OGL Hypothetical: I ignore OGL 1.x

pemerton

Legend
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.
If you are publishing outside the US, I'm not sure that WotC could destroy your US market by suing in the US (assuming mail order as per the original hypothetical). If your sales are taking place outside the US (eg people pay money into your non-US bank account) and then you ship to your customers, how would the US order be enforced against you?
 

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Matt Thomason

Adventurer
If you are publishing outside the US, I'm not sure that WotC could destroy your US market by suing in the US (assuming mail order as per the original hypothetical). If your sales are taking place outside the US (eg people pay money into your non-US bank account) and then you ship to your customers, how would the US order be enforced against you?
Ah, yeah, I was throwing out the hypothetical once the EU issue came up, and started thinking in terms of shipping stock to distributors rather than direct to customers. I may also be mistaken in that it's not distribution but publication that counts, so if I publish in the UK but ship to US distributors to sell to stores, suing me in the US would have no effect?
 

pemerton

Legend
Ah, yeah, I was throwing out the hypothetical once the EU issue came up, and started thinking in terms of shipping stock to distributors rather than direct to customers. I may also be mistaken in that it's not distribution but publication that counts, so if I publish in the UK but ship to US distributors to sell to stores, suing me in the US would have no effect?
It would depend who is a party to the injunction. In the contexts I'm familiar with, it is normally only the litigant who gets injuncted - and you'd be posting your parcels from outside the jurisdiction.

But it may be in the US that courts issue injunctions that govern the whole world. I don't know - we'd need a US lawyer, preferably a trial lawyer, to tell us.

EDIT: By "the whole world" I mean everyone in the jurisdiction, or perhaps everyone satisfying a certain description, even if they're not a party to the litigation.
 
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Matt Thomason

Adventurer
It would depend who is a party to the injunction. In the contexts I'm familiar with, it is normally only the litigant who gets injuncted - and you'd be posting your parcels from outside the jurisdiction.

But it may be in the US that courts issue injunctions that govern the whole world. I don't know - we'd need a US lawyer, preferably a trial lawyer, to tell us.

EDIT: By "the whole world" I mean everyone in the jurisdiction, or perhaps everyone satisfying a certain description, even if they're not a party to the litigation.
Yeah, the more I look into it, the more it looks like it's meant for a writer having a book with, say, both a US and a UK publisher, and the need to take each of those publishers to court and obtain seperate injunctions within the approprate jurisdictions.
 

Matt Thomason

Adventurer
According to the latest leak, if you could get it out within 6 months you would be golden right?
Potentially. Except for many of us, we don't just want to release a product, but keep releasing more products that build on one another for the forseeable future. The OP does not state whether this is the case or not in their hypothetical, but under the assumption they only care about this one release, then that would seem correct.
 

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:
There's definitely some wacky stuff, it just doesn't seem to me to generally be the sort of years/decades long cases we often see being made into movies (which is usually a very specific kind of litigation).

Also haven't you misread GW v Chapterhouse? The shoulderpads ruling went AGAINST GW. GW thought they had a copyright on large shoulderpads - they're the ones who claimed that, no?
 

3. The deep-pocketed losing side keeps appealing to higher courts, which in effect restarts the whole process each time.
Uh-huh, but you need a reason and permission to appeal, at least in virtually all jurisdictions (maybe there are exceptions?), you can't just automagically appeal, and your appeal is often granted on a fairly narrow point, not all the points you were making, so it's just plain wrong to say that "in effect starts the whole process over", especially as discovery is already likely effectively done. An appeal isn't a reset button in civil cases, dude.
Unless the judge rules otherwise.
Yup, but my understanding, and lawyers correct me, is that that's relatively rare, particularly if the person getting sued had some kind of reasonable case, even if they lost. I can't speak for the US, either, but in England & Wales we also have orders that limit the costs that can be claimed from the losing party if they're a lot smaller, specifically to prevent unfair situations (IIRC there are, stupidly, places these don't seem to apply, including libel/defamation, which makes England & Wales an ideal jurisdiction if you want to do some SLAPPs - the government keeps threatening to do something about it, then remembering their donors and friends are among the major people engaging in SLAPP-type behaviour - hell at least a couple of Tory MPs and several Tory Lords have done it! One of them I can't even name because I know his legal team trawls the internet looking for any mention of it and trying to SLAPP people down).
 


