Hypothetical: I ignore OGL 1.x

[Matt Thomason]

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

I have no idea about how you can actually legally respond to a C&D that says the sender has rights they don't actually have, so I've put it as a possibility rather than a certainty

I would imagine there must be some legal backlash to a C&D that has no weight, or we'd all be sending them to everyone all the time... (wait, was I supposed to be sending them? Nobody told me!!!)

At the very least, however, in this specific case I would think likely sue for breach of contract due to them not following the terms of the 1.0a license that requires them to give you notification and 30 days to fix. Whether you would win is another matter, and depends of course on whether that 1.0a license is still valid and authorized. It looks like whatever possible route is taken, it has to come back to that.

 

[Ruin Explorer]

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

I'm pointing out there's a Catch-22. They can just say your lawsuit is disqualifying, and the only way to get them to change their mind would be to sue them which would be disqualifying.

 

[Reynard]

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.

Okay up to this point.

• Publisher responds they have no intention of either C-ing or D-ing.

In my hypothetical I don't respond at all, I just keep fulfilling those analog mail orders.

• WotC takes publisher to court for infringing their copyright

But this still probably happens

• Publisher presents Exhibit A, OGL 1.0a as their evidence they had a license.

Not yet, and not the point of the hypothetical.

Let's say we get to court. Does the act of suing me mean I have to stop? Does WotC have to ask a judge to tell me to stop? Would the judge do that? Would I get charged with contempt if I didn't, or some other crime?

 

[Matt Thomason]

Let's say we get to court. Does the act of suing me mean I have to stop? Does WotC have to ask a judge to tell me to stop? Would the judge do that? Would I get charged with contempt if I didn't, or some other crime?

In order to make you stop before the trial comes to a decision, they would have to obtain a temporary injunction. (If the court case eventually rules in their favor, I believe you get issued a permanent one).

Violation of an injunction does indeed seem to get charged with contempt of court.

The legal minds on the forum so far appear to be of consensus that WotC could not meet the "three pillars" argument to obtain one, and both they and you would just continue as-is until the decision was made.

 

[Reynard]

In order to make you stop, they would have to obtain an injunction.

The legal minds on the forum so far appear to be of consensus that WotC could not meet the "three pillars" argument to obtain one, and both they and you would just continue as-is until the decision was made.

What are the three pillars?

 

[Matt Thomason]

What are the three pillars?

That is something we'd need a legal expert to explain I've seen it mentioned, but don't really know the details other than it's three tests the Judge will apply to see if an injunction is reasonable.

 

[Ruin Explorer]

What are the three pillars?

Prima facie case, balance of convenience, and irreparable injury, and you have to get all three of them. TSR for example tried to get an injunction on GDW's Dangerous Journeys and could not because it failed on the second two.

They can be phrased differently in different places but I believe they're essentially the same (lawyers pls correct), like in England & Wales it's:

1. The party applying for the Injunction must have a valid underlying claim

It must be able to show that it has legal rights which have been or are likely to be undermined by the other parties action, or that the other party has behaved, or is likely to behave in an unconscionable manner. A substantive cause of action (i.e. one capable of founding an action before the Court) must exist

2. Injunctions are a discretionary remedy

An injunction is an equitable remedy, which means that:

• The Court is never obliged to grant an injunction and will use its discretion to only grant an injunction where it appears to be just and convenient to do so;
  
  ii. An injunction is subject to the usual equitable rules, in particular:
  • Any delay in applying for an injunction can damage seriously the prospects of obtaining one; and
  • The party applying for the injunction must have "clean hands" (i.e. they must have acted properly themselves).

3. Damages must not be an adequate remedy

 

[Reynard]

Prima facie case, balance of convenience, and irreparable injury, and you have to get all three of them. TSR for example tried to get an injunction on GDW's Dangerous Journeys and could not because it failed on the second two.

So let's say "no" and I can keep selling my stuff. Now what? Obviously WotC still wants me to stop.

 

[Haplo781]

So let's say "no" and I can keep selling my stuff. Now what? Obviously WotC still wants me to stop.

Now you spend the next 5 years of your life in court and get ruined even if you win.

 

[mamba]

I'm pointing out there's a Catch-22. They can just say your lawsuit is disqualifying, and the only way to get them to change their mind would be to sue them which would be disqualifying.

I am not sure that is even true, I am not bound by their 1.1 license at that point, so I am not violating it. Maybe they terminate me over it when I try to enter it (they can do so anyway, so the reason is moot), maybe they won't, because if they do the next round is the actual copyright case.