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Message: <blockquote data-quote="Steel_Wind" data-source="post: 8890164" data-attributes="member: 20741">Oh every jurisdiction would do that. That's part of the test on these facts. It's all part of the merits.In a motion or application to grant an in junction (in some US jurisdictions a Temporary Restraining Order pending trial, or "TRO"). It's a three part test:1.  The MeritsA) The applicant has a strong prima facie case.  This brings in ALL of the facts and evidence on the OGL 1.0a and how they conducted themselves under it - the merits go here - not just on what the license says in terms of irrevocable, but where else they said it -- and how they acted under it to demonstrate they clearly also believed it was irrevocable. Kit Walsh never mentions any of this context re: Paizo - and probably doesn't know about those highly unusual facts.  All of that potentially extraneous evidence goes in here. That is fatal evidence, imo.B) Alternatively, the applicant does not have to prove a strong prima facie case, simply the lesser standard that there is a "serious question to be tried"  Same merits analysis, but the bar they have to cross is lower. This test DOES vary by jurisdiction.2. Irreparable HarmThe applicant will suffer irreparable harm. Irreparable harm is the sort of harm that cannot be compensated for by monetary damages.  This is likely, on these facts, to be the end of WotC's case for an injunction. This branch of the test doesn't vary by jurisdiction. On the unique facts of this case, we have seen what did happen in the past when Paizo used the 3.5 SRD under the 1.0a OGL. They competed successfully in the marketplace, WotC withdrew its products and ultimately came back with 5e.Meanwhile, we have seen WotC demonstrably flourish under the OGL 1.0a for 23 years,  You can't hide that and there's no dispute over it.The real point here is that you get to harp on the fact that WotC clearly felt so bound by its previous position that the 1.0a OGL was irrevocable that it never, not once, over the course of 6+ years from 2008-2014 suggested that Paizo was no longer authorized to use the OGL 1.0a, even as that caused them to withdraw form the market place as they were beaten at their own game. Why didn't they unauthorize it then? Because they just didn't want to say it -- or because they believed that they couldn't? Practically speaking? That evidence is devastating. Kit Walsh never mentions it. It is likely because she was not familiar with it (the evidence was absurdly EXTREME) and instead treated this as a simply contractual analysis based on its wording. You can't do that with this sort of context and circumstances. It all goes in - and the court is all but certain to hear it at this stage.3. Balance of ConvenienceHere the court weighs the effect of the injunction vs not granting the injunction. In the case of the OGL 1.0a, the entire industry relied upon it. There are literally hundreds (and maybe more than a thousand or even two thousand -- I don't really know) of individual businesses, great and small, who rely upon the continued validity of the OGL 1.0a. In every one of those cases, it's the same contract at issue. That is a LOT of people adversely affected by granting the injunction motion.  The balance clearly favours not granting it.In order to win an injunction, WotC must succeed and pass every branch of the three branch test. Fail on even one of them? The application for an injunction will be dismissed.There is  good chance that WotC fails not on just one branch, but depending on the jurisdiction they select? They could easily fail on all three.  THAT is a highly unusual place to be as a litigant asking for an injunction. I've been on injunction motions where 2 of the three are in doubt, but all three? Never. Mind you, I also practice in a jurisdiction where costs are paid to the other side when you lose an injunction motion, and those costs aren't small as they usually are in most American jurisdictions. Elsewhere in the common law world, those costs follow the event and are both large and generous on any injunction motion. You can find yourself writing a cheque for $100,000+ to several times that amount to the other side when you lose the motion (even though the underlying case continues).  In my experience, even wealthy litigants don't like throwing away money like that (spoilers: that's how they became wealthy in the first place). I don't offer this as a reason why WotC would not bring the injunction motion, simply as why motions which are all but doomed to fail are not brought outside of the American context.  It doesn't change the test or the result.</blockquote>

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