Hypothetical: I ignore OGL 1.x

[pemerton]

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?

 

[Matt Thomason]

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]

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.

 

[MockingBird]

According to the latest leak, if you could get it out within 6 months you would be golden right?

 

[Matt Thomason]

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]

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.

 

[Ruin Explorer]

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.

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?

 

[Ruin Explorer]

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).

 

[Reynard]

According to the latest leak, if you could get it out within 6 months you would be golden right?

I don't think so. You have to publish it now (ie before the new license goes into effect) and have 6 months to sell through. If I am reading it right.

 

[Matt Thomason]

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)