WotC Talks OGL... Again! Draft Coming Jan 20th With Feedback Survey; v1 De-Auth Still On

Following last week's partial walk-back on the upcoming Open Game Licence terms, WotC has posted another update about the way forward.

The new update begins with another apology and a promise to be more transparent. To that end, WotC proposes to release the draft of the new OGL this week, with a two-week survey feedback period following it.

WotC Walks Back Some OGL Changes, But Not All

Wizards of the Coast has finally made a statement regarding the OGL. The statement says that the leaked version was a draft designed to solicit feedback and that they are walking back some problematic elements, but don't address others--most notably that the current OGL v1.0a is still being...

www.enworld.org

They also list a number of points of clarity --

• Videos, accessories, VTT content, DMs Guild will not be affected by the new license, none of which is related to the OGL
• The royalties and ownership rights clauses are, as previously noted, going away

OGL v1 Still Being 'De-Authorized'
However, OGL v1.0a still looks like it's being de-authorized. As with the previous announcement, that specific term is carefully avoided, and like that announcement it states that previously published OGL v1 content will continue to be valid; however it notably doesn't mention that the OGL v1 can be used for content going forward, which is a de-authorization.

The phrase used is "Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a." -- as noted, this does not make any mention of future content. If you can't publish future content under OGL 1.0a, then it has been de-authorized. The architect of the OGL, Ryan Dancey, along with WotC itself at the time, clearly indicated that the license could not be revoked or de-authorized.

While the royalty and ownership clauses were, indeed, important to OGL content creators and publishers such as myself and many others, it is also very important not to let that overshadow the main goal: the OGL v1.0a.

Per Ryan Dancey in response this announcement: "They must not. They can only stop the bleeding by making a clear and simple statement that they cannot and will not deauthorize or revoke v1.0a".

Ryan Dancey -- Hasbro Cannot Deauthorize OGL

I reached out to the architect of the original Open Gaming License, former VP of Wizard of the Coast, Ryan Dancey, and asked his opinion about the current plan by WotC to 'deauthorize' the current OGL in favour of a new one. He responded as follows: Yeah my public opinion is that Hasbro does...

www.enworld.org

Amend At-Will
Also not mentioned is the leaked draft's ability to be amended at-will by WotC. An agreement which can be unilaterally changed in any way by one party is not an agreement, it's a blank cheque. They could simply add the royalties or ownership clauses back in at any time, or add even more onerous clauses.

All-in-all this is mainly just a rephrasing of last week's announcement addressing some of the tonal criticisms widely made about it. However, it will be interesting to see the new draft later this week. I would encourage people to take the feedback survey and clearly indicate that the OGL v1.0a must be left intact.

 

[Alzrius]

The cancelled subs gave WotC pause. But if they can't win those subs back or find a compromise, they'll consider them acceptable losses and do whatever the hell they want.

They've already made it clear that they intend to do what they want, with their legally-questionable and unethical posturing regarding revoking/de-authorizing the OGL v1.0a. As such, there's no good-faith basis for thinking that they're somehow going to act more reasonable now; or at least, not without a greater show of contrition than they've made now, since their current one fails to address the single most egregious aspect of their recent actions.

WotC is off balance and willing to listen. Now is the time to actually TALK to them and have something to say. But so far all everyone wants to say is "No." Which gets us nowhere.

Because they have not backed off on a point which the community has already made clear is completely non-negotiable. Even overlooking that the value of their promises has been badly damaged by their actions up until now, winning concessions on minor points is fairly meaningless if the central issue is one they're digging their heels in on. There is no good-faith discussion to be had until WotC backs off on the entire idea of killing the OGL v1.0a. Everything else is a sideshow.

 

[Vaalingrade]

It's an issue of priority.

If the bad guy in a movie rode into town and declared "I'm going to kill all of you, burn your buildings, and sell your organs to zoos for meat", then walked it back to "Okay, I'm not going to burn the buildings and I really don't need more zoo money."... well there's still a large bone of contention.

No one runs into the middle of the battle and goes "Guys! He said he wasn't going to burn your house. Maybe we should just, ya know, let him kill you all. Just a little."

 

[Matt Thomason]

No. But expecting a billion dollar company to lose a legal fight is.

And multiple lawyers have said it is.
There's no consensus. It will depend on the judge and who has more desire to fight.

The only lawyers saying that it is are those who have misunderstood the contract to be a unilateral grant and not a bilateral agreement because they don't seem to have read any further than the word "license" and assumed it was all one way.

It is fairly obvious to anyone that actually reads it that it is the latter due to the obligations and requirements it puts on the licensee. This particular legal fact is something I as a layman could likely argue in front of a judge without the need for any legal counsel (note: while this may actually work, it really is NOT a good idea, I'm just using this to illustrate how obvious it is) whatsoever because it is so obvious. So, we can very easily throw away any idea of Wizards being able to simply revoke the OGL legally.

De-authorization requires that both sides agree on a de-authorization procedure either as a part of the contract or afterwards. So that's almost certainly out too, they can't just unilaterally invent one now.

