How long do we wait for WoTC to speak?

[pemerton]

Yes, but sadly we need to distinguish between

1. Legal reality, that WoTC almost certainly cannot legally revoke OGL 1.0 licencing of their SRDs even for future products, with
2. Commercial reality, that any future Kickstarter still including OGL 1.0 is likely to be seen as tainted by potential backers.

We can both advise #1, but the people like my friend, with money in the game, have to think about #2.

All this I agree with. Frankly I think #2 is resting on a type of mass hysteria, but I don't dispute that it's the commercial reality.

I just find it odd that the hysteria seems to be playing into WotC's hands. You posted the gossip that Hasbro has a litigation war-chest and is not afraid to spend it. Now all these publishers are going to move from relying on a relatively clear contractual permission, to a far more uncertain foundation of general copyright law (at least, it seems far more uncertain to me). Creating just the opportunity for Hasbro to litigate, and with the defence being (it seems to me) far more complicated, and hence more expensive, to run.

The efforts to avoid copyright infringement also seem likely to lead these new games further away from D&D in their core presentation, which also implicates their commercial prospects.

Personally I think those who are sick of D&D for whatever reason should just pick up Torchbearer, which already exists, is pretty cheap, and sits well outside this whole OGL ecosystem. But I don't really expect Luke and Thor to profit much out of this fiasco.

 

[S'mon]

All this I agree with. Frankly I think #2 is resting on a type of mass hysteria, but I don't dispute that it's the commercial reality.

I just find it odd that the hysteria seems to be playing into WotC's hands. You posted the gossip that Hasbro has a litigation war-chest and is not afraid to spend it. Now all these publishers are going to move from relying on a relatively clear contractual permission, to a far more uncertain foundation of general copyright law (at least, it seems far more uncertain to me). Creating just the opportunity for Hasbro to litigate, and with the defence being (it seems to me) far more complicated, and hence more expensive, to run.

Yup! I've already spent a good amount of time on the copyright status of my friend's project - knowing fine well that no matter how much we revise it to remove SRD material, it's never going to give as clear-cut a defence as reliance on the OGL 1.0 would. I have explained this to her, of course.

One sense it's maybe not so irrational is that Hasbro is apparently foaming at the mouth to get rid of Open Gaming, specifically, as opposed to trying to assert a copyright in 'hit points', TSR style. People are afraid that putting out OGL 1.0 material will paint a target on their backs.

 

[chaochou]

But I don't really expect Luke and Thor to profit much out of this fiasco.

Surely Jason Morningstar should be profiting from Fiasco!

(b'dum-tish)

 

[pemerton]

@chaochou - I trust that you can show yourself out!

Also, did you ever try Torchbearer?

 

[chaochou]

Also, did you ever try Torchbearer?

I didn't, although I haven't written it off. Games in my collection are never redundant!

But at the time it arrived I was doing much more consim-boargaming / wargaming than rpg play. TB is a dense ruleset which needs time and attention, and I'm usually facing two or three of those at any one time in my wargaming - so there's only so much opportunity for a game of that heft. I played far more Apocalypse World than Burning Wheel for similar reasons, despite my fondness for the latter.

 

[pemerton]

I didn't, although I haven't written it off. Games in my collection are never redundant!

But at the time it arrived I was doing much more consim-boargaming / wargaming than rpg play. TB is a dense ruleset which needs time and attention, and I'm usually facing two or three of those at any one time in my wargaming - so there's only so much opportunity for a game of that heft. I played far more Apocalypse World than Burning Wheel for similar reasons, despite my fondness for the latter.

I think Torchbearer has more surface-level complexity than BW - as in, more sub-systems and rules elements have to be brought within contemplation of the players to get the game off the ground. But I think it probably has less depth over all.

Its tagline is "a game of desperate adventure", but I've found a way to toggle the situations I frame (without changing the underlying rules) which don't fully remove the desperation but make it probably a bit less gritty than it might default to. (But my players nevertheless make jokes about the difficulty of replacing their PCs' shoes - at the moment most are going barefoot.)

There is also scope to vary the degree of "player driven-ness" of the game. It's probably short of AW and BW in that respect, but my approach is similar to 4e D&D. The game has its own mechanisms - especially town events and allied things; also twists (one category of consequences for failure) - to create the space for the GM to introduce player-centred content/situation of the sort that is core to BW. It could be played less player-oriented and more GM-driven than the way my group does it.

Compared to AW, the structure of extended conflict resolution might seem a bit "artificial". Given the context of this thread, I'd say for D&D players used to stop-motion initiative it's not more artificial but pretty different in its structure (simultaneous blind declaration, 3 moves at a time). There is also scope for negotiation of compromise outcomes (similar to a BW Duel of Wits) which is a bit different from both AW (even allowing for "asking questions" as a key part of the AW toolkit) and D&D, though the way we play I (as GM) exercise a pretty strong degree of control here.

