WotC Backs Down: Original OGL To Be Left Untouched; Whole 5E Rules Released as Creative Commons

Hundreds of game publishers sigh in relief as, after extensive pressure exerted by the entire open gaming community, WotC has agreed to leave the original Open Gaming License untouched and put the whole of the 5E rules into Creative Commons.

So, what's happened?

• The Open Gaming Licence v1.0a which most of the D&D third party industry relies on, will be left untouched for now.
• The whole of the D&D 5E SRD (ie the rules of the game less the fluff text) has been released under a Creative Commons license.

OGL 1.0a & Creative Commons

Over the past few weeks you, the community, have made your voices heard. And we’ve listened. OGL 1.0a will remain untouched AND the entire SRD 5.1...

www.dndbeyond.com

WotC has a history of 'disappearing' inconvenient FAQs and stuff, such as those where they themselves state that the OGL is irrevocable, so I'll copy this here for posterity.

When you give us playtest feedback, we take it seriously.

Already more than 15,000 of you have filled out the survey. Here's what you said:

• 88% do not want to publish TTRPG content under OGL 1.2.
• 90% would have to change some aspect of their business to accommodate OGL 1.2.
• 89% are dissatisfied with deauthorizing OGL 1.0a.
• 86% are dissatisfied with the draft VTT policy.
• 62% are satisfied with including Systems Reference Document (SRD) content in Creative Commons, and the majority of those who were dissatisfied asked for more SRD content in Creative Commons.

These live survey results are clear. You want OGL 1.0a. You want irrevocability. You like Creative Commons.
The feedback is in such high volume and its direction is so plain that we're acting now.

1. We are leaving OGL 1.0a in place, as is. Untouched.
2. We are also making the entire SRD 5.1 available under a Creative Commons license.
3. You choose which you prefer to use.

This Creative Commons license makes the content freely available for any use. We don't control that license and cannot alter or revoke it. It's open and irrevocable in a way that doesn't require you to take our word for it. And its openness means there's no need for a VTT policy. Placing the SRD under a Creative Commons license is a one-way door. There's no going back.

Our goal here is to deliver on what you wanted.

So, what about the goals that drove us when we started this process?

We wanted to protect the D&D play experience into the future. We still want to do that with your help. We're grateful that this community is passionate and active because we'll need your help protecting the game's inclusive and welcoming nature.

We wanted to limit the OGL to TTRPGs. With this new approach, we are setting that aside and counting on your choices to define the future of play.
Here's a PDF of SRD 5.1 with the Creative Commons license. By simply publishing it, we place it under an irrevocable Creative Commons license. We'll get it hosted in a more convenient place next week. It was important that we take this step now, so there's no question.

• SRD 5.1-CC

We'll be closing the OGL 1.2 survey now.

We'll keep talking with you about how we can better support our players and creators. Thanks as always for continuing to share your thoughts.

Kyle Brink
Executive Producer, Dungeons & Dragons

What does this mean?

The original OGL sounds safe for now, but WotC has not admitted that they cannot revoke it. That's less of an issue now the 5E System Reference Document is now released to Creative Commons (although those using the 3E SRD or any third party SRDs still have issues as WotC still hasn't revoked the incorrect claim that they can revoke access to those at-will).

At this point, if WotC wants anybody to use whatever their new OGL v1.x turns out to be, there needs to be one heck of a carrot. What that might be remains to be seen.

Pathfinder publlsher Paizo has also commented on the latest developments.

We welcome today’s news from Wizards of the Coast regarding their intention not to de-authorize OGL 1.0a. We still believe there is a powerful need for an irrevocable, perpetual independent system-neutral open license that will serve the tabletop community via nonprofit stewardship. Work on the ORC license will continue, with an expected first draft to release for comment to participating publishers in February.

Over 1,500 Publishers Support Paizo's Upcoming Open RPG Creator's License

Paizo has revealed some of the 1,500+ tabletop RPG publishers who have expressed an interest in their new Open RPG Creator's License (ORC), describing the group as the 'ORC Alliance'. The license itself is still being worked on, so these 1,500 publishers have not actually seen it or signed...

www.enworld.org

 

[Matt Thomason]

I don't think I agree.

If the dead publisher didn't confer the rights you want - ie if they retained some power of revocation - then I don't think WotC can give you the power to change that just by purporting to promulgate a new licence.

I think the 1.0b you are looking for is a bit illusory.

Question - what if 1.0b replaces the "any authorized version" text with "any version that has ever been authorized" - that at least would prevent the vague "deauthorize" threat, yes?

It's not perfect, but it seems that would close that particular loophole (while still potentially leaving one of revoking the offer of further licenses on the SRD - but that is seemingly closed by reusing the SRD via CC and everything else via the OGL, unless another upstream publisher also revokes their offer.)

