OGL Foundry VTT Responds to OGL 1.2 Draft

Steel_Wind

Legend

The following was posted by Foundry Gaming, LLC on its website on the afternoon of January 20, 2023:​

________________________________________________

OGL 1.2 Response and Feedback​

Updated January 20, 2023​

Yesterday, Wizards of the Coast shared a post Starting the OGL "Playtest" which introduces draft terms of a new Open Gaming License Version 1.2 (hereafter called OGL 1.2). This new license is intended to replace the prior Open Gaming License version 1.0a (OGL 1.0a) which has served and empowered the tabletop gaming industry since 2000.

These new license terms are shared for public discussion after several false starts. "OGL Version 1.1" was a far more restrictive license - to the extent of not being an open license at all. A FAQ which circulated regarding "OGL Version 2.0" maintained many of the objectionable restrictions in version 1.1 that prompted community outrage. This latest version (OGL 1.2) is a constructive step, doing away with many of the most dangerous clauses of version 1.1, but it is still regressive compared to the original OGL 1.0a. We commend the team at Wizards of the Coast for taking community grievances seriously and for admitting the mistakes that led to OGL 1.1 and the breakdown of communication which followed.

Wizards of the Coast is now asking for community feedback on the draft OGL 1.2 license terms, but without further effort to engage directly with the creators who would be accepting the license this survey process may be a hollow gesture. This article provides feedback from the Foundry Virtual Tabletop team, views which have not been otherwise solicited by Wizards of the Coast.

The Draft OGL 1.2​

Despite these improvements, there are still some serious problems with OGL 1.2. Wizards of the Coast has invited community discussion on this matter, and it is important for us to advocate for our users, our product, and the value that we bring to the D&D community.

Unwitting acceptance​

There is a particularly dangerous combination of statements in OGL 1.2 which, unless corrected by Wizards of the Coast, may result in creators unknowingly and non-consensually accepting the terms of this new license.

By using Our Licensed Content, you agree to the terms of this license.
DRAFT: OGL 1.2, pg. 1
Our Licensed Content. This license covers any content in the SRD 5.1 (or any subsequent version of the SRD we release under this license) that is not licensed to you under Creative Commons. You may use that content in your own works on the terms of this license.
DRAFT: OGL 1.2, 1.a.i
If a creator uses content from the SRD version 5.1 - the current version of the SRD which has been available since May 2016 - they implicitly agree to the terms of the OGL 1.2 license. This means that simply by publishing content that was developed under 1.0a and SRD version 5.1, many creators will unknowingly accept the 1.2 terms. This could be avoided with an explicit grace period for ongoing projects and an obvious version number increase to the SRD which makes it clear that by using that game content you are accepting OGL 1.2.

Deauthorization does not apply​

OGL 1.2 perseveres with a dubious attempt to deauthorize the prior OGL 1.0a. Any creator who agrees to it affirmatively gives up their rights to continue using OGL 1.0a. The new license acknowledges that "previously published content" is unaffected but attempts to cast doubt into the validity of continued usage of OGL 1.0a for the creation, revision, or distribution of works. This is a misrepresentation of the text and clearly documented intention of the Open Game License. WOTC should focus on a path forward that incentivizes creators to adopt the new license because it offers superior access to game content - including content for One D&D - rather than focusing misguided effort on trying to nullify the prior license.

Irrevocable unless decided otherwise​

The new OGL 1.2 does include the significant term irrevocable, however, Wizards of the Coast has provided themselves with several ways to cancel the license either individually or in total.

Severability​

The Severability clause (9.d) provides WOTC with the ability to declare the entire license void - nullifying it for all creators who have ever used it - if "any part of this license is held to be unenforceable or invalid for any reason". Such a judgment would be easy for WOTC to obtain, if desired. There are several clauses in the document which could be deemed unenforceable.