Matt Thomason

Adventurer
There's definitely some wacky stuff, it just doesn't seem to me to generally be the sort of years/decades long cases we often see being made into movies (which is usually a very specific kind of litigation).

Also haven't you misread GW v Chapterhouse? The shoulderpads ruling went AGAINST GW. GW thought they had a copyright on large shoulderpads - they're the ones who claimed that, no?

That was a complicated case - some judgements went for GW, some against. It looks like they'd obviously listed absolutely anything they could possibly think of, to see what they could get away with, from fairly solid claims to fairly ludicrous ones. It also didn't involve any type of license, and wasn't as simple as just quoting blocks of copyrighted text because it was expressions of imagery that were not exact copies but were "close to" the GW originals.

A case against a 3PP by WotC feels like it would be far simpler (they're either covered in their usage by the OGL because WotC cannot deauthorize it, or they're not if WotC can), unless the 3PP went beyond the SRD and started infringing on non-OGL work such as lifting bits from actual D&D books. For this hypothetical, I think we're not going beyond a legit SRD/OGL usage and WotC claiming they've de-authorized the licence permitting it. Although there is the possibility that the license was invalid but that they still did not use enough significant copyrighted material for it to matter anyway. (It could end up being as amusing as the only infringement being the copy of the OGL itself)
 

That was a complicated case - some judgements went for GW, some against. It looks like they'd obviously listed absolutely anything they could possibly think of, to see what they could get away with, from fairly solid claims to fairly ludicrous ones. It also didn't involve any type of license, and wasn't as simple as just quoting blocks of copyrighted text because it was expressions of imagery that were not exact copies but were "close to" the GW originals.
Yeah someone actually enumerated the claims here:


Re: listing absolutely everything, that's the approach TSR took with GDW back in the '90s, too. Unfortunately GDW didn't want to pay the lawyers (EGG implies they could have but it wouldn't have been worth it) so they settled with TSR rather than fighting them. If they had fought them, I expect a whole bunch of stuff WotC might try to claim as belonging to D&D would have been adjudged otherwise long ago.

I must admit I have no idea if the "list everything, however dumb" approach is routine for US copyright cases.

For this hypothetical, I think we're not going beyond a legit SRD/OGL usage and WotC claiming they've de-authorized the licence permitting it. Although there is the possibility that the license was invalid but that they still did not use enough significant copyrighted material for it to matter anyway. (It could end up being as amusing as the only infringement being the copy of the OGL itself)
Yeah it does depend on how WotC approached it. I have difficulty envisioning a scenario where WotC doesn't end up having to list what it thinks infringes, though, and I don't think any scenario where that happens will be a remotely clean win for WotC, because you can almost guarantee some of the stuff they're claiming will be found not to infringe - and yeah possibly everything except the OGL 1.0a itself, even!

Of course there's the possibility WotC just sulks and lurks as people continue to use the 1.0a licence, then waits for what it thinks is a more blatant copyright violation than the SRD, and tries to jump on that. Again though, I don't think that's going to go great for them. Especially as when you're trying to make money from a product as intimately connected to its fans as D&D is (far more intimately than any videogame, even MMOs), you can, should, must and will be be tried in the court of public opinion by your own fans.
 

ECMO3

Hero
And I hope they do.

Because at some point someone outside the OGLosphere needs to come in and make a determination whether things like irrevocability, and authorization are implied or not implied with the license.
The only group that can do that is a court of law, and even there what they say may only narrowly apply to the situation they ruled in.

Even Lawyers can't do what you are asking for here - make a determination.

