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My thoughts on the new OGL v1.2 draft
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<blockquote data-quote="Steampunkette" data-source="post: 8908952" data-attributes="member: 6796468"><p>Cross-posting from D&D Beyond, my first post on the DDB Forums:</p><p></p><p><strong><span style="font-size: 18px">Problems with OGL 1.2a from the perspective of a 3rd party publisher. (Very small, my first book is on kickstarter, now)</span></strong></p><p><strong></strong></p><p><strong>1) De-authorization of OGL 1.0a.</strong></p><p></p><p>I write for Level Up! and the Gate Pass Gazette through EN Publishing using a sublicense of 1.0a. Once 1.0a is deauthorized, I cannot create more Level Up! or Gate Pass Gazette content. In fact no one can until either the OGL from Level Up! is removed through a Revised Edition (expensive) or EN Publishing re-publishes Level Up! with the new 1.2a license (less expensive, but locks them into 1.2a). But even the idea that WotC can unilaterally declare a version of the OGL to be "Deauthorized" results in a situation where every year, or few years, we wind up back at this point. With WotC creating their next OGL and all previous works by a company being locked down until either the OGL is removed (expensive) or they sign the new OGL (less expensive, but locks them into the new license)</p><p></p><p>It means I have no real legal protection, here, on my publishing, since the terms and conditions can change moment to moment. The OGL was implemented as a powerful foundation meant to give 3pp a sense of structure and stability around the use of the SRD to create more content for the game we all love and not fear going bankrupt to WotC's legal fees. The idea that the foundation of all of our work, and businesses, could be ripped up at a moment's notice so WotC can dictate terms on a -new- foundation is untenable.</p><p></p><p>The OGL 1.0a cannot be de-authorized if we're to move forward. It needs to be enshrined, permanently, as the 5e/3e legal document it was created to be.</p><p></p><p>If they want their new clauses, it needs to be an OGL/GSL situation. And we all saw how many people were willing to publish under the GSL.</p><p></p><p><strong>2. The Morality Clause</strong></p><p></p><p>Very nifty in theory. Very dangerous in practice. Particularly in their "Revoke the License at our discretion" with no legal recourse. I'm a bisexual transgender white woman, so the basic idea of WotC protecting my work and their own work from hateful and awful new works (like NuTSR's Star Frontiers boondoggle) is actually really joyous! But. It still gives them unilateral ability to decide what is and isn't hateful with no legal recourse or third party arbitration. Which could result in a tolerance of intolerance situation in which presenting bigots as bad guys is "Hateful Content" and my license gets pulled. I don't know if anyone is willing to risk that kind of nonsense.</p><p></p><p><strong>3. The Illegality Clause</strong></p><p></p><p>Again, seems like a great idea! You can't publish illegal content. What a no-brainer! But... LGBTQIA+ characters or existence being shown in a positive light is illegal in Russia. Paranormal Power includes a brief passage about a nonbinary child using Psionic Abilities. If I sell a copy of Paranormal Power to a Russian Citizen, I've broken Russian Law, and WotC would have legal authority to revoke my license. Even if WotC itself opposes that law, all it takes is one person at WotC with a modicum of power to say "I don't like this Steampunkette person and her work." and blammo. License revoked, no further content from me, and I have no legal recourse to oppose the decision.</p><p></p><p>Heck, Florida and other states are looking to pass laws where "Exposing Children" to LGBTQIA+ content or existence will be illegal. Which means I'd need to slap an 18+ warning on Paranormal Power to sell it in the US under OGL 1.2a to avoid getting my license revoked. How messed up is that?</p><p></p><p><strong>4. Methods into Creative Commons</strong></p><p></p><p>It's a nice gesture. But as every copyright and trademark lawyer has said over the past several weeks (and some have been screaming for years) you cannot copyright 1d20+Modifiers. It's a method or game rule rather than any form of specific protected intellectual property. By announcing they're putting the base rules of the game (but not anything they can apply IP law toward) into Creative Commons they've reached out with an olive branch made of balsa wood.</p><p></p><p>They're saying "We won't sue you into oblivion over these rules" which is great and all, but it also acknowledges that the only reason those rules were in the OGL before was an attempt to bully people into using it with legalese and the implication they'd sue us into oblivion. Even knowing they could never "Win" such a case they could drag it out over however long it took to bankrupt a 3rd party publisher.</p><p></p><p>So it's -kind- of a nothingburger and kind of a "This is already the status quo, we're just gonna make it official and unload one of the guns we've been pointing at your head in a show of good faith."</p><p></p><p><strong>5. Summation</strong></p><p></p><p>The OGL was meant to last forever. It was meant to be irrevocable and permanent. It was never meant to be "De-Authorized" at any point. The terms WotC is trying to use to get rid of it -now- did not exist as specific legal concepts when it was written, and the architects of the OGL have explained that, repeatedly. There is no situation where getting rid of the OGL 1.0a is a good thing or a positive step. Particularly since it shows WotC is entirely willing to blow up any deal it has previously made to increase the control and power they now possess for their shareholders.</p><p></p><p>WotC can no longer be trusted by third party publishers. There is no real "Path Forward" after this. The best they can do is enshrine 1.0a and pretend this fiasco never happened, but the ORC is still going to be written. And most publishers aware of this event will be signing on to it, or Creative Commons, or some other license that offers real stability long-term.</p><p></p><p>Even if they took out all the poison pills, it still can't be trusted. Wizards have shown they'll change terms whenever the like. No contract will ever be held in good faith.</p></blockquote><p></p>