Termination​

The Termination clause (7.b.i) allows for a creator's license to be terminated unilaterally and immediately for any infringement on intellectual property without a period of notice or opportunity to cure said breach (as required by the original OGL 1.0a). If a creator were to accidentally use aspects of WOTC material which belong to the "Our Unlicensed Content" category, that creator could have their rights to the OGL immediately cancelled with no opportunity to correct the mistake. Would WOTC do this? If there were a creator they wished to eliminate, they might scour that creator's historical body of work looking for anything that can be argued as infringement of intellectual property rights. To be clear we neither support nor advocate for intellectual property rights infringement - however such rights are a complex topic and creators should be given notice and allowed to correct an error without having the licensing rights to their body of work nullified.

Class Action Waiver​

Creators using OGL 1.2 waive all right to participate in class, collective, or joint action. Wizards of the Coast may take legal action against creators individually without the possibility for peers in the industry who would also be affected by such a ruling to participate or aid in that legal action. Every individual creator becomes responsible for maintaining that every clause in the OGL 1.2 is valid and enforceable in any legal action, otherwise WOTC could declare the license void for all creators.

Creators adopting the OGL are looking for a license which inspires confidence that the foundation for their personal and financial investment is secure and stable. These clauses provide too much wiggle-room for Wizards of the Coast to take away a creators' rights if they deemed it necessary to do so.

The Virtual Tabletop Policy​

The draft OGL 1.2 license references a separate document, the "Virtual Tabletop Policy", which covers the terms under which virtual tabletops and VTT content for may be offered under the OGL. Unfortunately, this policy is severely flawed.

A crucial issue with this document is that it is a policy rather than part of the legal terms of the OGL itself. As a policy, it may be changed without altering the terms of OGL 1.2. If Wizards of the Coast were to decide in the future that they are not actually "big fans of VTTs", this could easily become a restrictive policy which states that VTTs are not permitted. Just as print publishers have rightly insisted that the OGL must be irrevocable, the rights granted to software projects must also have a secure and trustworthy foundation to justify the investment required to create digital tools.

In addition to the concerning fluidity of the policy, the document is frustratingly vague with regards to what is permitted, stating:

What is permitted under this policy?
Using VTTs to replicate the experience of sitting around the table playing D&D with your friends.
So displaying static SRD content is just fine because it’s just like looking in a sourcebook. You can put the text of Magic Missile up in your VTT and use it to calculate and apply damage to your target. And automating Magic Missile's damage to replace manually rolling and calculating is also fine. The VTT can apply Magic Missile's 1d4+1 damage automatically to your target’s hit points. You do not have to manually calculate and track the damage.
What isn't permitted are features that don’t replicate your dining room table storytelling. If you replace your imagination with an animation of the Magic Missile streaking across the board to strike your target, or your VTT integrates our content into an NFT, that’s not the tabletop experience. That's more like a video game.
DRAFT: Wizards of the Coast Virtual Tabletop Policy

Thou shalt not animate​

The perplexing focus on animation of spell effects is an absurd heuristic as the primary example of what makes a virtual tabletop different from a video game. If differentiating between a VTT and a video game is essential (we contend it is not), there are far more cogent classifiers to use. Are the actions of both player and non-player characters controlled by a human? Does the game experience provide a framework for collaborative storytelling? Can the gamemaster invent new rules on the fly? Surely virtual tabletops and video games alike may both have animation present in the way they communicate information visually to users.

Even if a focus on "animation" is removed, it is concerning that Wizards of the Coast would choose which software features are appropriate for a virtual tabletop to implement and which are not.

Is this really about NFTs?​

Equally absurd is the emphasis on NFTs as an insinuated threat of what virtual tabletops would do if left unchecked by a governing policy from WOTC. This paragraph reads as a sort of confused fearmongering that seeks to limit the quality of virtual tabletop software. The virtual tabletops that are used and beloved by the community do not incorporate NFTs, nor would they remain beloved by the community if they were to do so.

Be good, but not too good​

Under this policy, virtual tabletops should only replicate (but not improve upon) the experience of sitting around a physical table. This myopic perspective neglects that modern VTT software augments the experience of traditional play by heightening the quality of experience for players at the table, regardless of whether the game is played in-person or remotely. For many gamers virtual tabletop software is an integral part of the TTRPG experience and not just a fallback option when a traditional mode of play is unavailable. We would have expected a team who are "gamers and big fans of VTTs" to understand this.

