Um, at least in the US, burden of proof rests with the plaintiff, not the defendant. You can drag me to court, but if your argument is, "prove you didn't," I'll just lean back, kick up my feet, and say, "prove I did. Burden of proof is yours, not mine... you filed the case, I didn't. That means you have to do the work, not me." Pretty much the only way you'll be able to provide substantial evidence that my work infringes is if I have a copy of your work in my home... or, in the case of a PDF product, if you have a receipt of sale traceable to one of my credit cards or e-mail addresses. Absent my having a copy of your book in my home, I CAN'T infringe.
For example, I don't own Savage Species. I haven't looked at Savage Species. Hearsay tells me it's a book about monsters as characters, but that's all I know about it. If I came up with a concept similar to one found in Savage Species, and WotC dragged me to court, I'd just shrug and say, "prove it. When the police came with a warrant searched my home, they found no copy of the book. There were no copious pages of notes that I might have taken in the FLGS while browsing the book. You found absolutely no evidence that could show that I copied it from you or derived it from your product. Prove I didn't come up with it on my own." And if all they've got is spreading FUD, their case will eventually be thrown out. And I'm sure the defendant would be more than happy to countersue for legal expenses and time lost coming to court and possibly slander and libel... and I'm reasonably sure they could at least recoup their court costs.
That's why I'm REAL glad there's a 30-day cooling-off period in the OGL. Thanks, Ryan Dancey! :)
(hope this isn't a dupe, got an error message when I tried sending a moment ago)
--The Sigil
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