Hypothetical: I ignore OGL 1.x

[S'mon]

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]

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!"

 

[S'mon]

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]

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?

 

[reelo]

What about a publisher in the EU?

 

[pemerton]

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]

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.

 

[S'mon]

What about a publisher in the EU?

On the merits, I think WoTC's IMO blatant bad faith dealings around the OGL licence would weigh more heavily in a Civil Law court (the whole EU except Ireland) than in a Common Law court (the whole USA, except Louisiana).

 

[mamba]

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]

What about a publisher in the EU?

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

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.