OGL So WHY Didn't The OGL Contain The Word 'Irrevocable'?

Whether or not the Open Game License v1.0a is revocable is one of the main things being argued about during this whole OGL-gate crisis, with lawyers firmly stating opinions on both sides of the issue. We all know that Ryan Dancey, the OGL's 'architect' (along with IP lawyer Brian Lewis, who was WotC's in-house counsel at the time) firmly believes that the license is irrevocable--in his words, "If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license."

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But why didn't it just say so? On the face of it, including that simple word might have prevented this whole crisis. Dancey commented on Facebook:

because in Y2K that term was not used in state of the art copyleft licenses like the LGPL or the Apache or BSD licenses. There's no "magic word" in US contract law that lets you walk away from your obligations.

The OGL was based on existing software open source licenses; it even predates Creative Commons by a couple of years.

Just on this site there are lawyers on both sides of the 'revocabiity' debate, and on social media and elsewhere there are many more. In this thread no less than SIX lawyers weigh in over an 86-page debate, and they don't all agree. WotC clearly currently believes it to be revocable (but didn't believe so before), and Paizo believes the opposite.

The license does indeed contain the term ‘perpetual’, but many lawyers have argued that the precise legal meaning of that term is not the same as the common English meaning, and that it does not render a license irrevocable. On the other hand, legal minds have pointed out that the license contains no verbiage regarding 'de-authorization', or any mechanism for doing so. That said, if all lawyers agreed, we wouldn't need courts.


It's clear that Dancey's, Lewis', and indeed WotC's intent at the time was to make it impossible to revoke the OGL, and that that was the proposition offered to third party publishers at the time. D&D historian Ben Riggs (author of Slaying the Dragon: A Secret History of Dungeons & Dragons) comments:

This is a radical change of the original intention of the OGL. The point of the OGL was to get companies to stop making their own games and start making products for D&D. WoTC execs spent a ton of time convincing companies like White Wolf to make OGL products. To act like the existence of Paizo or Kobold is a perversion of the OGL may be gaslighting, it may be ignorance, but it is certainly nonsense.

Everybody believed the OGL was irrevocable at the time. Dancey and Lewis did. WotC did. The entire industry did. Everybody. Whether or not the license can be de-authorized, it is certain that a breach of trust has taken place.

Dancey has posted a blog where he talks more about his current attempts to save the Open Gaming License.

Unfortunately, the leadership team at Wizards of the Coast has decided to unlawfully and in bad faith attempt to deauthorize v1.0a of the OGL. In mid-December 2022 they met with various parties who use the OGL and attempted to strong-arm them into signing onto a new OGL that repudiates the philosophy of Open Gaming that is embodied in v1.0a. The draft license that they attempted to force onto the community included onerous provisions that shifted control of the content created out of the commons shared by all participants equally and into a legal space controlled solely by Wizards of the Coast. Their new license was not, in any sense, an “open gaming license”.

The leverage that the company believed it had was their perception that they had the right to deauthorize and revoke the v1.0a version of the license. They do not. Attempting to do so will result in difficult litigation which ultimately poses a risk to Wizards of the Coast’s fundamental conception of what it can copyright and protect with US intellectual property rights laws.
 
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Russ Morrissey

Russ Morrissey

Erdric Dragin

Adventurer
Oh I think they knew that at some point in the future WotC could be that evil. They did everything they could to exclude the possibility that the OGL could be deauthorised. They didn’t just release the OGL with “perpetual” and clause 9 in it, they publicly stated that it was intended to be a forever license. And those statements will hurt WotC if this ever goes to court.

The problem was that they weren’t psychic, and couldn’t predict how legal language would evolve over time. They thought “perpetual” had them covered, but the term now has since been interpreted to have a specific legal meaning, one that the writers of the OGL didn’t intend.
Problem is we live in a society where your money is what decides a case. Even if 3pp win the case, they'll be so broke from all the fees, they end up shutting down anyway. Unless every single major company teams their lawyers up to fight this. Heck, Paizo already stated they could fight this and everyone knows WotC will lose, but Paizo doesn't want to be bankrupt from the fighting so they rather invest in a comparably much cheaper way; create their own license.
 