That only leaves them with three options:
- Putting de-authorization of the existing license in the new license terms, so anyone agreeing to 1.1/2.0/whatever they're calling it this week agrees as a part of that that the old license is de-authorized for them. This appears to be the most likely thing they've planned from the start, under the assumption everyone will simply believe it's de-authorized for everyone and stop using it anyway. "If we say we can do it, who is going to actually question it?" Oops, seems like everyone did.

- No longer offering any new instances of OGL licences. This may sound effective, but in reality the fact they are unable to cancel OGL sublicenses means it's about as effective as a chocolate fireguard, with the only real result being a ton of bad PR for them.

- Hoping every individual 3PP is too scared because they don't have the resources to fight them in court. They're half-right. Individually, sure, most probably could not. However, this assumes everyone else is willing to stand by and watch as they take us out one at a time with C&Ds. I would be willing to put money at this point on whomever gets hit first finding they're suddenly not short of legal defence funds due to the number of people that want this to go to court so we can get a ruling.

 

[reelo]

Monte Cook has it right:

 

[Bagpuss]

Because, as you say, you can produce an adventure for D&D without needing to copy anything from the SRD or rulebooks, which means you don't need to use the OGL to make an adventure for D&D.

You don't need to but you are taking a risk without the backing of the OGL.

 

[mamba]

Well, I certainly don’t think it’s needed either, but it seems exactly like the thinking of WotC to me.

maybe, I am still puzzled by what they think they get out if this. Still think they want the ability to change terms whenever they want to, I see nothing else worth risking this over

Which part did they walk back yesterday?

3pp products can be for VTTs, VTT producers can use the OGL 2.0 for their VTTs

“VTT content. Any updates to the OGL will still allow any creator to publish content on VTTs and will still allow VTT publishers to use OGL content on their platform.”

 

[FormerLurker]

Again, none of those make it inevitable that they'll win. The idea that simply wanting it more, or having more money/lawyers/resources, makes a favorable court ruling a foregone conclusion is cynical, not realistic.

Cynicism is often realistic.

I'm honestly not sure what relevance you think that has. The legal veracity of a particular argument in no way depends on how many people care about it. As I pointed out to you before, we've had multiple lawyers affirm that WotC's claims of being able to revoke/de-authorize the OGL are legally shaky at best. Saying "they have more lawyers," or "they want it more," or "almost no one cares" have little-to-no impact on that; certainly, a judge won't care about any of those things.

Lawyers can do a lot. They just need to as for an injunction or pause of the old license or both licenses until a ruling, which cuts off their opposition from funding.
This is also presuming it even goes to trial. That's bad publicity WotC doesn't want. They're much more likely to just sit down with Paizo and the leaders of the opposition and strike a deal. Paizo isn't some benevolent entity: they're a business as well. And right now, it's good marketing to stand up to WotC. But if it makes them more money to strike and deal and back down (rather than fight for months and potentially lose), they will.

Logic also comes into play.
There's two outcomes of any legal fight. WotC wins and WotC loses. That's out of our control. But we can decide what the community does. We can either negotiate with WotC or not.
Which creates four possible outcomes. We "win" if WotC loses, regardless of whether or not the community finds a compromise. But if WotC wins in court, we lose completely. Unless we negotiate. Logically, the negotiating and finding a compromise with this new OGL is the most productive thing the community can do.

 

[Greg Benage]

The year is 2033 and Wizards has decided it's time for OGL 3.

TTRPG Community: You said OGL 2 is perpetual and irrevocable!
Wizards of the Coast: Yeah, well, I said that about OGL 1, didn't I?
TTRPG Community: But we negotiated and you added the Pinky Promise clause to the agreement!
Wizards of the Coast: The people who added the Pinky Promise clause are no longer with the company, so...
TTRPG Community: You forking suck!
BeyondLurker: Listen, guys, we can just stomp our feet and say "no," or we can negotiate better terms for OGL 3. May I propose a Double Pinky Promise clause?

 

[mamba]

No. But expecting a billion dollar company to lose a legal fight is.

happened before, and ultimately if they do not lose it then we move on and they can slowly sink to the bottom of the ocean for all I care

 

[eyeheartawk]

The problem is that the architects of the deal tried to bind the hands of the future leadership of WotC with a deal that on the face of it doesn’t seem very equitable. Paizo - the biggest beneficiary - certainly wasn’t assisting WotC and I don’t believe 5e does now - with the exception of maybe selling an adventure path or two maybe! It certainly won’t help with DDB sales which they see as the future.

Knowingly entering a lopsided deal and then being amazed when the side that gets the sticky end of the stick tries to get out of the deal seems like a bit of naivety to me.

I think there are lots of people who would argue that WOTC have benefited tremendously from the OGL.

But even assuming that they haven't been, they wrote the contract with those terms. Not us. So yeah, to expect someone to abide by an agreement that they themselves wrote is not naive. That's how contracts work. If it was a natural part of business , and life generally, to get out of agreements you've entered into just because they don't benefit you anymore, damn what the actual document says, I don't think many businesses could operate.

So again, all that being said, definitely not naive.