[QUOTE="Steampunkette, post: 8908952, member: 6796468"] Cross-posting from D&D Beyond, my first post on the DDB Forums: [B][SIZE=5]Problems with OGL 1.2a from the perspective of a 3rd party publisher. (Very small, my first book is on kickstarter, now)[/SIZE] 1) De-authorization of OGL 1.0a.[/B] I write for Level Up! and the Gate Pass Gazette through EN Publishing using a sublicense of 1.0a. Once 1.0a is deauthorized, I cannot create more Level Up! or Gate Pass Gazette content. In fact no one can until either the OGL from Level Up! is removed through a Revised Edition (expensive) or EN Publishing re-publishes Level Up! with the new 1.2a license (less expensive, but locks them into 1.2a). But even the idea that WotC can unilaterally declare a version of the OGL to be "Deauthorized" results in a situation where every year, or few years, we wind up back at this point. With WotC creating their next OGL and all previous works by a company being locked down until either the OGL is removed (expensive) or they sign the new OGL (less expensive, but locks them into the new license) It means I have no real legal protection, here, on my publishing, since the terms and conditions can change moment to moment. The OGL was implemented as a powerful foundation meant to give 3pp a sense of structure and stability around the use of the SRD to create more content for the game we all love and not fear going bankrupt to WotC's legal fees. The idea that the foundation of all of our work, and businesses, could be ripped up at a moment's notice so WotC can dictate terms on a -new- foundation is untenable. The OGL 1.0a cannot be de-authorized if we're to move forward. It needs to be enshrined, permanently, as the 5e/3e legal document it was created to be. If they want their new clauses, it needs to be an OGL/GSL situation. And we all saw how many people were willing to publish under the GSL. [B]2. The Morality Clause[/B] Very nifty in theory. Very dangerous in practice. Particularly in their "Revoke the License at our discretion" with no legal recourse. I'm a bisexual transgender white woman, so the basic idea of WotC protecting my work and their own work from hateful and awful new works (like NuTSR's Star Frontiers boondoggle) is actually really joyous! But. It still gives them unilateral ability to decide what is and isn't hateful with no legal recourse or third party arbitration. Which could result in a tolerance of intolerance situation in which presenting bigots as bad guys is "Hateful Content" and my license gets pulled. I don't know if anyone is willing to risk that kind of nonsense. [B]3. The Illegality Clause[/B] Again, seems like a great idea! You can't publish illegal content. What a no-brainer! But... LGBTQIA+ characters or existence being shown in a positive light is illegal in Russia. Paranormal Power includes a brief passage about a nonbinary child using Psionic Abilities. If I sell a copy of Paranormal Power to a Russian Citizen, I've broken Russian Law, and WotC would have legal authority to revoke my license. Even if WotC itself opposes that law, all it takes is one person at WotC with a modicum of power to say "I don't like this Steampunkette person and her work." and blammo. License revoked, no further content from me, and I have no legal recourse to oppose the decision. Heck, Florida and other states are looking to pass laws where "Exposing Children" to LGBTQIA+ content or existence will be illegal. Which means I'd need to slap an 18+ warning on Paranormal Power to sell it in the US under OGL 1.2a to avoid getting my license revoked. How messed up is that? [B]4. Methods into Creative Commons[/B] It's a nice gesture. But as every copyright and trademark lawyer has said over the past several weeks (and some have been screaming for years) you cannot copyright 1d20+Modifiers. It's a method or game rule rather than any form of specific protected intellectual property. By announcing they're putting the base rules of the game (but not anything they can apply IP law toward) into Creative Commons they've reached out with an olive branch made of balsa wood. They're saying "We won't sue you into oblivion over these rules" which is great and all, but it also acknowledges that the only reason those rules were in the OGL before was an attempt to bully people into using it with legalese and the implication they'd sue us into oblivion. Even knowing they could never "Win" such a case they could drag it out over however long it took to bankrupt a 3rd party publisher. So it's -kind- of a nothingburger and kind of a "This is already the status quo, we're just gonna make it official and unload one of the guns we've been pointing at your head in a show of good faith." [B]5. Summation[/B] The OGL was meant to last forever. It was meant to be irrevocable and permanent. It was never meant to be "De-Authorized" at any point. The terms WotC is trying to use to get rid of it -now- did not exist as specific legal concepts when it was written, and the architects of the OGL have explained that, repeatedly. There is no situation where getting rid of the OGL 1.0a is a good thing or a positive step. Particularly since it shows WotC is entirely willing to blow up any deal it has previously made to increase the control and power they now possess for their shareholders. WotC can no longer be trusted by third party publishers. There is no real "Path Forward" after this. The best they can do is enshrine 1.0a and pretend this fiasco never happened, but the ORC is still going to be written. And most publishers aware of this event will be signing on to it, or Creative Commons, or some other license that offers real stability long-term. Even if they took out all the poison pills, it still can't be trusted. Wizards have shown they'll change terms whenever the like. No contract will ever be held in good faith. [/QUOTE]
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