I find the flavour to be The Hobbit (including some of the more comedic elements) mixed with the Silmarillion (less profound tragedy, but some rather similar motifs). I don't have any hesitation in recommending it as worth a try.

 

[Ruin Explorer]

WotC's apparent goal is to drive 3PPs out of the D&D and D&D-adjacent market place. I think that (what seems to be a) widespread acceptance that they do enjoy a unilateral power to bring current licensing arrangements to an end, and (what seems to be a) widespread failure to focus on what I have bolded, is serving that goal.

(Whether their goal is consistent with their long term commercial interests is a further question that this post does not speculate on.)

If Paizo are serious about taking WotC to court should WotC try to delete 1.0a, it doesn't really matter what the fans think or accept. The strength of the legal arguments matter.

Paizo have essentially called WotC's bluff on this one - they may too be bluffing about going to court (though I doubt it) - but if not then WotC have to consider the actual strength of their legal claim.

(My personal suspicion is they already did and are backing off the "we deleted the OGL 1.0a" claim but we'll see.)

 

[dave2008]

If Paizo are serious about taking WotC to court should WotC try to delete 1.0a, it doesn't really matter what the fans think or accept. The strength of the legal arguments matter.

Paizo have essentially called WotC's bluff on this one - they may too be bluffing about going to court (though I doubt it) - but if not then WotC have to consider the actual strength of their legal claim.

(My personal suspicion is they already did and are backing off the "we deleted the OGL 1.0a" claim but we'll see.)

I agree, the most important thing so far has been Paizo coming out (finally) and saying they are are not signing the OGL 1.1 (at least implied) and that they will defend the OGL 1.0(a) in court. I don't really think that is a battle WotC wants to engage in.

That, plus the mainstream media coverage, makes me think they may be forced to retract, but, as you said, we will see.

 

[pemerton]

If Paizo are serious about taking WotC to court should WotC try to delete 1.0a, it doesn't really matter what the fans think or accept. The strength of the legal arguments matter.

It would be the other way around, which I think is important. All any 3PP has to do is keep publishing and distributing OGC, relying on their contractual rights. It is WotC which has to commence litigation, arguing that the 3PP is infringing copyright. The 3PP can then plead its contractual permission in its defence.

Paizo have essentially called WotC's bluff on this one - they may too be bluffing about going to court (though I doubt it) - but if not then WotC have to consider the actual strength of their legal claim.

I don't see what bluff Paizo has called. WotC wanted them to stop publishing under the OGL, and that seems to be exactly what they are planning to do. Now if WotC sues, Paizo's defence has to be in copyright law rather than contract law. (I'm speaking here in very broad-brush terms, and certainly am not purporting to offer either company any legal advice!)

Now maybe WotC are wrong to think that Paizo can't flourish in a non-OGL environment. And maybe they're wrong to think that litigation will run there way. That's yet to be seen. But as far as their short term goal is concerned, WotC seems to have achieved it!

 

[Ruin Explorer]

I don't see what bluff Paizo has called. WotC wanted them to stop publishing under the OGL, and that seems to be exactly what they are planning to do. Now if WotC sues, Paizo's defence has to be in copyright law rather than contract law. (I'm speaking here in very broad-brush terms, and certainly am not purporting to offer either company any legal advice!)

Now maybe WotC are wrong to think that Paizo can't flourish in a non-OGL environment. And maybe they're wrong to think that litigation will run there way. That's yet to be seen. But as far as their short term goal is concerned, WotC seems to have achieved it!

I definitely do not agree lol.

I don't for one second think WotC's main goal with 1.1 OGL was just to "get people to just stop publishing OGL stuff" any more than I think the GSL was an attempt to "stop people making 3PP material for 4E". In both cases, that was not the goal. The goal was to get 3PPs to work with them under more favourable terms for WotC whilst not doing anything that wasn't compatible with WotC's latest game. The OGL 1.1 in particular was basically designed to force major 3PPs to negotiate special contracts directly with WotC (you can see this in the OGL 2.0, assuming that leak is correct, because they make that even more explicit), whilst forcing other/newer 3PPs to either do the same if they got big or to never grow beyond a certain stunted size.

That seems to have been a miserable failure, and pretending it was never a goal is just bizarre to me. That's like a cat falling off a wall and looking at you like "I meant to do that!". We all saw you!

Scaring people who didn't want in on the OGL 1.1 into also not using the OGL 1.0a was a secondary and less-ideal goal.

If Paizo was just trying to do the ORC thing, and wasn't going to defend 1.0a in court, then at least you could argue the secondary goal was achieved. But it clearly hasn't been, and now the biggest other company in the industry (tiny compared to WotC, but more than big enough to cause a problem) is offering it's shield to the other 3PPs, and specifically offering to protect OGL 1.0a so they can continue publishing under that.

