One more time-
THERE IS NO COMPLAINT.
WE DO NOT KNOW WHAT ANY FINAL OGL 1.1 WILL STATE.
WE DO NOT KNOW WHAT LAW APPLIES.
WE DO NOT KNOW WHAT HASBRO'S POSITION IS, OR THEIR THEORY OF THE CASE.
WE DO NOT KNOW THE FACTS ALLEGED OR THE CAUSES (and there will be more than one) OF ACTION.
WE DO NOT KNOW THE DEFENDANT(S).
I try to be careful; in my analysis- and that's when I have access to little things like, oh, a copy of the filed complaint!
As for who WotC will be having that fight with -- it is entirely probable that WotC would prefer to choose to have that fight with some other litigant other than the one corporate defendant who is best able to afford to fight them -- and who because of their unique history, has the best case, and the most to lose. All true.
However, as I also mentioned earlier in this [72 page?] thread, as the OGL 1.0a contract under discussion is the same contract Paizo relies upon to this day, Paizo would have a clear interest, and generally have a right (but no obligation) to intervene regarding that contractual issue if there is some declaration being sought under it or about it which could affect Paizo's interests. I think there is a good chance Paizo would do so if it felt it could to its advantage - but that's ultimately up to Lisa Stevens and Paizo's lawyers and nobody else but them. It is by no means certain, at all, that they would. I think we agree on that, too.
Yeah, it doesn't work like that in the United States. You can't just intervene in a random case- which, again, we don't know what is being pled! I can't keep saying this but ... you're asking me to agree that Paizo would be able to intervene in a case, filed in another jurisdiction, against another defendant, with causes of action and evidence that might not apply to Paizo?
I'll pass on that invitation to agree, thank you!
And yes, WotC could choose to settle its affairs under the OGL 1.0a with Paizo in a manner that was to the advantage of Paizo - and to the disadvantage of everybody else. I don't think it's helpful to go down that road and feed that "settlement conspiracy" here, but sure, it's possible.
I wasn't talking about pre-suit settlement. I was talking about what happens, in civil litigation in the United States. Cases settle, and they do so for a very good reason. The reason I mention that is because some people keep saying that a court (ahem) is going to resolve this, without first realizing that in the United States, for most issues we have juries, and (in addition!) any action is unlikely to be resolved by a trial.
*As a reminder, the reason I got involved again was because you wrote the following:
I don't agree with the view of a civil rights attorney, no matter the law school she attended, on that topic. ... I don't care if Kit Walsh got a law degree from Harvard -- she is (most likely) either uninformed of the extreme historical commercial facts of how the parties acted under the OGL 1.0a from 2008 through 2014, or she's a civil rights attorney who is clearly out of her depth - and not a commercial litigator - whose opinion is not worth one red cent.
Asa a reminder, Kit Walsh is an experienced litigator, having previously litigated IP numerous IP cases in multiple jurisdictions for a well-known IP firm in the United States prior to joining the EFF. While she is, as you put it, a mere J.D. from Harvard, she also has a B.S. in neuroscience from M.I.T.- which personally I find much more impressive!
