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Hypothetical: I ignore OGL 1.x
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<blockquote data-quote="pemerton" data-source="post: 8896805" data-attributes="member: 42582"><p>It's unlikely to get to an argument about copyright, for the following reasons:</p><p></p><ul> <li data-xf-list-type="ul">Reynard (as defendant) would plead his contractual rights under the OGL v 1.0a in his defence.</li> <li data-xf-list-type="ul">If Reynard loses, he would settle on the copyright issue rather than litigate.</li> <li data-xf-list-type="ul">If Reynard wins on the contract point, the copyright issue becomes moot.</li> </ul><p></p><p>So the copyright never gets litigated, unless Reynard loses the contract matter and then is <em>super-keen</em> to run a landmark copyright case.</p><p></p><p>This seems right enough to me.</p><p></p><p>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.</p><p></p><p></p><p>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).</p><p></p><p>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.</p><p></p><p>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.)</p></blockquote><p></p>
[QUOTE="pemerton, post: 8896805, member: 42582"] It's unlikely to get to an argument about copyright, for the following reasons: [LIST] [*]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. [/LIST] So the copyright never gets litigated, unless Reynard loses the contract matter and then is [i]super-keen[/i] to run a landmark copyright case. This seems right enough to 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. 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). 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.) [/QUOTE]
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