Dissecting the clumsy wording of this policy is ultimately a distraction from a more fundamental question. Is it right for an open gaming license to restrict product formats at all? If a goal of the OGL 1.2 license is to foster creativity and further grow the profile of D&D as a game and as a brand, its authors are misled in attempts to suppress technological innovation that can enrich the quality of play or empower storytellers to deliver immersive experiences.

Rewriting historical intent​

The current Open Gaming License (1.0a) and its authors were not restrictive in this regard. This is made clear by the Open Game License: Frequently Asked Questions featured on the Wizards of the Coast website as recently as November 2021.

Q: I want to distribute computer software using the OGL. Is that possible?
A: Yes, it's certainly possible. The most significant thing that will impact your effort is that you have to give all the recipients the right to extract and use any Open Game Content you've included in your application, and you have to clearly identify what part of the software is Open Game Content.
One way is to design your application so that all the Open Game Content resides in files that are human-readable (that is, in a format that can be opened and understood by a reasonable person). Another is to have all the data used by the program viewable somehow while the program runs.
Distributing the source code not an acceptable method of compliance. First off, most programming languages are not easy to understand if the user hasn't studied the language. Second, the source code is a separate entity from the executable file. The user must have access to the actual Open Content used.
See the Software FAQ for more information.
Open Game License: Frequently Asked Questions
Even further detail is provided in the mentioned Software FAQ:

Q: So what kinds of programs can I make with the OGL?
A: Anything. Character generators are popular, as are programs that help GMs keep track of their adventure. Random treasure generators are also fun.
Q: So I could make a game?
A: Sure. Remember though, you cannot use any Product Identity with the OGL or claim compatibility with anything. So you can't say your game is a d20 System game or uses D&D rules or call it Elminster's Undermountain Crawl.
These FAQs make the open intention of the OGL abundantly clear, neither do they reflect a single employee's opinion. These documents were published in 2004 and maintained on the WOTC website until November 2021 when they were removed without comment. In the blog post on D&D Beyond, Kyle Brink states:

For over 20 years, thousands of creators have helped grow the TTRPG community using a shared set of game mechanics that are the foundation for their unique worlds and other creations. We don't want that to change, and we've heard loud and clear that neither do you.
D&D Beyond "Starting the OGL 'Playtest'" Blog Post
Wizards of the Coast is communicating a clear goal to continue their commitment to open gaming, citing the tradition of the past 20 years. Restrictions placed specifically on software, regardless of the blurry distinction between whether that software is a virtual tabletop or a video game, were never part of the OGL. Adding such restrictions limiting use of content in digital formats should be clearly seen as a targeted and anti-competitive measure designed to limit innovation and reduce the quality of products available to customers.

A Robust Conversation?​

There has been a clear change in approach by leadership at Wizards of the Coast in terms of how they engage with the community on this issue. The change in tone of the conversation and the increased level of communication from WOTC is refreshing and encouraging. Kyle Brink has done a good job providing communication that is more transparent and relatable. Kyle writes about the need to have a "robust conversation" about this topic and the desire to "support VTT usage for both OGL creators and VTT operators". We hope that commitment to discussion is sincere. The VTT Policy concludes with:

You say this is a conversation. Does that mean this policy can change?
Yes! We need your feedback as the tabletop space evolves. The potential of VTTs is tremendous and exciting, and we don't want to harm their development.
DRAFT: Wizards of the Coast Virtual Tabletop Policy
The sentiment here and invitation to provide feedback is welcome. The text and implied subtext of the Virtual Tabletop Policy, however, causes us to feel that Wizards of the Coast does want to harm the development of Foundry Virtual Tabletop. If that is not the case, a robust conversation is needed to align on a mutually beneficial path forward. Our sincere efforts to engage with Wizards of the Coast on this matter have been met with long periods of silence, lack of response to emails, and a history of postponed discussions.

