My thoughts on the new OGL v1.2 draft

[Greg Benage]

Have you ever dealt with a company before that is protecting its brand?

Well, I was a brand manager for a Fortune 200 company for more than a decade after leaving the game industry, so I'm going to say "yes." If I had defined and "protected" the brand the way you say Wizards is, I wouldn't have kept that job very long.

Still flabbergasted. You're a smart guy. As you say, it happens.

 

[Snarf Zagyg]

Well, I was a brand manager for a Fortune 200 company for more than a decade after leaving the game industry, so I'm going to say "yes." If I had defined and "protected" the brand the way you say Wizards is, I wouldn't have kept that job very long.

Still flabbergasted. You're a smart guy. As you say, it happens.

Okay. Did the Fortune 200 Company use an open license? Or did they have license that allowed them some degree of control over licensees.

Because ... again, outside of software, you're not going to find many open licenses in the wild, and I'm hard pressed to think of large (or Fortune 200) brands that use an open license.

 

[Voadam]

This all depends on what is the meaning of "determination" in the promise not to challenge determinations. Does it mean the outcome? Or the process? Is there an obligation of good faith or non-arbitrariness?

As I said, "WotC can try to get licensee challengers thrown out of court before any substance is brought up."
and
"sole right to decide" is pretty open for them.

In the abstract, I don't think it's quite as straightforward as you suggest.

It is not necessarily determinative, but I think they would have a strong position for defending a lot of decisions. Arguing that you are not challenging the determination or establishing that it is substantively bad faith or arbitrary are pretty high bars.

 

[Greg Benage]

Okay. Did the Fortune 200 Company use an open license? Or did they have license that allowed them some degree of control over licensees.

Because ... again, outside of software, you're not going to find many open licenses in the wild, and I'm hard pressed to think of large (or Fortune 200) brands that use an open license.

No open licenses of which I'm aware. And I agree with you that a company generally shouldn't issue an open license that includes branding rights, but of course, Wizards of the Coast didn't do that. And that's why Lamentations of the Flame Princess and the like can be in circulation for years without causing any harm to the D&D brand.

I can also understand an executive at some point deciding, "You know, our rules are still associated with our brand and it would be better protected if our license included a morality clause." Perfectly understandable! I'm flabbergasted that you buy the next move: "And that's why I'm willing to nuke the community commons that has been cultivated around my brand for the past twenty years." That's the move that is so blatantly...implausible, let's say...that, even now, it's just extraordinarily difficult for me to believe that you accept it. Especially when the bloody obvious reason is slapping you right in the face!

 

[OB1]

That's all entirely legitimate, but it doesn't speak to the potential harm caused to the publisher whose product WotC has terminated (the premise being that you'd find said product not warranting such an action). Given that your dropping WotC provides only the most minimal, indirect help for the publisher so wronged (if that), isn't it better to prevent WotC from doing such a thing in the first place? Especially since there's no method of appealing WotC's terminating their right to the use license, nor recompense for said publisher should WotC reverse their decision?

That's true, there is an increased risk for a 3PP to publish content for D&D in the new OGL, and each 3PP will have to weigh the risk/reward for doing so. That said, here is what I'll be proposing in my feedback. I've removed conduct from 6F and removed 6F from leading to immediate termination to the ability to cure the breach within 30 days of notice of the breach.

No Hateful Content. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what content is hateful.

and

(b) Termination (i) (ii) We may immediately terminate your license if you infringe any of our intellectual property; bring an action challenging our ownership of Our Licensed Content, trademarks, or patents; violate any law in relation to your activities under this license. We may terminate your license if you breach any other term in this license, and do not cure that breach within 30 days of notice to you of the breach.

 

[Aspirinsmurf]

Incidentally, I don't care that much about the VTT stuff. I'd strongly prefer that they compete with other providers rather than wall off their product, but losing that possible future is hardly the worst outcome from all this. If they can find a way to wall off their garden without nuking the commons (perhaps by putting all the SRDs under the new license), I'd consider that a win.

I don't personally care about any VTT stuff myself either, but this is dangerous rhetoric. We can't let them divide and conquer us, and so I won't even entertain the notion that I could sell out their interests in exchange for safeguarding my own in a new deal. The VTT folks should have the same rights as they've enjoyed up until now, because OGL 1.0a can't and shouldn't be illegally violated ("deauthorized").

 

[Dreamscape]

I'm flabbergasted that, on returning to these threads again and again, at 10-page intervals or so, people are still confusing OGL publications with branded material.

 

[Greg Benage]

I don't personally care about any VTT stuff myself either, but this is dangerous rhetoric. We can't let them divide and conquer us, and so I won't even entertain the notion that I could sell out their interests in exchange or safeguarding my own in a new deal. The VTT folks should have the same rights as they've enjoyed up until now, because OGL 1.0a can't and shouldn't be illegally violated ("deauthorized").

I don't even know if it's "illegal" at this point, and I rather doubt Wizards is going to come out and give us a detailed explainer on their legal strategy. I'm just looking at it from the perspective of possible outcomes, and for me, an outcome which preserves the TTRPG creative commons is a win. It's not going to change how I fill out their survey.

 

[Aspirinsmurf]

I utterly refuse to accept that this attempted maneuver is in any way legal. The "deauthorization" nonsense is hogwash. You can of course personally agree to a new license that specifically supersedes the old one if you wish (rendering it unauthorized for you specifically), but I won't. And I see no way to actually preserve the commons and achieve what I believe are WotC's goals with this.

 

[Alzrius]

I posted this a few days ago. After seeing their new draft, while much better, I don't see any carrots there

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I think that's a good way of framing the discussion. While this is less bad than the proposed OGL v1.1, you'd still expect the v1.2 draft to try and slip in a few spoonfulls of sugar by offering benefits that the OGL v1.0a didn't grant. But the v1.2 draft can be summarized as "now it's only somewhat worse than v1.0a, instead of horrifically worse."