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Message: <blockquote data-quote="Steel_Wind" data-source="post: 8890534" data-attributes="member: 20741">You are jumping in on a lengthy discussion where I have been careful to express, multiple times, that nothing is certain in litigation.  I have said so both in this thread and in threads on the main page in which you have participated, too. I trust you saw those posts?I have also mentioned above, indeed, one or two posts after those you took issue with, that framed the outcome as in terms of likely and unlikely. My point: we are not in disagreement about the concept of uncertainty in litigation.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. 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.ORThat 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.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. I don't have to be a "careful lawyer" to hold myself back from expressing that. I'm clearly not the judge -- but there's no way that is at all a likely outcome - and no lawyer, imo, would say it was. Kit Walsh didn't either.  Again, I assume that was because she simply didn't know about those highly unusual facts and she was confining herself to an analysis of the language of the OGL 1.0a without reference to the conduct of the parties under that agreement over a course of decades. Again, as [USER=1772]@bmcdaniel[/USER] 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.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.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.     </blockquote>

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