Either way, the issue of someone potentially pulling down the whole house of cards of dependent works under the OGL is still a problem.

 

[Iosue]

How much of the 3.5 SRD is actually in OSRIC? Given the vast difference between 3.5 and 1e rules, my impression was that invoking the name of the OGL and 3.5 SRD was merely to provide legal cover, since merely re-expressing the 1e rules by themselves was untested legal waters. Class structure was different, monster stat blocks were different, combat was completely different. AFAICT, the only thing taken from the SRD are the names of ability scores, spells, and monsters.

The foundation of every retroclone since then has always been the rules of its original edition, not 3.5.

Given that the truly foundational elements that allowed creators to use the 3.5 rules to create AD&D and OD&D clones are also in the 5.1 SRD, I’m skeptical that it would really be so onerous to move existing clones to the CC license. Certainly not rebuilding from the ground up using new rules. And probably not even line-by-line checking if the text. Isolated lines of text are not enough to prove infringement, and that’s assuming a) the WotC ever tried to “de-authorize” OGL 1.0a again, and b) that they would then care enough about shutting down CC-using OSR products to the point of searching for stray bits of the 3.5 SRD in them in order to bring suit.

 

[Ashtagon]

I don't think I agree.

If the dead publisher didn't confer the rights you want - ie if they retained some power of revocation - then I don't think WotC can give you the power to change that just by purporting to promulgate a new licence.

I think the 1.0b you are looking for is a bit illusory.

Under the recent unpleasantness, it had been widely understood across the industry that the 1.0 and 1.0a licences were, in modern legal terms, "irrevocable". Recent commentary by Darcy indicates that the only reason those licences didn't have that particular wording is because at the time the original documents were written, it was not standard to write the word "irrevocable" to indicate that specific meaning.

In other words, while this 1.0b would be a change in wording, it would not be a change in intent.

 

[pemerton]

Question - what if 1.0b replaces the "any authorized version" text with "any version that has ever been authorized" - that at least would prevent the vague "deauthorize" threat, yes?

Perhaps - the argument here would be that WotC have, by promulgating the new variant, empowered you to remove their alleged power of deauthorisation.

It's not perfect, but it seems that would close that particular loophole (while still potentially leaving one of revoking the offer of further licenses on the SRD - but that is seemingly closed by reusing the SRD via CC and everything else via the OGL, unless another upstream publisher also revokes their offer.)

My view remains that, given their alleged power of deauthorisation turns entirely on an implausibly strained construction of the legal text, any comfort taken from the change you are canvassing would be false comfort - because strained interpretations are a dime a dozen when you have WotC's legal team ready to suggest them.

To put it another way: suppose there were a small number of "loopholes", of known sizes; then closing off one reduces the overall vulnerability.

But that's not what we're talking about. There is no loophole here that needs to be shut: there is an implausible argument being used to throw commercial weight around. As long as the commercial weight remains, new implausible arguments can always be constructed. So why waste time and energy worrying about the particular form the last such event took? To me it almost seems like a type of fetishisation of the legal text, rather than a realistic appraisal of the actual dynamics at work.

 

[pemerton]

Under the recent unpleasantness, it had been widely understood across the industry that the 1.0 and 1.0a licences were, in modern legal terms, "irrevocable". Recent commentary by Darcy indicates that the only reason those licences didn't have that particular wording is because at the time the original documents were written, it was not standard to write the word "irrevocable" to indicate that specific meaning.

In other words, while this 1.0b would be a change in wording, it would not be a change in intent.

Yes, I know. That's why I think it's a waste of time that would do nothing but provide false comfort.

 

[Matt Thomason]

But that's not what we're talking about. There is no loophole here that needs to be shut: there is an implausible argument being used to throw commercial weight around. As long as the commercial weight remains, new implausible arguments can always be constructed. So why waste time and energy worrying about the particular form the last such event took? To me it almost seems like a type of fetishisation of the legal text, rather than a realistic appraisal of the actual dynamics at work.

Understood - and that's a big part of my thinking re: ORC. Sure, WotC may still come after me for a copyright violation, but at least they can't come after me for some made-up license violation if I don't actually have a license with them. At least copyright violations I have some idea of how to insulate myself against (by, well, simply not violating copyright), while random invented license violation #1236 I don't

 

[pemerton]

Understood - and that's a big part of my thinking re: ORC. Sure, WotC may still come after me for a copyright violation, but at least they can't come after me for some made-up license violation if I don't actually have a license with them. At least copyright violations I have some idea of how to insulate myself against (by, well, simply not violating copyright), while random invented license violation #1236 I don't

Maybe.

