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On the subject of the implied license, I would think it to be quite clear. the_logos keeps using that stealing a TV argument, however that is not as 'end of the line' as he makes it sound. The owner of that TV has not allowed many other people to steal his TV in the first place, without taking action against them.
So, let's touch up his analogy and make it relevant to the issue at hand:
Original, irrelevant analogy:
Derivative, relevant analogy:
So, while that TV analogy was thoroughly entertaining, it is entirely irrelevant to the point. The Tolkien people have allowed 'violations' to go unhindered for well over a decade (from what I gathered here). Enough instances of those 'violations' have been noticed that a list has been made of the general outcome of the action Tolkien has taken AGAINST them, and found that they will tolerate said actions. Traithe attempted to gain permission and was not denied, though he was also not accepted.
If you couple all this information, I would think it to be quite obvious how someone could infer an implied license. Now, they could easily reject his implied license, and he'd not have a leg to stand on... but, he's also said if they do so he would take down the game.
Now, I'm not saying it should be considered a 'loss' of rights, however this is what Feist was talking about. Tolkien's people have ignored enough instances of usage of their property that it now grants an implied license to those wishing to use it. The fact that Traithe went so far as to send a letter asking permission only strengthens his case, I would think.
I don't necessarily AGREE that this is the case. But, for the legal stance I would venture that Traithe is not without a valid defense.
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