Hypothetical: I ignore OGL 1.x

[S'mon]

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.

 

[pemerton]

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]

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]

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]

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.

 

[S'mon]

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]

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]

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.

 

[macd21]

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]

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?