OGL Hypothetical: I ignore OGL 1.x

S'mon

Legend
Ah, no, you skipped a step there. Before “Publisher presents Exhibit A, OGL 1.0a as their evidence they had a license” there’s the “Discovery” bit.

In discovery WotC’s lawyers will ask you to hand over a bunch of documents. These documents may hurt your case (even if you think they don’t). You will probably be legally obliged to hand over those documents (and will essentially auto-lose if you don’t). They may also ask for documents that you don’t have to hand over. Figuring out which is which will require an expensive lawyer. And if you can’t pass on the documents (they’re lost, destroyed, never existed in the first place), you probably need a lawyer who knows how to deal with that.

And of course discovery allows you to ask them for stuff - but what stuff should/can you ask for? Again: you need a lawyer.

OK so I'm not a US lawyer. I'm definitely not a litigator. I'm just an academic who teaches Law.
But to my mind, the legal issue in question would be: "Can WoTC legally revoke OGL 1.0?"
I have trouble seeing what documents the respondent could be holding that could possibly make any difference to that question.
I'm guessing the tactic for WoTC here is to throw up a bunch of squid ink on legally irrelevant evidentiary questions that do require Discovery? But surely a good lawyer for the respondent can draft a position where it's clear what the question at issue is? How can they force Discovery over an issue that's not in question?

Edit: Conversely in a case like GW vs Chapter House, one relevant issue is whether actual copying occurred. That's a question of fact, for which Discovery is relevant.

Edit 2: I guess they would want the focus to be on your copying of copyright material in the SRD, and how much was taken. That's a question for which Discovery is relevant. But if you don't dispute that you copied, then it goes back to the legal question of the licence.
 

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pemerton

Legend
I just want to add a another line of defense in addition to the "can they end authorization", and copyright question: You could try to argue that even if wizards are found to be able to end "authorization", it might not prevent you from exercising your section 4 rights, but rather just limit your section 9 rights.
I don't think this makes much sense. I don't see what the argument is that WotC can selectively suspend elements of their licence agreement with the (hypothetical) Reynard.

If WoTC argue they have the power to unilaterally revoke OGL v1.0a, doesn't that change the scope of the copyright claim too? The OGL places limits on how licensees can use content. But if that doesn't apply, the rules are different too. Aren't they?
I don't think I follow. WotC's claim is that (hypothetical) Reynard is infringing their copyright. Reynard's defence is that to the extent that his work infringes WotC's copyright, they have licensed that via the OGL.

If the contractual defence succeeds, the copyright claim does not proceed. If the contractual defence fails, then I think Reynard would settle rather than try and defend a very complex IP matter; but if for whatever reason chooses to proceed, the copyright case gets argued and resolved. There may be practical questions here, about when the settlement negotiations take place relative to the leading of evidence, etc; or whether the parties can agree to try the contract issue only, on the basis that (hypothetical) Reynard concedes the copyright issue and has a conditional settlement with WotC on that point. This is where a lawyer who knows how to run litigation becomes important!

In any event, I don't see how the nature of the copyright claim varies depending on what happens in the contractual argument. (Subject of course to @S'mon's fair point that this is all highly speculative.)
 

pemerton

Legend
I'm not a litigator in any jurisdiction, but I think @S'mon is correct about discovery in his post not far upthread. The legal issue will be whether or not the defendant - ie hypothetical Reynard - enjoys a contractual licence, which then provides a defence to the breach of copyright claim. This in turn will depend on what the outcome is of the question S'mon identifies.

As long as the defence makes it clear that that is the entirety of their defence - which would probably mean, in practice, conceding the copyright point - then what documents is the plaintiff going to insist on discovering? It's an issue of contractual interpretation. As defendant, hand over all your copies of the OGL, your published books, your Wayback Machine printouts of the FAQ, etc, and bring on the actual trial!

