Cory Doctorow writes about the OGL 1.1

[Grantypants]

I usually agree with most of what Doctorow says, but here I think he overlooks the significant value of a safe harbor. Limiting what 3pps can publish in exchange for not putting the 3pp through a lawsuit (even a lawsuit that the 3pp should eventually win) was a good deal for just about every 3pp. The old OGL didn't prevent you from using anything that was worth defending a copyright lawsuit in order to use.

 

[Dausuul]

He makes a good point that the OGL never did allow you to use anything that you, in theory, weren't allowed to use anyway via copyright law.

No, that's not true. Doctorow even acknowledges this in passing -- the OGL permits you to reproduce the text expression of a mechanic, not just the mechanic itself -- and that is potentially copyrightable. Ditto flavor text.

He tosses this off as if it's trivial, but that isn't necessarily the case, particularly if you want to make a product that's compatible with D&D.

 

[Composer99]

Doctorow's take comes across as "you should have known this was what you were getting into even though we have unambiguous statements to the contrary from Ryan Dancey and WotC for years and a walk-back from their previous walled-garden license to boot and you never needed to do it anyway".

It is, in short, a take that depends on 3PP having the wherewithal to potentially fight things out in court with Hasbro. (Was there anyone for whom that was true at the turn of the century?)

That is not, to my mind, the most well thought-out take.

 

[Nylanfs]

This is a pretty awful take, to be frank. First off, he ignores the fact that the OGL was originally written based on the same open software licenses he praises, “irrevocable” just wasn’t used in those licenses at the time.

I pointed that out to him in a tweet, with a relevant webarchive link to a interview with Dancey BEFORE the license was released.

 

[CapnZapp]

He repeats Kit Walsh's position that if the license doesn't say the magic word "irrevocable," it's revocable.

He also kind of accuses the people that drafted the original OGL of intentionally retaining the rugpull option:

The OGL predates the #CreativeCommons licenses, but it neatly illustrates the problem with letting corporate lawyers - rather than public-interest nonprofits - unleash "open" licenses on an unsuspecting, legally unsophisticated audience.

But there is a thread where the legal counsel (that now works at Paizo) quite emphatically states the intention actually was to create a truly open irrevocable license.

 

[CapnZapp]

he perpetual/irrevocable switcheroo is the least of the problems with the OGL. As
@gsllc
- an actual lawyer, as well as a #DiceLawyer - wrote back in 2019, the OGL is a grossly defective instrument that is significantly worse than useless.

Alternative take: the OGL was wonderful and allowed for lots of creativity.

Sure, as a lawyer, the position "it's legal anyway" is good enough.

But to 3PP, it isn't. The OGL/SRD removed the fear of getting sued, and that's what enabled Pathfinder, Dungeon Crawl Classics, and a hundred other supplements.

 

[Uni-the-Unicorn!]

Do people around here sleep!?

/s.

That is as my lunch break - must be different time zines

 

[rcade]

A not too small part of this seems to focus on the "You were signing away your rights with the OGL, as you can't copyright mechanics anyway" stuff we're hearing a lot.

I think a lot of people knew that already, but without a truly clear-cut distinction between mechanics and 'trade dress' or whatever the presentation might be called, people wouldn't have risked that. Lawyers being scary etc.

Yep. When the OGL was created, this was discussed by game publishers and wanna-be publishers who went on to success publishing OGL-licensed games. "You can't copyright mechanics" wasn't as reassuring an environment to create in as the safe harbor that the OGL offered.

"Use the SRD and follow the OGL under this open license" was a safe harbor.

"Reuse D&D mechanics because everybody says they can't be copyrighted" not so much. TSR/WOTC had gone after Role Aids and other publishers had gotten cease and desist letters in the decades preceding the OGL.

 

[Ruin Explorer]

But to 3PP, it isn't. The OGL/SRD removed the fear of getting sued, and that's what enabled Pathfinder, Dungeon Crawl Classics, and a hundred other supplements.

Exactly. Even if the legal position was already potentially fine, nobody knew it, because They Sue Regularly mostly managed to stay out of court - the one time with Mayfair when it could go to court and TSR felt they might lose, they settled. They later successfully sued Mayfair but for different reasons (largely misplacing a logo!), which avoided the issue of "can you make a D&D supplement?". Almost all the other cases I'm aware of at most got to injunction or complaint stage, and never saw trial.

But the OGL clarified the situation and got rid of that fear pretty quickly, because even sassy-ass moves with the OGL (and d20 STL) were taken with relative equanimity by WotC of the time.

 

[rcade]

This is a pretty awful take, to be frank. First off, he ignores the fact that the OGL was originally written based on the same open software licenses he praises, “irrevocable” just wasn’t used in those licenses at the time. Now, should the OGL have been updated to include that word when software licenses started doing so? Yeah, no doubt.

Rewriting the OGL would've opened a can of worms at Hasbro that the insiders who supported open gaming might not have wanted to open. Ryan Dancey and others had already achieved the miracle of getting the SRD shared under an open license.

The original OGL was good enough that Hasbro/WOTC supported open gaming as recently as May 2016 when the current System Reference Document was last updated.

Ryan Dancey left WOTC in late 2002, per Wikipedia. So he wouldn't have been around the company when court battles led to some wording changes in open source licenses.