To Wizards of the Coast​

If it is genuinely the desire of Wizards of the Coast to foster a space where virtual tabletop usage and operation is supported, I sincerely encourage Kyle and the WOTC team to reach out and reestablish a constructive dialog. VTT usage and digital content is clearly a key area of focus for the new OGL. Talking with the people who create and operate virtual tabletops should be a key area of focus for the conversation that determines the path forward.

More broadly, you are proposing a contract that you want creators, publishers, and virtual tabletop operators to accept. We urge you to consult with the parties who would agree to those terms, otherwise this process more closely resembles an appeal to the community for permission than a desire to iterate together.

We stand with the community in calling for an open D&D using an Open Gaming License.

To Our Community​

For the members of our community and members of the TTRPG community at large who care about the future for digital tools in this hobby, we urge you to respectfully share these concerns with Wizards of the Coast when given the opportunity to provide survey feedback on the Draft OGL 1.2.

Please engage respectfully with this topic using the following resources:

Thank you all for your support and advocacy for Foundry Virtual Tabletop and other software projects during this conversation.

The Foundry Virtual Tabletop Team
 

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dave2008

Legend
For the record, I do not agree with the legal result suggested in Foundry's comments above re: "unwitting acceptance", but the rest of it is persuasive, if not correct.
I have also heard from lawyers on these forums that it is a poor / incorrect legal interpretation as well. I wish the had not said that as it feels like fear-mongering and most of the other points are quite valid. I hadn't really looked at the VTT policy and a lot of this does seem completely ridiculous. I was all for WotC separating the VTT from the OGL, but now I've started to change my mind.
 

Steel_Wind

Legend
At this point? I don't think it matters much. Imo, WotC is no longer persuadable on this point - they are going to do what Cao wants them to do. As it so happens - I am not persuadable in terms of my reaction to all of this either. I'm out.

IMO, we are at the fork in the road; the point of mutual "Screw Yous". The rest is just PR and posturing.
 

Alzrius

The EN World kitten
At this point? I don't think it matters much. Imo, WotC is no longer persuadable on this point - they are going to do what Cao wants them to do. As it so happens - I am not persuadable in terms of my reaction to all of this either. I'm out.

IMO, we are at the fork in the road; the point of mutual "Screw Yous". The rest is just PR and posturing.
That seems to be the case. At this point I expect it's only a matter of time before we get to the court case which decides whether or not the OGL v1.0a is revocable or not.
 

Dausuul

Legend
At this point? I don't think it matters much. Imo, WotC is no longer persuadable on this point - they are going to do what Cao wants them to do. As it so happens - I am not persuadable in terms of my reaction to all of this either. I'm out.

IMO, we are at the fork in the road; the point of mutual "Screw Yous". The rest is just PR and posturing.
I think you're almost certainly right, but I'll send them survey feedback anyway. I'll engage until such time as they actually move forward with "de-authorizing" the OGL.

That seems to be the case. At this point I expect it's only a matter of time before we get to the court case which decides whether or not the OGL v1.0a is revocable or not.
We might be waiting a while for that, though. Wizards has every incentive to drag its feet on filing such a suit. It would mean another wave of bad publicity, and they would run the risk of losing, at which point the possibility of a lawsuit would no longer be an effective threat.

As far as I can see, the only way this ends up in court is if a big player continues to rely on OGL 1.0a, and makes enough noise about it to effectively call WotC's bluff (by making it clear to the world that WotC isn't willing to back up their threats). I'd love to see that happen, but it's a lot to ask of any 3PP. There's a reason most of them have chosen to de-OGLify their stuff instead.
 
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Steel_Wind

Legend
That seems to be the case. At this point I expect it's only a matter of time before we get to the court case which decides whether or not the OGL v1.0a is revocable or not.
A court case leading to a meaningful decision on the merits might happen, but I think the chances of that are low.

