robconley
Hero
That is what the hobby thought as of November 30th 2022. And now we are here.
An Unexpected Victory, Unconditional Surrender, and Unfinished Business.
- Thread starter robconley
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Maxperson
Morkus from Orkus
Yep. But ONLY because WotC took a shot at 5e. The older stuff was purely collateral damage to that shot. Now that shot is useless to take as it can't do anything, so the older stuff has nothing to be collateral damage to.
To be honest, the vibe I get from reading posts on this forum is that identification with the D&D brand and the company that owns is the predominant orientation in RPGing.
Threads about the rankings of WotC-published books on Amazon; posts that reply to discussions of non-D&D approaches to RPGing that reference sales volumes of various indie RPGs compared to D&D; posts in the General RPG sub-forum that nevertheless treat D&D and D&D-style RPGing as normative for RPGing in general. There seems to me to be an almost overwhelming tendency to use D&D as a yardstick and baseline for thinking about RPGing.
We are talking about a commercial licensing dispute. It has two elements - the commercial element, and the legal/licensing element. Despite the endless (virtual) ink that has been spilled on that second element, my view is that it is largely irrelevant.
The better legal view is that the OGL in is current form grants parties to it a power to license to new parties all the material that has been licensed to them. And the most plausible view, particularly when past WotC representations and conduct are taken into account, is that that power survives a withdrawal by WotC of its offer to issue new licences over its material.
Despite this being the predominant view of the legal situation, in post after post the OGL has been decreed "dead".
So what is the point of a revised version of the OGL? Whatever the revised wording, WotC will be able to make assertions about its powers and wishes and so on which, however implausible, are unlikely to be more implausible than some of those that occurred in the current drama. (The continuing widespread lack of understanding about the legal operation and effect of private licensing schemes helps WotC in this respect.)
The relevant dynamic, here, is not a lack of legal protection provided by the OGL but the commercial power of WotC, and the fact that so many RPG publishers have adopted a business model which puts another, much bigger, entity's copyrighted work at the centre of their own business model. And so, suppose, in the future, that WotC purports to withdraw its offer to license the SRD under CC-BY? How will that be any different from the current OGL drama?
Or consider another possibility: suppose that Paizo successfully extricates PF and SF from the WotC-based licensing regime, and starts its own new licensing regime under ORC. And then, suppose that N years down the track Paizo purports to do, in relation to the licensing of its works under ORC, exactly what WotC has done over the past month?
I can't see how changes to the minutiae of the texts of licensing agreements will affect any of this. These are commercial disputes, not legal ones. What changed WotC's mind was almost certainly commercial considerations - loss of subscription, bad press, etc. I find it almost impossible to believe that there was any change in WotC's beliefs about what its legal position was.
Which brings this post back to what I said at its beginning: the RPG hobby seems to be overwhelming oriented around a single commercial publishing house - WotC - together with a handful of others that live largely within its shadow and more or less emulate its model (eg Paizo). There are "lifestyle" reasons for this (eg brand identification in a consumption-based society). There are play preference reasons for this (eg the desire, in RPG play, to have access to an ongoing stream of high quality published stories). There are complex reasons that result from the interplay of those other factor (eg the desire to have ongoing, carefully curated "canon" stories ready to hand as part of the play experience).
I don't see this state of affairs changing in any hurry.
Mistwell
Crusty Old Meatwad (he/him)
I think the complication with all those points is if you want to use 1.0a content, you're going to also need to also use 1.0a or CC licenses with it. Which makes it more complicated rather than less. If all you're doing is using 100% original stuff with core rules (no copyrighted content) then sure ORC can be a clean method of doing it. But if you want a Beholder in it, you'll need to also include a CC license. In which case just about all of those benefits go away.
Saracenus
Always In School Gamer
@pemerton,
Right now we are weathered the hurricane accessing the damage done. In this moment of relative calm we can breath a sigh of relief that the worst that could have happened, did not. The insurance we thought we had, the OGL 1.0a, is not a solid as we believed. So, now everyone is casting about trying to figure out how to best weather the next one... Unfortunately, it is too early to tell what it is we need to do to repair the damage and where the safest harbor is for 3PP publishers.
Slipping out of my hurricane disaster metaphor, it is just to early to tell what Paizo (ORC, PF SRD), Kobold Press (Black Flag SRD), and MCDM (unnamed project) are going to do and how successful they will be. ORC is an idea with some goals laid out, we don't have anything solid to make a prediction about what Paizo could or could not do in the future with it. If their word is to believed, they will not be able to break the ORC license once they set it in motion, but that is just words right now.
The creative commons of the SRD 5.1 has a solid and irrevocable license protecting it (no take-backsies). We are just working out the benefits and limitations of that license. Kobold Press has announced a project using this license. It will be interesting to see what they do.