I will add that OGL 1.1/2.0 changes nothing here. 6 months ago WOTC could have decided to wanted to try and sue anyone they wanted and the courts would have ruled on that suit just like they will rule on any future suit.
 

S'mon

Legend
There's definitely some wacky stuff, it just doesn't seem to me to generally be the sort of years/decades long cases we often see being made into movies (which is usually a very specific kind of litigation).

Also haven't you misread GW v Chapterhouse? The shoulderpads ruling went AGAINST GW. GW thought they had a copyright on large shoulderpads - they're the ones who claimed that, no?

It wasn't the final judgment I read, I think it was GW seeking interim relief.

Edit: And it was a judge only, no jury ofc.
 
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I think it's probably harder for a plaintiff than a defendant to drag things out. I mean, from a formal point of view, what is their reason for not just brining on their matter?
this one I know... paperwork. You bury the other side in paperwork.

if each sub motion requires x hours and y forms to fill out then filling 20 sub motions takes longer and costs more then 2 sub motions.

If you have lawyer (and I can NOT say how strongly you need a good one) each of those costs money... not just to fill out and argue, but they get paid to research the law to make there arguments, they can charge for the paralegal helping them.

If you are doing it yourself you have to be BOTH good enough at research to find the cases to reference, and good enough of a public speaker to make a convincing argument that may need to be modified on the fly as you go AND the time to do these things yourself.


On Monday I have to run payroll for a few companies, and file some forms, and reconcile some books. Monday almost every week is my busiest day. Sometimes something comes up midweek (or god forbid on the weekend) that I need to drop everything and do right then.
An average Monday is a 10 hour day for me. An average Wednesday is 4ish hours for me. If something goes wrong on a Wednesday and I end up working 8-9 hours that is bad but not the worst... if something went wrong on a Monday I just might not have enough time to do it even if I worked 12-14 hours.

A few years ago (I want to say around 2018) I watched a place implode with computer issues. me and several others could just not work. When the systems came back and we could we were flooded... not just with that missed work but now extra steps and the work we should be doing anyway.
I imagine trying 1 against a corp law team feels like week after week of THAT feeling... the drowning in things to do and respond to. However we had and end in sight (get caught up or at least close) you may not be able to SEE the light at the end of this tunnel.
 

If I had to guess, my guess would be that on the balance of probabilities, they'd probably ignore you. But they could sue you. It's a strategy question for them. They may be right now planning a flurry of Cease & Desist letters to anyone publishing under OGL 1.0.
from a cost to benefit sueing you the small guy is better then sueing Piazo... you lose and THEN they take that to the piazo case a few month later
 

But surely a good lawyer for the respondent can draft a position where it's clear what the question at issue is?
a good lawyer with a strong case (by most accounts this is) against a great lawyer with bad one doesn't sound TOO one sided...
but how much does a good lawyer cost?
What about the people that think they can go without a lawyer because 'they know whats right'?

In another thread it was said $20k-$70k to file or respond to expensive motions and $5k+ for cheap ones... how many motions need to be filed before you just can't afford to fight it anymore?
 


S'mon

Legend
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.

Basically, although you can sometimes take a judgement from jurisdiction A and ask for it to be enforced in jurisdiction B. Sometimes you cannot, eg you could not get an English libel judgment injunction enforced in New York.
 
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S'mon

Legend
If you are publishing outside the US, I'm not sure that WotC could destroy your US market by suing in the US (assuming mail order as per the original hypothetical). If your sales are taking place outside the US (eg people pay money into your non-US bank account) and then you ship to your customers, how would the US order be enforced against you?

I sometimes do e-commerce law, so now I'm thinking of a US court ordering ISPs to block access to the website of the UK publisher... theoretically possible, but seems unlikely in practice. But the rightsholder (here, WoTC) could use a US court order to get the work taken off drivethrurpg, easily enough. They'd presumably have already DMCA'd it anyway.
 

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