WotC has chased the entirety of all other publishers to the ORC, to a 5e fork, or to PF2. Those gamers have been essentially told to continue on with those games at the table and via VTT play through Foundry, Roll20, FG and whatever other VTTs will surface over the course of time.

That list of games or VTTs is certainly not closed -- there will be others which will come along and someday, one or more of them will prove to be better. I wouldn't want it any other way.

In the end, Wizards of the Coast may do well with their new product, or they may well find they have bitten off more than they can chew. We'll see. TBH, I doubt it will be a true success. They have already rolled a critical failure in how all of this crap was handled back in December 2022. They won't recover from that.

I'd be lying if I said I wish them well. I really don't.
 

Alzrius

The EN World kitten
WotC has chased the entirety of all other publishers to the ORC, to a 5e fork, or to PF2.
The publishers (many of them smaller outfits) who relied on a game system derived from the 3.5 SRD don't have that option, and so have little recourse but to either abandon those games completely or seek a judicial ruling (albeit only after WotC tries to say they infringed their copyright). As someone who likes several of those derived games, I hope they go for the latter instead of the former.
 

Steel_Wind

Legend
The publishers (many of them smaller outfits) who relied on a game system derived from the 3.5 SRD don't have that option, and so have little recourse but to either abandon those games completely or seek a judicial ruling (albeit only after WotC tries to say they infringed their copyright). As someone who likes several of those derived games, I hope they go for the latter instead of the former.
Sure they do. They can just ignore it and go on publishing. There is a color of right under the OGL 1.0a, it's not like there is any realistic prospect of a jail sentence at the end of somebody's commercial calculus. It's just money.

Is WotC likely to take any action at all in response? No and hell no, imo. If WotC were going to do anything about that in court, they would have done that in 2009 or 2010 -- or at some point before they withdrew 4th ed from the market. Which is to say: when it had a commercial impact upon their real financial interests.

WotC doesn't really care about that now. The last thing WotC wants to do is pick a fight they don't have to win with Paizo -- who can afford to fight with them and has facts, evidence and witnesses on their side. Just because somebody can bring a lawsuit does not mean that they will do so. Lawsuits are brought for commercial reasons, not to make an academic point.

Follow the money. There's no money there for WotC. The risk of WotC commencing litigation related to SRD 3.5 based material, realistically assessed, are very, (if not exceedingly) low, imo.

The opinion that really matters though are those of the 3pp(s) who decide to roll the dice and take the gamble.
 
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Dausuul

Legend
Sure they do. They can just ignore it and go on publishing. There is a color of right under the OGL 1.0a, it's not like there is any realistic prospect of a jail sentence at the end of somebody's commercial calculus. It's just money.

Is WotC likely to take any action at all in response? No and hell no, imo. If WotC were going to do anything about that in court, they would have done that in 2009 or 2010 -- or at some point before they withdrew 4th ed from the market. Which is to say: when it had a commercial impact upon their real financial interests.

WotC doesn't really care about that now. The last thing WotC wants to do is pick a fight they don't have to win with Paizo -- who can afford to fight with them and has facts, evidence and witnesses on their side. Just because somebody can bring a lawsuit does not mean that they will do so. Lawsuits are brought for commercial reasons, not to make an academic point.

Follow the money. There's no money there for WotC. The risk of WotC commencing litigation related to SRD 3.5 based material, realistically assessed, are very, (if not exceedingly) low, imo.

The opinion that really matters though are those of the 3pp(s) who decide to roll the dice and take the gamble.
Right now, the one prospect I see for a case being filed is the topic of this thread: Foundry.

If what we've been hearing is true, then the whole purpose of this exercise is to let Wizards crush rival VTTs and clear the way for their own offering. Foundry relies heavily on the OGL 1.0a, and has declared that they intend to continue doing so. If Wizards is going to sue anybody at all, that's who it will be.

(Corollary: We the community should show our public support for Foundry, including a willingness to crowdfund their defense, to make it harder for Wizards to intimidate them into backing down.)
 