It becomes harder for the plaintiff to stall if the defendant is urging them to bring it on, I think.
 

macd21

Adventurer
OK so I'm not a US lawyer. I'm definitely not a litigator. I'm just an academic who teaches Law.
But to my mind, the legal issue in question would be: "Can WoTC legally revoke OGL 1.0?"
I have trouble seeing what documents the respondent could be holding that could possibly make any difference to that question.
I'm guessing the tactic for WoTC here is to throw up a bunch of squid ink on legally irrelevant evidentiary questions that do require Discovery? But surely a good lawyer for the respondent can draft a position where it's clear what the question at issue is? How can they force Discovery over an issue that's not in question?
Well right off we see part of the problem here. Because you're not a lawyer, you have trouble seeing what documents you could be holding that could possibly make a difference to that question. So if WotC demand that you hand over all of your accounts, meeting notes, IP files (containing drafts of your work), emails (personal and business), text messages, legal advice, mortgage agreement, car rental records etc, along with all of those of your employees and family members... can you say no?

And no, the legal issue in question would be "have you infringed on WotC's IP?" Your defence is that the OGL allows you to use WotC's IP, but that's not the only angle they could get you on. In any case, even if they can't revoke the OGL, you could still be in breach of the OGL itself (the OGL specifically doesn't cover all of WotC's product identity), so they have a right to look for evidence to that effect.
 

S'mon

Legend
It's paranoid Hollywood nonsense with absolutely no basis in reality.

When I look at actual US cases I'm familiar with, and compare that with how people talk about how the Law works in the USA, I often feel like they seem to be living in "Hollywood bizarro world with no basis in reality". OTOH some people like Snarf Zagyg who appear to be US litigators do sometimes say stuff about litigation that seems more like the Hollywood version, than the impression I get from reading US court decisions, or about US cases more generally. And I do see some weird stuff in some US court judgements, at least court of first instance judgements, like the Chapter House judge who thought GW had a copyright in large shoulderpads. So I dunno. All very confusing to this poor London law lecturer. :LOL:
 

S'mon

Legend
Well right off we see part of the problem here. Because you're not a lawyer, you have trouble seeing what documents you could be holding that could possibly make a difference to that question. So if WotC demand that you hand over all of your accounts, meeting notes, IP files (containing drafts of your work), emails (personal and business), text messages, legal advice, mortgage agreement, car rental records etc, along with all of those of your employees and family members... can you say no?

Are you a trial lawyer? I'm not, but I do teach commercial law. So if you can explain the legal basis on which you as WoTC's lawyer would be able to demand all this stuff, I would find this very useful for my understanding.
 

macd21

Adventurer
Something to remember is that you don't actually need the OGL to publish DnD compatible materials. People have done so without the OGL and gotten away with it - most notably Kenzerco. But Kenzerco had an advantage that most RPG companies don't - the head of the company is a lawyer with a great knowledge of IP law. He went up against WotC and won, because he didn't have to spend a huge amount of money on lawyers. WotC left him alone after that.

So, again: you don't need the OGL to publish DnD material. The purpose of the OGL was really just to give RPG publishers comfort that WotC wouldn't sue them for doing so and then bleed them dry with legal fees, even though the RPG company hadn't done anything wrong.
 

S'mon

Legend
I'm not a litigator in any jurisdiction, but I think @S'mon is correct about discovery in his post not far upthread. The legal issue will be whether or not the defendant - ie hypothetical Reynard - enjoys a contractual licence, which then provides a defence to the breach of copyright claim. This in turn will depend on what the outcome is of the question S'mon identifies.

As long as the defence makes it clear that that is the entirety of their defence - which would probably mean, in practice, conceding the copyright point - then what documents is the plaintiff going to insist on discovering? It's an issue of contractual interpretation. As defendant, hand over all your copies of the OGL, your published books, your Wayback Machine printouts of the FAQ, etc, and bring on the actual trial!

It becomes harder for the plaintiff to stall if the defendant is urging them to bring it on, I think.

