Hypothetical: I ignore OGL 1.x

[Matt Thomason]

they have to first prove that 1.0a can in fact be revoked, otherwise no copyright was violated

agreed, they might shoot themselves in the foot and just prove that the OGL was not needed in the first place

On the latter - Ryan Dancey said the day before Paizo's announcement that pushing that WotC risked losing everything if they pushed too hard with trying to deauthorize 1.0a. I have a feeling he may have had a hint or two from his Paizo contacts, but it appears he's right.

 

[mamba]

okay... so you are going to try to go up against a major corporations law team... with what again?

I am not doing anything, but if you follow the premise, then yes, that is exactly what has been asked.

I am just curious: assuming the OGL 1.1 or 2.0 goes into effect and says that you can't make new products using OGL 1.0a, but I go ahead and publish a -- say, just for argument -- 5E compatible monster book under the OGL 1.0a. What happens (assuming WotC notices of course)?

And by "what happens" I mean "what is the series of events that follows this move".

We were already after you received a C&D, ignored or rejected it, and decided to go for it...

 

[Ruin Explorer]

It's an 'open' license so who is going to stop you...

The clause which specifically says you can't do a lawsuit against WotC lol? I mean I guess you could use a lawsuit to try and get that clause overruled?

 

[Ruin Explorer]

They don't actually.

Yeah I was wondering about that. I think you'd use it as a defence rather than them having to prove that necessarily.

 

[mamba]

The clause which specifically says you can't do a lawsuit against WotC lol? I mean I guess you could use a lawsuit to try and get that clause overruled?

I didn't, I was using 1.0a and they sued me over that.

 

[mamba]

Yeah I was wondering about that. I think you'd use it as a defence rather than them having to prove that necessarily.

how is that any different. If you use it as a defense (which I do agree with btw, that is exactly my scenario even when I did not spell it out), they still have to prove that defense wrong, which means they have to prove that they could in fact revoke it and have done so. I mean, you are not just going to say 'oh, I did not know that' and roll over

 

[Matt Thomason]

So just because things have gotten a little confused and crossed over, lets summarise the points so far.

We have a hypothetical timeline in which the following happens in sequence:

• WotC announces they are deauthorizing OGL 1.0a
• A publisher publishes something new under OGL 1.0a anyway
• WotC sends a C&D to publisher.
• Publisher responds they have no intention of either C-ing or D-ing.
• WotC takes publisher to court for infringing their copyright
• Publisher presents Exhibit A, OGL 1.0a as their evidence they had a license.

This now leaves us at the stage where WotC have to show they actually have the power to revoke or deauthorize that license from their licensee, and the mechanism they used to do so.

Or quite possibly, WotC lawyers find a way to delay that step for years and Publisher goes bankrupt from legal fees. Lets not completely rule that option out.

And lets also remember the 1.0a license has that 30 day remedy period. Of course, if the license is not valid, neither is that remedy period. But if it is valid, WotC just violated the terms themselves if they didn't try to use that clause first. And if they did use that clause first, they are presumably admitting the license is valid.

 

[mamba]

Sounds correct to me, but IANAL

I'd even continue (as I did) with

- Assuming WotC shows that 1.0a is revoked, the publisher can accept OGL 1.1, or go to round 2 and say 'now show what copyright I violated'

all provided neither side runs out of money or interest

 

[Matt Thomason]

Sounds correct to me, but IANAL

Me neither, but I'm fairly confident on the timeline. The only possible alternative I can imagine is that Publisher initiates the proceedings themselves, after receiving what they feel is an illegal C&D notice for something covered by their license with WotC - which still ends up with WotC needing to prove Publisher's OGL 1.0a license is somehow invalid.

 

[mamba]

Me neither, but I'm fairly confident on the timeline. The only possible alternative I can imagine is that Publisher initiates the proceedings themselves, after receiving what they feel is an illegal C&D notice for something covered by their license with WotC - which still ends up with WotC needing to prove Publisher's OGL 1.0a license is somehow invalid.

I am not sure what you would be suing WotC over in that case, sending a fraudulent C&D ? Is that a thing? To me the next move after not agreeing to the C&D is on WotC.

Either way, the way to a copyright infringement case goes through proving 1.0a is revoked