Steel_Wind

Legend
As far as I can see, the only way this ends up in court is if a big player continues to rely on OGL 1.0a
The reason WotC has gone forward with OGL 1.2 is all about interactive software. It is entirely about s. 1(b):

"(b) Works Covered. This license only applies to printed media and static electronic files (such as epubs or pdfs) you create for use in or as tabletop roleplaying games and supplements (“TTRPGs”) and in virtual tabletops in accordance with our Virtual Tabletop Policy (“VTTs”)."

If somebody does something in reliance upon the OGL 1.0a in relation to interactive software? Then the litigation risk is significant, imo and is certainly the kind of risk that a prudent business person should take into account when conducting their affairs.

Shy of that? Probably not. We can quibble about the nature and degree of that probability and how it affects somebody's risk vs reward equation, but that decision is ultimately up to whoever decides to rolls those dice and take that gamble. It's a business decision, not really a legal decision. And it's one that isn't up to you or me.

So if Brilliant Thief Games LLC decides to release a new archetype and related rules for PF1 based on the Alchemist class, say, and relies upon OGL 1.0a and the 3.5 SRD as authorizing that in whole or in part on DriveThru RPG, are they going to get sued?

No, probably not.

If Paizo were to do that instead, (and to be clear, they have no commercial interest in doing that) would they get sued?

No, very probably not.

But if Foundry Gaming, LLC, say, decides to release Foundry VTT 2.0 for 5e and purports to do so under the OGL 1.0a? Then it's probably time to unlimber the guns and get ready for war in court.
 
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Steel_Wind

Legend
Right now, the one prospect I see for a case being filed is the topic of this thread: Foundry.

If what we've been hearing is true, then the whole purpose of this exercise is to let Wizards crush rival VTTs and clear the way for their own offering. Foundry relies heavily on the OGL 1.0a, and has declared that they intend to continue doing so. If Wizards is going to sue anybody at all, that's who it will be.

(Corollary: We the community should show our public support for Foundry, including a willingness to crowdfund their defense, to make it harder for Wizards to intimidate them into backing down.)
Foundry Gaming LLC has already published their software product under the OGL 1.0a. That bullet has left the chamber. They can still sell that product going forward in reliance upon the OGL 1.0a, in all probability. In terms of risk vs reward? That's a decision Andrew Clayton (Foundry's owner) will make, but I'm confident he will decide to continue selling it and that it will support the 5e SRD released under the OGL 1.0a as it always has.

He might choose, however, to offer a new version of Foundry in the future which decouples support for 5e from the product itself (or maybe not, too). I am sure he will get legal advice from competent licensed counsel and arrange his company's affairs in a way that seems best to him.

However, if Foundry were to release a wholly new product under the OGL 1.0a? Different story.
 

Xyxox

Hero
Follow the money. There's no money there for WotC. The risk of WotC commencing litigation related to SRD 3.5 based material, realistically assessed, are very, (if not exceedingly) low, imo.
SRD 3.5 was the basis for Pathfinder, and there may be little money in it, but taking out a competitor would give them enough motivation to do it. Keeping any words, spell names, monster names, etc. in Pathfinder 2E will likely result in a C&D at a minimum. I think they are going to flex at Paizo, we will see what comes.
 

eyeheartawk

#1 Enworld Jerk™
SRD 3.5 was the basis for Pathfinder, and there may be little money in it, but taking out a competitor would give them enough motivation to do it. Keeping any words, spell names, monster names, etc. in Pathfinder 2E will likely result in a C&D at a minimum. I think they are going to flex at Paizo, we will see what comes.
Yeah, I think they care less about Paizo as TTRPG competition, as they focus on the digital fffuuuuuuutttttuuuurrrreeeee, and more about the many more proper nouns granted in the 3E SRDs vs the 5.1 one.
 
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Xyxox

Hero
Yeah, I think they care less about Paizo as TTRPG competition, as they are focus on the digital fffuuuuuuutttttuuuurrrreeeee, and more about the many more proper nouns granted in the 3E SRDs vs the 5.1 one.
I think they may be going after things like "magic missiles" and "owlbear". The reasoning is competitor VTTs can do wht they want with games other than D&D and Pathfinder already has a good relationship with Foundry.
 

