Hypothetical: I ignore OGL 1.x

[Reynard]

I guess my mail order game books better be selling really well then! Thanks everyone.

 

[Lanefan]

they have to first prove that 1.0a can in fact be revoked, otherwise no copyright was violated. At that point you could theoretically still accept the 1.1 instead of going down the copyright violation route too

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

That last might be difficult given they ran out of feet to shoot sometime last week...

 

[Lanefan]

The two main situations which result in multi-year court cases are:

1) Incredibly complex litigations usually involving high tens of millions to billions of dollars of potential damages, and complex situations which need a lot of proof and scientific or forensic accounting evidence or both.

2) Not actually a single court cases, rather some basically vexatious litigant keeps suing and suing. There is zero possibility of a corporation doing this because the self-PR damage and potential other damage is insane. Especially as you usually have to be a litigant-in-person because lawyers representing you would get disbarred.

3. The deep-pocketed losing side keeps appealing to higher courts, which in effect restarts the whole process each time.

Not sure how much of that you see in the UK but it's fairly common here in Canada and, I believe, the US.

The costs could be significant but this is the US so you're not usually paying the other side's costs (for better or worse).

Unless the judge rules otherwise.

 

[pemerton]

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".

Next step would probably be to try and get an injunction to stop you selling your products, I think.

That won't succeed as often as people might think.

Then once that's been determined they to take you to court and probably make a copyright case against you.

I think that's where it gets a lot more dangerous for WotC, because potentially they could fail to prove they have copyright on a bunch of stuff people were acting like they did.

It's unlikely to get to an argument about copyright, for the following reasons:

• Reynard (as defendant) would plead his contractual rights under the OGL v 1.0a in his defence.
• If Reynard loses, he would settle on the copyright issue rather than litigate.
• If Reynard wins on the contract point, the copyright issue becomes moot.

So the copyright never gets litigated, unless Reynard loses the contract matter and then is super-keen to run a landmark copyright case.

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.

This seems right enough to me.

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!!!)

If someone sends a C&D that rests on what you believe is a mistaken claim of right, then typically I think you (or your lawyer on your behalf) replies explaining that the letter-writer does not have the right that they are asserting.

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.

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.

I don't think this is right, though. If WotC is asserting that there is no licence because they have unilaterally revoked it, then they are not going to be relying on the licence terms. And they are not alleging a breach of contract or licence rights; they are alleging copyright infringement. Once Reynard pleads the contract in his defence, section 13 is likewise irrelevant as Reynard is not conceding that there is any licence breach (and if in fact Reynard had breached the licence I think that would weaken his defence quite a bit).

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?

You only have to stop selling their work if an injunction is issued against you. If that happens, and you don't conform to the injunction, then you are violating a court order and so are in contempt of court.

But as some others have posted upthread, the likelihood of an injunction in WotC's favour is not super-high. (But it certainly can't be ruled out.)

 

[pemerton]

I'm not a law guy (Unless it happened on Boston Law, LA law, of Suits) but in other threads people had examples of much more serous (life and death) cases going 5 years then being settled before it would have been done... so I guess it depends but it CAN be years

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?

 

[macd21]

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.

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.

All that will take time (probably at least a year, maybe 2). If you hire a lawyer, you’re probably out a few hundred thousand dollars. And that’s before you consider your own time spent dealing with it. If you don’t hire a lawyer, you will lose.

Once it comes to trial, you better still have that lawyer, because if you don’t then you will lose. Waving the license in front of the judge isn’t enough. WotC’s lawyers will eloquently explain that they have the right to revoke the license, using the wording of the license itself, past case law, the testimony of legal experts etc.

If you win, the judge might force WotC to pay your legal fees. If you lose, or win but are not awarded costs, then you’ve quite possibly spent more money on legal fees than you made on the sale of your product.

So any 3PP has to ask themselves if it’s worth it? Instead of producing under the 1.0 OGL and risking litigation, why not either publish under 1.1 or else (more likely) just publish using a different system altogether?

 

[Matt Thomason]

So any 3PP has to ask themselves if it’s worth it? Instead of producing under the 1.0 OGL and risking litigation, why not either publish under 1.1 or else (more likely) just publish using a different system altogether?

And once you hit 1.1, you find you're forever locked into future versions too even though you've got no idea today what they might be So, as you say, the safer course is to use a completely different license that you can feel comfortable with.

 

[S'mon]

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".

Note: I'm actually looking for an informed opinion on the subject by people familiar with the way IP law and corporations work. Thanks.

How can we possibly know what WoTC would do?

In the past they have sent 'nice letters' to people, then sometimes a C&D, then sometimes they take legal action. They've usually only done the latter two in pretty clear cases.

But (a) there has clearly been a culture shift with the new WoTC leadership (b) they are trying to create a new reality, by changing perceptions.

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.

 

[Enrahim2]

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. It seem the law people here don't think the case for this is strong enough to be worthwhile, but if you in the hypotetical already are willing to burn money it migth be a potential extra "roll of the dice" with the judges.

 

[Prime_Evil]

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?