I may be missing something, but I think either (a) the rules on Discovery are completely different in the USA than in England & Australia, or else (b) some people here are severely misled.

Edit: I did just read the Wikipedia article, which was somewhat enlightening.
 
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macd21

Adventurer
I'm not a lawyer, but a number have commented on how this would likely go.

The general provision regardind discovery for Washington are here. In summary:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

There are certainly grounds by under which you can refuse to hand over materials (ie they're not pertinent etc) and try to get a speedier trial. But in order to make that case, you need a decent lawyer, which is expensive. And all that does is get you past the discovery phase. Without a decent lawyer, you're just going to lose the trial itself.
 

pemerton

Legend
I may be missing something, but I think either (a) the rules on Discovery are completely different in the USA than in England & Australia, or else (b) some people here are severely misled.

Edit: I did just read the Wikipedia article, which was somewhat enlightening.
I skimmed it. It seems a bit of (a) and a bit of (b). If the question at trial is purely a question of law - ie the status of the OGL - and perhaps a question of fact about the content of published works, I'm still at a bit of a loss to see what the issues in discovery would be.

Hand over copies of your works, plus all the material related to the contract - which by its very nature does not have complex and opaque circumstances of formation. I noticed that the Wikipedia mentions torts cases and witnesses. In the sort of case we're discussing here, there does not seem to be the sort of evidence that would be typical in a negligence case, and I don't see that any witnesses would need to be called, unless the defence is super-keen to call Ryan Dancey.

If the defendant concedes on the copyright point, then do the US rules nevertheless permit the plaintiff to force the defendant to adduce evidence in respect of it?
 

S'mon

Legend
I'm not a lawyer, but a number have commented on how this would likely go.

The general provision regardind discovery for Washington are here. In summary:
There are certainly grounds by under which you can refuse to hand over materials (ie they're not pertinent etc) and try to get a speedier trial. But in order to make that case, you need a decent lawyer, which is expensive. And all that does is get you past the discovery phase. Without a decent lawyer, you're just going to lose the trial itself.

Yes, you probably need a lawyer just to explain, in appropriate legalese, that you are not defending any copyright claim, that you certainly did copy, as permitted under the OGL, and that your defense is that you have a licence under the OGL. That does not seem like a difficult thing for a lawyer to do, though.

If you are not disputing any claims for which Discovery is relevant, the two sides are agreed on the facts. I cannot see any basis for forcing Discovery.

(BTW this does again raise the point how much more vulnerable companies are when they rely on Copyright rather than Contract. It's easy to see how Discovery is relevant when a company tries to make a D&D-like RPG without infringing copyright in D&D.)
 

S'mon

Legend
I skimmed it. It seems a bit of (a) and a bit of (b).

Yes, that's my impression too. (a) The US system clearly is different than ours, much more within the control of the parties, with far less oversight from the court. (b) I think most people just kind of wave their hands vaguely in the direction of Law and go "The Horror! The Horror!" :D
 

S'mon

Legend
I'm not a lawyer, but a number have commented on how this would likely go.

The general provision regardind discovery for Washington are here. In summary:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action

That's the thing. You can't demand Discovery for matters not in dispute. If the WoTC claim is that they have the legal right to "de-authorise" OGL 1.0, nothing the respondent is holding can affect the truth of that claim.
 

Reynard

Legend
Yes, you probably need a lawyer just to explain, in appropriate legalese, that you are not defending any copyright claim, that you certainly did copy, as permitted under the OGL, and that your defense is that you have a licence under the OGL. That does not seem like a difficult thing for a lawyer to do, though.

If you are not disputing any claims for which Discovery is relevant, the two sides are agreed on the facts. I cannot see any basis for forcing Discovery.

(BTW this does again raise the point how much more vulnerable companies are when they rely on Copyright rather than Contract. It's easy to see how Discovery is relevant when a company tries to make a D&D-like RPG without infringing copyright in D&D.)
So Hypothetical Reynard gets to this stage: WotC sues and my defense is I have a license, the OGL 1.0a right here, and WotC says No we deauthorized that. Is the result up to judge then?