Dausuul

Legend
SRD 3.5 was the basis for Pathfinder, and there may be little money in it, but taking out a competitor would give them enough motivation to do it. Keeping any words, spell names, monster names, etc. in Pathfinder 2E will likely result in a C&D at a minimum. I think they are going to flex at Paizo, we will see what comes.
They can't "take out" Pathfinder 2. For one thing, it's already in print and thus covered by their "existing products are safe" rule. But even if it weren't, all they could really do is force Paizo to rename a few things.

Against that, they have to set the huge PR hit from the lawsuit, and the very real risk that they lose and the OGL 1.0a springs back into full force. There just isn't anything in it for them.
 

Jer

Legend
Supporter
They can't "take out" Pathfinder 2. For one thing, it's already in print and thus covered by their "existing products are safe" rule. But even if it weren't, all they could really do is force Paizo to rename a few things.
I will say - I'm not sure about that "existing products are safe" rule. How legally binding is that? It feels way too handwavy and dependent on Wizards being a good actor - like could you depend on it in 6 years when the executive team has overturned twice?
 

Xyxox

Hero
I will say - I'm not sure about that "existing products are safe" rule. How legally binding is that? It feels way too handwavy and dependent on Wizards being a good actor - like could you depend on it in 6 years when the executive team has overturned twice?
Could you depend on it even actually being implemented in the first place? After all, it is stated in a statement that is not legally binding and WotC have already proved they are more than willing to renege on anything they have ever said like that the OGL would always be there if they do a new license we don't like.
 

eyeheartawk

#1 Enworld Jerk™
Could you depend on it even actually being implemented in the first place? After all, it is stated in a statement that is not legally binding and WotC have already proved they are more than willing to renege on anything they have ever said like that the OGL would always be there if they do a new license we don't like.
Not just on the OGL either. See the Dragonlance and Gale Force Nine kerfuffle were they just decided to do nothing as a "novel" way to try and get out of a contract they didn't like.
 

Alzrius

The EN World kitten
We can quibble about the nature and degree of that probability and how it affects somebody's risk vs reward equation, but that decision is ultimately up to whoever decides to rolls those dice and take that gamble. It's a business decision, not really a legal decision. And it's one that isn't up to you or me.

So if Brilliant Thief Games LLC decides to release a new archetype and related rules for PF1 based on the Alchemist class, say, and relies upon OGL 1.0a and the 3.5 SRD as authorizing that in whole or in part on DriveThru RPG, are they going to get sued?

No, probably not.

If Paizo were to do that instead, (and to be clear, they have no commercial interest in doing that) would they get sued?

No, very probably not.
I'm still curious about that, simply because Paizo's decision to try and strip the OGL from their Starfinder and Pathfinder 2E lines strikes me as being more risky than staying with the OGL v1.0a. I'm no lawyer, but given how the whole "you can't copyright game mechanics, just expressions" is untested with regards to what constitutes an expression in the context of a tabletop RPG, and that there are at this point thousands of pages of Starfinder and Pathfinder 2E material, you'd think that Paizo would be leaving themselves open to a lawsuit for potential copyright infringement if they go that way (especially if they strip the OGL out of reprints of existing books in those product lines).

Now, they also leave themselves open to such a suit if they stick with the OGL, presuming that WotC tries to say that it's "revoked/de-authorized" and that Paizo is thusly infringing on copyright anyway. But my lay read of the landscape says that Paizo is more likely to prevail if they argue that the OGL v1.0a is still valid than if they try to claim that there are no copyright infringements anywhere in Starfinder or Pathfinder 2E.

Now, that's a slight digression from what you were saying, so I'll try to bring it back around; given that Paizo is WotC's largest direct competitor in the tabletop RPG business (VTTs notwithstanding, since I agree that's what this whole fiasco is really about), I have to wonder just how long WotC will be silent and let what they likely see as potential copyright infringement on Paizo's part fly.
 

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