OGL 1.0a, for now, is safe. The 3.0, 3.5, and 5.1 SRD can be used with it (as I understand it) but aside from WotC's word for the moment it still could be potentially "de-authorized." Again, we can speculate till the cows come home about the likelihood and the arguments for an against this position, but until it hits the courts and they makes a ruling, we will never be 100% certain.
Right now any 3PP of D&D compatible material should be talking to their lawyers (they should have been doing so when this disaster first hit) to assess their risk publishing right at this moment. If it were me (I am not a 3PP of D&D content), I would be cautious and let this develop until I had a clearer picture of where this is all going. But then again I don't have skin in the game and I don't have payroll to meet, printers to deal with, etc, etc...
Right now we are weathered the hurricane accessing the damage done. In this moment of relative calm we can breath a sigh of relief that the worst that could have happened, did not. The insurance we thought we had, the OGL 1.0a, is not a solid as we believed. So, now everyone is casting about trying to figure out how to best weather the next one... Unfortunately, it is too early to tell what it is we need to do to repair the damage and where the safest harbor is for 3PP publishers.
Slipping out of my hurricane disaster metaphor, it is just to early to tell what Paizo (ORC, PF SRD), Kobold Press (Black Flag SRD), and MCDM (unnamed project) are going to do and how successful they will be. ORC is an idea with some goals laid out, we don't have anything solid to make a prediction about what Paizo could or could not do in the future with it. If their word is to believed, they will not be able to break the ORC license once they set it in motion, but that is just words right now.
The creative commons of the SRD 5.1 has a solid and irrevocable license protecting it (no take-backsies). We are just working out the benefits and limitations of that license. Kobold Press has announced a project using this license. It will be interesting to see what they do.
OGL 1.0a, for now, is safe. The 3.0, 3.5, and 5.1 SRD can be used with it (as I understand it) but aside from WotC's word for the moment it still could be potentially "de-authorized." Again, we can speculate till the cows come home about the likelihood and the arguments for an against this position, but until it hits the courts and they makes a ruling, we will never be 100% certain.
Right now any 3PP of D&D compatible material should be talking to their lawyers (they should have been doing so when this disaster first hit) to assess their risk publishing right at this moment. If it were me (I am not a 3PP of D&D content), I would be cautious and let this develop until I had a clearer picture of where this is all going. But then again I don't have skin in the game and I don't have payroll to meet, printers to deal with, etc, etc...
Maxperson
Morkus from Orkus
It does. What I believe @pemerton's point is, is that WotC can still make the claim that it is withdrawing that license and that will still sow a lot of doubt in the industry. A lot of people either don't know the law, or don't believe the claims, and/or believe that they could not monetarily survive a legal challenge by WotC despite it being something that they should win if it went to court.
Do you mean the CC licence?
I don't see how that is any more solid than the OGL. Personally I actually think it's clearer that, and how, a withdrawal by WotC of its offer to licence under the OGL has no effect on downstream users, than is the case for the CC licence.
A CC license can't be withdrawn. That's the entire point.
Saracenus
Always In School Gamer
CC = Creative Commons. No they cannot take back the SRD 5.1-CC they have given under the CC-BY-4.0. It is irrevocable. Full. Stop.
WotC does not control license.
See: CC FAQ - What happens if the author decides to revoke the CC license to material I am using?
Unless there is some arcane way to undo what the license is designed (has been road tested) to do, I don't know what you are talking about.
The only way an individual author/company could be stopped from using this license is if they do not give the proper attribution as per the CC-BY-4.0 contract terms. And that is an easy fix.
No morality clauses, no medium restrictions, nothing.
Saracenus
Always In School Gamer
@Maxperson, and I could be hit by a meteor, directly on my head. Anything is "possible."
Sure WotC could stop distributing under CC-BY 4.0 but they have no legal leg to stand on if someone continues to use the material. If WotC even tried there would be so much blow back from beyond our little pond in the TTRPG world that it would make what just happened with the OGL look like the most brilliant idea, ever. I would hate to be in charge of the crowd-sourced money campaign that would spring up for their legal defense.
I would be more worried about the downsides to a CC license. For example I don't think you could make a licensed property with it. That was the point of the OGL, it could separate the Open from the Closed material. IANAL, so do not take this a legal advice.
Sure WotC could stop distributing under CC-BY 4.0 but they have no legal leg to stand on if someone continues to use the material. If WotC even tried there would be so much blow back from beyond our little pond in the TTRPG world that it would make what just happened with the OGL look like the most brilliant idea, ever. I would hate to be in charge of the crowd-sourced money campaign that would spring up for their legal defense.
I would be more worried about the downsides to a CC license. For example I don't think you could make a licensed property with it. That was the point of the OGL, it could separate the Open from the Closed material. IANAL, so do not take this a legal advice.
Have you read the CC FAQ?
Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms.
That ostensible power to continue to redistribute it flows, as best I can tell, from the "automatic offer" provision in section 2.a.5.A. I haven't done a comprehensive literature review, but what I've found so far only considers the "automatic offer" element from the perspective of a recipient; I haven't seen anyone consider how an "automatic offer" survives a withdrawal by the upstream licensor of their offer.