 

[jerryrice4949]

Yes, but sadly we need to distinguish between

1. Legal reality, that WoTC almost certainly cannot legally revoke OGL 1.0 licencing of their SRDs even for future products, with
2. Commercial reality, that any future Kickstarter still including OGL 1.0 is likely to be seen as tainted by potential backers.

We can both advise #1, but the people like my friend, with money in the game, have to think about #2.

Noticeablely 5E kickstarters have dried up and others are changing their projects prior to launch however a Nightfell KS for 5E launched on Tuesday and is doing very well. For the few left in that space they may find they do even better than before since they may have less competition.

 

[pemerton]

@Ruin Explorer

Paizo has been publishing a commercial competitor to D&D for nearly 15 years now. They were never going to sign a licence along the lines of the OGL v 1.1, given that it requires them to give up almost all of their existing business. And WotC must have known that.

Much the same is true for various OSRers, though I don't think any of them are on Paizo's scale.

I don't know about the 5e-supporting 3PPs. But given that WotC's goal was to regain control of their IP, I don't see that they are failing in that goal when all their licensees give up their licences.

Again, I am not saying anything about whether this serves WotC's longer-term commercial interests.

As far as publishers defending the existing licences in court, I can't believe that WotC hasn't anticipated that possibility. It's such an obvious one. What I'm curious about is what advice WotC have had in that respect - as per my exchange with @S'mon not far upthread, I'm one of those who thinks the better legal view is that WotC cannot unilaterally bring its existing licence agreements under the terms of the OGL v 1.0/1.0a t an end.

 

[Branduil]

@Ruin Explorer

Paizo has been publishing a commercial competitor to D&D for nearly 15 years now. They were never going to sign a licence along the lines of the OGL v 1.1, given that it requires them to give up almost all of their existing business. And WotC must have known that.

Much the same is true for various OSRers, though I don't think any of them are on Paizo's scale.

I don't know about the 5e-supporting 3PPs. But given that WotC's goal was to regain control of their IP, I don't see that they are failing in that goal when all their licensees give up their licences.

Again, I am not saying anything about whether this serves WotC's longer-term commercial interests.

As far as publishers defending the existing licences in court, I can't believe that WotC hasn't anticipated that possibility. It's such an obvious one. What I'm curious about is what advice WotC have had in that respect - as per my exchange with @S'mon not far upthread, I'm one of those who thinks the better legal view is that WotC cannot unilaterally bring its existing licence agreements under the terms of the OGL v 1.0/1.0a t an end.

Given all their other recent decisions, this might be giving the current leadership too much credit.

 

[pemerton]

Given all their other recent decisions, this might be giving the current leadership too much credit.

I think even mediocre corporate executives are capable of understanding that rival firms won't sign licence deals which oblige them to give up their business!

EDIT: I guess there's the possibility that they thought they might negotiate a different royalty arrangement with Paizo. If there's litigation, of course that's still on the table. @S'mon did link (in another thread) to some industry gossip that suggested WotC/Hasbro is ready to use hard negotiation tactics!

 

[Branduil]

I think even mediocre corporate executives are capable of understanding that rival firms won't sign licence deals which oblige them to give up their business!

EDIT: I guess there's the possibility that they though they might negotiate a different royalty arrangement with Paizo. If there's litigation, of course that's still on the table. @S'mon did link (in another thread) to some industry gossip that suggested WotC/Hasbro is ready to use hard negotiation tactics!

I honestly think they did believe that. At the very least, they thought a sufficient number of them would, as opposed to... literally zero.

 

[S'mon]

Now my friend is looking at publishing the current draft OGL version of the project right away, including all SRD-derived material, so as to be published prior to any cutoff date WoTC impose. It's around 155,000 words, the kind of rough version that often goes to backers immediately at the close of a Kickstarter.

 

[pemerton]

I honestly think they did believe that. At the very least, they thought a sufficient number of them would, as opposed to... literally zero.

Both the posts that you replied to were talking specifically about Paizo. I don't believe that WotC every believed, even for a moment, that Paizo would just shut down their business at WotC's insistence. They will have planned for negotiations.

As far as 5e-supporting 3PPs are concerned, I repeat what I posted: given that WotC's goal was to regain control of their IP, I don't see that they are failing in that goal when all their licensees give up their licences.

 

[pemerton]

Now my friend is looking at publishing the current draft OGL version of the project right away, including all SRD-derived material, so as to be published prior to any cutoff date WoTC impose. It's around 155,000 words, the kind of rough version that often goes to backers immediately at the close of a Kickstarter.

For all the obvious reasons I don't want to give your friend needless and gratuitous advice.

But I think this is an interesting illustration of the situation that WotC has created, and that- even if they're moderately incompetent - they must have anticipated: namely, uncertainty among 3PPs as to what are the most commercially and legally viable options. Combine that with a fairly ruthless litigation strategy and you can see the rough direction in which they are trying to head.

