Ryan Dancey -- Hasbro Cannot Deauthorize OGL

I reached out to the architect of the original Open Gaming License, former VP of Wizard of the Coast, Ryan Dancey, and asked his opinion about the current plan by WotC to 'deauthorize' the current OGL in favour of a new one.

He responded as follows:

Yeah my public opinion is that Hasbro does not have the power to deauthorize a version of the OGL. If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license. I am on record numerous places in email and blogs and interviews saying that the license could never be revoked.

Ryan also maintains the Open Gaming Foundation.

As has been noted previously, even WotC in its own OGL FAQ did not believe at the time that the licence could be revoked.

7. Can't Wizards of the Coast change the License in a way that I wouldn't like?

Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

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[GMforPowergamers]

While I appreciate what Ryan and his team did.

Wizards at the time should have used the wording of Section 9 of the GPL. It was much clearer wording of what being attempted with this clause. Irrevocable doesn't appear in the GPL and it worked out just fine with that license.

I can not stress enough how 2000 and before D&D was in a completely different place then 2023 D&D.

 

[GMforPowergamers]

Perpetual does.

but that isn't the same thing

 

[jgbrowning]

Here's my thoughts on the matter, for what they're worth.

The original license was an agreement between WotC and the user. At the moment that the user published a product under that license, the license was authorized. And perpetually so. There is no revoking that authorization, particularly when (sect 9) it is mention that changes in the license allow the user to use previous version of the license if they so wish.

This means that any previously publish work under the OGL is fine providing that you don't agree to the new license, because the new license says that the user agrees to alter previously existing licenses how WotC wants them altered.

If you have published materials under the OGL and want to publish under the new OGL, simply create a new legal entity that does not have the authority to speak for any of your other legal entities, so that the change in the license that WotC wants to happen isn't able to happen.

The OGL is perpetual, and you can use any version you like, UNLESS you agree to what WotC wants to change by publishing and agreeing with the new version.

joe b.

 

[jgbrowning]

Yeah, but there's an assertion being made (if I understand things correctly) that there's a difference between being perpetual (i.e. having no built-in expiration date) and being revocable (i.e. the issuer can say the license is no longer valid). I have no idea if that's necessarily true, and I suspect that it'd take a court ruling to conclusively affirm or deny, but it seems to be the current line of thinking on WotC's part as of now.

The part where they are saying that the license is no longer valid is in another license, that you haven't agreed to use if you don't publish anything under it.

One does not alter existing contracts (which is what a license is) via another contract that not all parties have agreed to.
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(Edit: to be clear, those signing on with the OGL signed a contract, not a Credit Card agreement that allowed the issuer to change terms as they desired and which only allowed the user to agree or to stop using. That is not the OGL. Particullary when the OGL specifically said that any new versions did not change the old version.)

joe b.

 

[Alzrius]

The part where they are saying that the license is no longer valid is in another license, that you haven't agreed to use if you don't publish anything under it.

One does not alter existing contracts (which is what a license is) via another contract that not all parties have agreed to.

joe b.

I've seen that interpretation advocated (heck, I've advocated for it myself), but while I think that's the most straightforward, common sense version of things, there seems to be a lot of knowledgeable people (some of them lawyers) saying that might not be the case.

 

[SteveC]

I just want to say thanks to Morrus for tracking him down. As someone who was there at the time, this was completely the intention and it was discussed then with the publishers at the time wanting to know that the license couldn't be pulled out from under them. Most of the people discussing this at the time are still in the game, and would never have gone into business without that assurance.

 

[Bedrockgames]

I hope he's right. But does he have any authority other than his past employment with Wizards to make such a claim? Is he a lawyer? Does he know court precedents?

I think he can help establish the original intent

 

[God]

Brownie points (current and retroactive) for Ryan Dancey.

 

[TheSword]

There are a couple of questions that are floating my head.

Q - Can WOC issue a licence that is more favorable to them? (Reporting, royalties etc)
A - Yes of course

Q - Can they force third parties to accept it?
A - Maybe. Which is the same as yes if they have an army of lawyers and 95% of licensees don’t have the funds to challenge it in court. That said it only needs one gambling person with deep pockets to challenge it successfully in court.

Q - Are they likely to upset the 3pp to that extent.
A - It depends on whether they feel they have cover from a PR/Community point of view towards 3pp by offering free use up to a point.

My gut feeling is that WOC considers the IP theirs - particularly the stuff they have developed recently.

We know that D&D 5e is an order of magnitude bigger than it was then the OGL was released.

We know that they wish to monetize the brand further and free use of IP probably stings like a fishhook in the ass.

Ryan Dancey unfortunately no longer works for WOC and WOC can easily say circumstances have changed. They can say that 5e is a fundamentally different product, and that they are spending money developing and promoting something that didn’t exist when the OGL was created.

WOC/Hasbro almost certainly have lawyers who are advising them that there is either enough cover or possibility that they can win to make the change worth it.

I suspect they are gambling that the majority of 3pp will accept the new license - if grudgingly because it’s terms aren’t too onerous. Those that won’t because they are of a size that it is onerous are competition for D&D anyway and either aren’t producing content for 5e (Paizo) or aren’t big enough/are to dependent to find it worth fighting them (EN Publishing), Kobold Press etc etc.

Cleverly by getting this out of the way now they are ensuring that the fallout happens now, rather than during the launch of whatever the One D&D playtest turns into. I’m not surprised it’s leaked early.

 

[jgbrowning]

I've seen that interpretation advocated (heck, I've advocated for it myself), but while I think that's the most straightforward, common sense version of things, there seems to be a lot of knowledgeable people (some of them lawyers) saying that might not be the case.

All the arguments come down to "You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License." in sect 9.

Every publication released under the OGL is released under an authorized version of the license because every version WoTC released is an authorized one.

Creating a new version of the OGL that "un-authorizes" previous versions for that user requires the user's agreement, in that new license.

No new, unsigned, unagreed-upon license removes the prior section 4: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." Because it's not a contract until both sides agree to the terms, and the contract was already made with the terms set out at the time when a product is published under the OGL.

All of the versions of the OGLs are authorized until one agrees with WotC that they aren't anymore by making a new contract with them by publishing under the new OGL.

joe b.