Under the OGL the result of licence violation is termination, which in turn exposes you to a suit for copyright infringement. (This outcome is actually discussed in some of the CC articles I've been reading for the PSA-lawyers thread). So I'm not sure that you can be worse off by relying on (or purporting to rely on) the OGL.

Of course, if you want to become part of an ORC-based ecology that's a different matter. But you've probably noticed throughout this month-long discussion I've had the view that publishers are deserting the OGL a bit too hastily, and I stand by that.

(Naturally, it suits Paizo to leave the WotC-based OGC-verse and create its own ecology, for exactly the same reasons Dancey wanted to create a WotC-centric ecology. But this is entirely about Paizo's commercial interests, not its legal rights and risks.)

 

[dave2008]

Another thought.

Suppose there's a dead publisher book whose OGL 1.0 content I really want to use.

I simply can't use it under CC, no matter what. There's just no option.

At present I can take that OGL content, use it in my book, and publish that under OGL 1.0a. I could even make a book that contains all of their old OGL 1.0 content and publish it in my own OGL 1.0a book. However, the legal status of 1.0a hasn't been fully resolved vis a vis whether it can be revoked and whether it can be de-authorised. It's a ticking time bomb for me, because in principle WotC could launch another legal challenge. As many have noted, we can't see a reason for them to do so, but this time last year we couldn't see a reason for them to try it last month either.

With a 1.0b that fixes the revocation and authorisation issues, I can use that dead publisher's OGL 1.0 content, republish it in my book with a 1.0b licence, and be confident it will stand up to legal scrutiny. (In as much as anything can stand up to legal scrutiny of course.)

Yep - I understand it fully now (I think).

 

[Matt Thomason]

Maybe.

Under the OGL the result of licence violation is termination, which in turn exposes you to a suit for copyright infringement. (This outcome is actually discussed in some of the CC articles I've been reading for the PSA-lawyers thread). So I'm not sure that you can be worse off by relying on (or purporting to rely on) the OGL.

Of course, if you want to become part of an ORC-based ecology that's a different matter. But you've probably noticed throughout this month-long discussion I've had the view that publishers are deserting the OGL a bit too hastily, and I stand by that.

(Naturally, it suits Paizo to leave the WotC-based OGC-verse and create its own ecology, for exactly the same reasons Dancey wanted to create a WotC-centric ecology. But this is entirely about Paizo's commercial interests, not its legal rights and risks.)

My view right now is that having my income dependent on one single keystone holding is not a good thing. If I start putting some of the weight onto a 2nd keystone, I'm at least insulated against one crumbling away. The specifics of my own position mean I've got a fairly static-ish income from OGL material for as long as that material can be legally used. So it makes sense for me to focus on building up just as much ORC material until I have at least as much as I do OGL material, with my income coming 50/50 from each (or preferably diversifying into other things too, putting all my eggs in two baskets isnt much better than one).

That feels like a common-sense business approach to me - getting rid of the single dependency that could wipe me out.

 

[Mistwell]

Could not 1.0b have some chain of clauses like "all material licensed under 1.0 and 1.0a should also be considered to be licensed under 1.0b" and "the license to release material under 1.0b cannot be revoked"? Or something along those lines? IANAL, of course.

Sure but unless you're using 1.0b it can't apply to your product. You have to use the license to get any protections from that license and WOTC cannot create a license which automatically supersedes the terms of the license you chose to use. If they could, imagine what they could have done to those licenses long ago. If they could have done that ,then they could have just as easily written a license which did the opposite of that.

No matter what, to make 1.0a irrevocable, everyone would have to declare their usage of their products as being under whatever new license said that. No new license can amend or alter in any way the old license. That was the point. That's how it was built to be.

Bottom line is, plenty of other folks seem to see value in a 1.0b, so I think one could be drafted that would be beneficial to the OGL ecosystem. Just takes some imagination and willingness. What's the harm in making the attempt? Better to have that and also have other open licenses, no?

I guess? If they want to re-issue under 1.0b or (more likely) draft new stuff under a 1.0b that's fine. I'd think Creative Commons gives them more protection and usage - like granting them the right to say "Compatible with Dungeons and Dragons" and use some stuff in the CC SRD that wasn't in the 1.0a SRD like beholders.

The FAQ - while absolutely something I would have used in court to defend OGL 1.0's intended irrevocability - didn't cover the specific legal shenanigan of de-authorizing a previous version of the license. That's the loophole that needs closed. At the very least, doing so would make this harder for them to repeat, as they'd have to come up with a novel legal theory.

Creative Commons closes that loophole, better than anything WOTC lawyers could draft for their own home-made license (1.0a). I think people are getting stuck on "We must fix 1.0" and are not groking the meaning of a Creative Commons type license - which is better.