What I mean to ask is, if it got to that point, who would actually have the authority to decide whether WotC could de-authorize the OGL 1.0a? And could a tiny little case about one guy selling pamphlets by mail actually resolve the thing? Or would it blow up into a whale nother THING?
 


pemerton

Legend
What I mean to ask is, if it got to that point, who would actually have the authority to decide whether WotC could de-authorize the OGL 1.0a?
That is a question of law. It will be decided by a court, on the basis of legal argument.

In the systems that @S'mon and I are familiar with, all questions of law are settled by judges - juries are only triers of fact, not law. And in the scenario we are envisaging there are no questions of fact at issue.

I'm not sure how closely the US follows this model. But I find it hard to imagine a US jury being charged with answering a question of contractual interpretation.

And could a tiny little case about one guy selling pamphlets by mail actually resolve the thing?
In relation to that guy, yes. There could be at least two reasons why other publishers might not have their matters resolved by it:

(1) The context of their use of the OGL v 1.0/1.0a might be different, which could lead to a different conclusion about its interpretation;

(2) The decision made in relation to hypothetical Reynard may not be binding on other courts hearing similar matters, and so they might have to reach their own conclusions about the legal question.
 

S'mon

Legend
So Hypothetical Reynard gets to this stage: WotC sues and my defense is I have a license, the OGL 1.0a right here, and WotC says No we deauthorized that. Is the result up to judge then?

What I mean to ask is, if it got to that point, who would actually have the authority to decide whether WotC could de-authorize the OGL 1.0a? And could a tiny little case about one guy selling pamphlets by mail actually resolve the thing? Or would it blow up into a whale nother THING?

Yes, it's up to the judge. That's what judges do. (edit: with the provisos Pemerton put in above)
WoTC could appeal if they lost, claiming the judge got the law wrong. They would need leave to appeal from the superior court. They could try to get another judgement in another jurisdiction. This is usually difficult once you've already lost, and would not overturn the original judgement in its home jurisdiction.

I have seen the same case go differently in different jurisdictions, but that's usually with Patent cases like Kirin-Amgen or Improver going differently in Germany & England, due to different ideas on the scope of Patent claims. With a Contract case, it might go differently in say France vs Washington State, but probably not Washington State vs New York State, AFAIK.
 


mamba

Hero
So Hypothetical Reynard gets to this stage: WotC sues and my defense is I have a license, the OGL 1.0a right here, and WotC says No we deauthorized that. Is the result up to judge then?

What I mean to ask is, if it got to that point, who would actually have the authority to decide whether WotC could de-authorize the OGL 1.0a? And could a tiny little case about one guy selling pamphlets by mail actually resolve the thing? Or would it blow up into a whale nother THING?
yes, the judge will get to decide. Both parties will want to present opinions and cases that show that they are correct in their interpretation. This is not the equivalent of a coin toss with two bystanders, both want to convince the ‘coin’ what side to land on.

Yes, one court decision (or the appeal…) can decide that, assuming there is a court ruling rather than WotC folding when they feel they are about to lose and just letting your pamphlet live.
Otoh that still does not bode well for future C&Ds by them, if the other side is willing to play ball instead of just paying them off so they go away.
 

Matt Thomason

Adventurer
What about a publisher in the EU?

Oh, you just HAD to go and make an already complex issue even worse :D

The only thing I feel any confidence in saying here, is that being in a different country to the person suing you does make it a little more likely you're at the bottom of their list if they have a number of people to go after ;).

I think they also have to take you to court seperately in each territory you're distributing in, so they can't just go after you in the US and have the resulting injunction apply worldwide. Of course, destroying your US market is likely enough to kill most products.

Whether the EU counts as one territory for this purpose or seperate countries, I have no idea.
 

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