I'm willing to believe that they didn't anticipate such a strong PR backlash, but that's separate from the particular goal of reclaiming control of their IP. (Of course it's not separate from their overall medium-to-long term commercial prospects.)

 

[Ruin Explorer]

They were never going to sign a licence along the lines of the OGL v 1.1, given that it requires them to give up almost all of their existing business. And WotC must have known that.

Yes.

That's what I said.

The OGL 1.1 in particular was basically designed to force major 3PPs to negotiate special contracts directly with WotC (you can see this in the OGL 2.0, assuming that leak is correct, because they make that even more explicit)

They knew Paizo etc. wouldn't sign the OGL. The OGL 1.1 is just the stick and/or for "the little people", and I ain't talking hobbits and gnomes. But I don't buy that they didn't think it would bring Paizo "to heel".

But given that WotC's goal was to regain control of their IP, I don't see that they are failing in that goal when all their licensees give up their licences.

I just don't see that as a primary goal. If it was, the OGL 1.1 was designed pretty badly. Also, what are you even talking about? If the OGL 1.0a is successful defended, no-one has given up any licences.

As far as publishers defending the existing licences in court, I can't believe that WotC hasn't anticipated that possibility. It's such an obvious one. What I'm curious about is what advice WotC have had in that respect - as per my exchange with @S'mon not far upthread, I'm one of those who thinks the better legal view is that WotC cannot unilaterally bring its existing licence agreements under the terms of the OGL v 1.0/1.0a t an end.

Companies get bad or questionable legal advice pretty frequently.

The fact that WotC put the OGL 1.1 out with those godawful comments, which are a combination of horrible "How do you do, fellow kids?" drivel and actual misrepresentations tells me they were getting bad legal advice, and or straight-up ignoring legal advice. I mean there is literally no way my law firm would have let that go out, we'd literally have stopped representing the client first (I base this on a couple of incidents I can't go into detail on but still). They sent this to a bunch of serious 40-60-somethings who run proper businesses, for god's sake! The commentary is infantile.

What does that tell you? I think what it tells you is that they have little respect for/regard of/understanding of the 3PP market. They don't even understand their competitors. They thought they could bring the big ones to heel, and force this on the smaller ones.

I'm not even sure they fully understood the collateral damage re: 1.0a being deleted, they just thought that people should only make stuff for 5E and only under their terms.

The other question for me is, is this in-house stuff, and WotC's in-house team just totally doesn't understand the D&D/RPG market-space, even though that's the entire reason you have in-house lawyers, or did they bring in some external firm of lawyers, totally failed to brief them accurately about the market-space and discouraged them from researching it (which would be easy to do, frankly, just say "We're the biggest by a huge margin, obviously everything we say is definitely 100% accurate!")?

 

[S'mon]

Yes.

That's what I said.

They knew Paizo etc. wouldn't sign the OGL. The OGL 1.1 is just the stick and/or for "the little people", and I ain't talking hobbits and gnomes. But I don't buy that they didn't think it would bring Paizo "to heel".

I just don't see that as a primary goal. If it was, the OGL 1.1 was designed pretty badly. Also, what are you even talking about? If the OGL 1.0a is successful defended, no-one has given up any licences.

Companies get bad or questionable legal advice pretty frequently.

The fact that WotC put the OGL 1.1 out with those godawful comments, which are a combination of horrible "How do you do, fellow kids?" drivel and actual misrepresentations tells me they were getting bad legal advice, and or straight-up ignoring legal advice. I mean there is literally no way my law firm would have let that go out, we'd literally have stopped representing the client first (I base this on a couple of incidents I can't go into detail on but still). They sent this to a bunch of serious 40-60-somethings who run proper businesses, for god's sake! The commentary is infantile.

What does that tell you? I think what it tells you is that they have little respect for/regard of/understanding of the 3PP market. They don't even understand their competitors. They thought they could bring the big ones to heel, and force this on the smaller ones.

I'm not even sure they fully understood the collateral damage re: 1.0a being deleted, they just thought that people should only make stuff for 5E and only under their terms.

The other question for me is, is this in-house stuff, and WotC's in-house team just totally doesn't understand the D&D/RPG market-space, even though that's the entire reason you have in-house lawyers, or did they bring in some external firm of lawyers, totally failed to brief them accurately about the market-space and discouraged them from researching it (which would be easy to do, frankly, just say "We're the biggest by a huge margin, obviously everything we say is definitely 100% accurate!")?

To me it reads as if it (OGL 1.1) HAS to have been drafted primarily by in-house Hasbro lawyers with no external reputation to lose. Both the weird informal tone/fake mateyness, and that they must have been told "Find us SOME way to say the OGL 1.0's no longer valid".