None of this is different from the OGL v 1.0a (except that also imposes Product Identity as well as attribution requirements). I mean, some of the minutiae is a bit different, but the fundamentals are not.
If WotC stops offering to license the SRD under the CC, and asserts that in virtue of that change of mind no one any longer is the recipient of an "automatic offer", as far as I can see we will be in the same place as when they asserted that henceforth no one would be able to exercise the rights and powers they enjoy under the OGL v 1.0/1.0a.
If you know of literature or cases that have considered what happens to the "automatic offer" provision when the upstream offer is withdrawn, I'd be interested to read them!
Maxperson
Morkus from Orkus
I've known people who were afraid to fly on an airplane, but will get into a car without thinking twice. That despite more people dying in the US alone than died in all accidents worldwide combined since approximately 1990.
WotC engaging in that sort of behavior will drive many small providers away out of fear.
I agree that it would be stupid. WotC isn't a stranger to doing dumb things. This wasn't the first. It was just the worst.
robconley
Hero
That is accurate.
Which is also true.
The misconception here is that my goals are concerned with the relative popularity of various tabletop roleplaying brands and systems. They are not. The creative independence I focus on applies to everybody including leading brand D&D and its owner Wizards of the Coast. If that means that folks continue to focus their interest and creative interest on supporting the latest edition of D&D then so be it. And Wizards can enjoy the fact that they won their business honestly rather than through coercion. It wasn't so long ago that they understood that.
Yes. I quoted it. License agreements, once entered into, are irrevocable. (The same is true of the OGL - or at least I'm yet to see a strong legal argument to the contrary.)
Frequently Asked Questions - Creative Commons
creativecommons.org
But as the FAQ states, and as I quoted, the offer to license by WotC is not irrevocable. It's a gratuitous offer.
The device that the OGL uses to try and ensure that if WotC does this, the ecology remains alive, is to give all downstream licensees a power to keep licensing the licensed content, even if WotC is no longer doing so directly. It's an open question whether this mechanism works, but it probably does, and is strongly reinforced in that respect by representations made by WotC in the past.
The device that the CC licence uses to try and ensure that if WotC withdraws its offer, the ecology remains alive, is to stipulate that all downstream recipients automatically receive an offer whenever a downstream licensee distributes the licensed material. In my view it is also an open question whether this mechanism works. In a recent post on the Lawyer-PSA thread I posted and briefly analysed some academic writings that consider the question; as I posted not far upthread in this thread, I haven't done a comprehensive literature review and so maybe there is a definitive answer that I'm not aware of. Has there ever been a case of a CC licensor withdrawing their offer, and then proceeding against a user of their IP whose only claim to enjoy a licence depended on taking up a post-withdrawal "automatic offer"?
At least based on my current knowledge of Australian law, I think the OGL's mechanism, supplemented by the facts of WotC's representations, is more reliable than the CC licence's mechanism. If someone has an argument that it's less reliable I'd be very interested in hearing it.
robconley
Hero
No the deauthorization of the OGL 1.0a meant one of two things.
Either the works originated in part from the D20 SRD or 5.1 SRD. In which case the only way to continue to share or sell was to agree to a new much more onerous license.
The work did not use the d20 SRD or 5.1 SRD in which case the owner of the IP would have had to re-release the work under a new license. As the OGL 1.0a is no longer available for use. If the owner of the IP has sadly passed away or is no longer involved then the work becomes orphaned and has to be removed from sale.
So no Wizards did not just take a shot at folks using the content of the 5e SRD.
robconley
Hero
The only case I am aware of in the United States that is on point is SCO vs. IBM and that was about the GPL. SCO (or the previous company they bought the IP from) for a time offered Linux under the GPL along also contributed work to Linux. And this happened to incorporate the IP they were fighting about. But SCO tried to say that they deauthorized their contribution. And ultimately did not win their point.
But to be clear this was a messy, messy, case and this was just one of the many IP issues they argued about.
You will find that ruling are thin on open licenses as companies go out of their way to avoid getting dragged into courts to avoid setting a precedent.
It didn't mean either of those things, in my view.
In your first scenario, parties could continue to rely on their existing licensed rights.
In your second scenario, the existing agreements between private parties, to which WotC is not privy, remain on foot as always, and those parties rely on express or implied permission from WotC to reproduce the text of the OGL which is copyright WotC.
robconley
Hero
To be clear I advocate for an OGL 1.0b not because I think it is legally needed. I think it is needed socially to provide clarity to the hobby that yes OGL 1.0a open content remains available for use. And I do so knowing that even with a OGL 1.0b it use will go into decline in favor of CC and alternatives like ORC. I know of several niches in the hobby and industry that remain dependent on OGL 1.0a continued existence and utility. And that they can not easily remove themselves from its use. For example the Cepheus Game Engine.
Maxperson
Morkus from Orkus
Do you not understand what collateral damage is?
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