Greg Benage
Legend
I don’t think the lawyers gloss over the intricacies, uncertainties, and practical difficulties. It’s the never-ending stream of laymen that do that. 
OGL 1.1... quote the lawyers (and link)
In my view this is bad advice. The whole of the SRD text is copyright WotC. Many 3PPs are publishing work that either directly copies SRD text, or is manifestly derivative of it and hence (without a licence) may infringe WotC's copyrights.
I'm not saying it's impossible to publish non-licensed stuff that is D&D-ish in flavour, but the situation is more complex than you suggest.
Here's a relevant post from S'mon:
Looking at UK cases on non-literal infringement such as Herbert v Ravenscroft The Spear case and the Baigent & Leigh v Random House (Dan Brown) Da Vinci Code case, I'd be fairly confident in saying that in UK Copyright Law Torchbearer definitely falls on the Da Vinci Code side of the line, non-infringing, whereas the retro-clones fall on the Ravenscroft side, infringing. Worse, if they still contain any actual 3e SRD text then without the OGL they are literally infringing. It may well be possible to publish a mechanical clone of D&D in the fantasy genre without infringing copyrights, using only non-protected ideas & mechanics, but that's a distinctly tricky operation. For a start I think you'd want to do a kind of white room operation where the game was written without any copies of D&D on hand, to avoid literal infringement. Even then you could well take too much of the structure and expression of a D&D version. I think you really need to start with a kind of clean text describing a fantasy world/genre, no rules stuff, then add in rules mechanics at the end. As an academic it would be very interesting to see the court judgement on that!But far from ideal when you have the OGL & SRD.
Including just upthread!I don’t think the lawyers gloss over the intricacies, uncertainties, and practical difficulties. It’s the never-ending stream of laymen that do that.
That is no use to anyone. That is a variation of the classic "well you should not start from here when giving directions "
From reading what the EFF lawyer wrote, my feeling is that she is understating the protection afforded by the OGL under contract law, while overstating the protection afforded by the limitations of copyright law.
I think she is coming from the perspective of a public interest defender against companies who overstate their rights in IP law. She probably has a lot of experience there. I don't think she's an expert on the kind of open software licences the OGL 1.0 was modelled on.
The article is not intended to be legal advice, of course. But I think it might be giving people too much confidence in their freedom to publish close-to-D&D games in copyright, and too little confidence in the non-revocability of the OGL 1.0.
So yes, I agree with Pemerton.
Both sides would claim irreparable harm, though. The WoTC argument would be that the small, poor 3PP won't be able to compensate them for the terrible losses they're suffering. So just give us an interim injunction and close them down right now.
In practice it comes down to how strong the WoTC case is prima facie. But I've seen apparently much stronger cases than this one where interim injunctions were not granted, eg BBC v Pally Screen, the Tellytubbies case. A respondent who could afford to pay lawyers to properly defend their case ought to be pretty safe from an injunction. A sole trader who can't afford a defence might well get enjoined.
Edit: Even though Paizo is much smaller than Hasbro, Paizo is exactly the kind of company you would not want to go after if you're Hasbro's lawyers. They're clearly reputable, big enough to pay legal fees, big enough to pay some damages. The balance on granting an interim injunction to stop Paizo publishing under the OGL 1.0 pre-trial would be very very against WoTC-Hasbro. If I'm Hasbro Legal, I want to be going after some schmuck sole trader with no money and, preferably, few personal assets (car, house, etc) that they could sell or mortgage to raise money for a defence. That's the ideal target for an interim injunction.
Edit 2: My experience is in England & English Law. While the USA seems pretty similar AFAICT, it's going to vary by State. WoTC might look for a suitable target in a particularly litigant-friendly state. OGL 1.0 has no choice of jurisdiction clause so they'd want to find a resident of their preferred jurisdiction, I'd think.
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Gubber Bittencourt
Explorer
This is so ridiculous.
I created a narrative in my head that you are the villains now it's up to you to prove you've changed or you deserve defeat and public humiliation.
You do understand that I am a small third party publisher right? And also a freelance writer for A5e?
If 1.1 goes through it could destroy my burgeoning career. And even if it didn't destroy my freelancing for EN Publishing The terms of their contract mean I have to provide them with everything I write, and they can use it whenever they want wherever they want however they want forever without giving me a red cent, essentially turning me into their intern.
By all means give me a narrative in which this is somehow supportive toward me rather than directly antagonistic.
And, no, at no point did I imply that I want them publicly humiliated. Defeated on the OGL 1.1? Absolutely! Beaten by a class action lawsuit of third party publishers working together to ensure OGL 1.0A is a law of the land? Absolutely!
But you're reading the pettiness into my initial post there. And that's really upsetting and annoying, as people tend to do that. Ascribe motivations and emotions to me in order to delegitimize my position. It's very patronizing.
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She talks about how the OGL 1.0a would no longer bind the 3PP if WotC revoked it. Does the same apply if they merely "deauthorize" it?
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