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Vincent55

Explorer
I Don't think this will destroy WotC or D&D but will knock them off their throne making way for other companies to take the seat. As to how long well it might be a while and will result in them never obtaining such hights again. I really feel this will bring in more creativity and variety to the game industry due to their greed and over reach.
 

rcade

Hero
Because by then WotC hated the OGL.
If WOTC hated the OGL in 2007, it wouldn't have kept releasing updated SRDs through 2016 and continued to offer the current one for download. Hasbro didn't start asking "who will rid me of this turbulent license?" until last month.

In 2008, Hasbro had a problem with the d20 System Trademark License, not the OGL. It abandoned the d20 STL and replaced it with the Game System License.
 

rcade

Hero
Ryan Dancey, who might be said to be the driver of the OGL, left WotC in 2002. Five years after that, I don't suspect there was anyone tasked with actually managing the thing.
Somebody at WOTC had to greenlight the decision to produce and release new SRDs after 2007.

There are probably people inside WOTC who understand and champion the OGL even now. I hope there are enough of them to make a difference now that it has become evident that a lot of D&D customers strongly support open gaming.
 


rcade

Hero
Releasing errata updates is a low-level job. Changing the legal details of agreements with dozens of other publishers is not.
WOTC released a new SRD for version 5 in 2016 and updated it six months later to version 5.1. That's a lot more than an errata update. It would be interesting to find out what exec(s) made that happen.
 


Umbran

Mod Squad
Staff member
WOTC released a new SRD for version 5 in 2016 and updated it six months later to version 5.1. That's a lot more than an errata update.

Revising a license is opening up a can of worms in the legal department in a way that using the same old license you already have doesn't.
 


rcade

Hero
Revising a license is opening up a can of worms in the legal department in a way that using the same old license you already have doesn't.
That makes sense. Nothing grinds work to a halt like needing permission from people several rungs up the corporate ladder. Or the lawyers.
 



macd21

Adventurer
If WOTC hated the OGL in 2007, it wouldn't have kept releasing updated SRDs through 2016 and continued to offer the current one for download. Hasbro didn't start asking "who will rid me of this turbulent license?" until last month.

In 2008, Hasbro had a problem with the d20 System Trademark License, not the OGL. It abandoned the d20 STL and replaced it with the Game System License.
No, WotC hated the OGL, they just didn’t think they could just declare it to be deauthorised to get rid of it (both for legal and marketing reasons, I imagine). And initially they didn’t think they’d have to - they could release 4ed under a new (more restrictive) license, everyone would switch to playing the latest edition of DnD, and that would be that. Sure, 3PPs could keep releasing stuff for 3ed, but given only a handful of people would still be playing, it wouldn’t matter, right?

Obviously it didn’t quite work that way. And when they moved to 5e, they needed to figure out what to do with the license. The GSL wasn’t just a flop, it was a PR mess (not as bad as OGL 1.1, but still bad). Releasing 5e under the OGL brought (some of ) the 3PPs back into the fold and helped sell fans on the new edition.

WotC kept updating the SRD because they were stuck with the OGL, not because they had any fondness for it. They would have gotten rid of it in 2008 if they thought they could get away with it.
 

TerraDave

5ever, or until 2024
No, WotC hated the OGL, they just didn’t think they could just declare it to be deauthorised to get rid of it (both for legal and marketing reasons, I imagine). And initially they didn’t think they’d have to - they could release 4ed under a new (more restrictive) license, everyone would switch to playing the latest edition of DnD, and that would be that. Sure, 3PPs could keep releasing stuff for 3ed, but given only a handful of people would still be playing, it wouldn’t matter, right?

Obviously it didn’t quite work that way. And when they moved to 5e, they needed to figure out what to do with the license. The GSL wasn’t just a flop, it was a PR mess (not as bad as OGL 1.1, but still bad). Releasing 5e under the OGL brought (some of ) the 3PPs back into the fold and helped sell fans on the new edition.

WotC kept updating the SRD because they were stuck with the OGL, not because they had any fondness for it. They would have gotten rid of it in 2008 if they thought they could get away with it.
I think this is mostly right.

With 5e, WotC probably just wanted things to turnaround for D&D, with limited attention or concern for the details. New leadership for D&D embraced the OGL as part of that, and D&D turnaround and then some.

This success eventually brought more serious attention from WotC leadership, and here we are.
 

Releasing 5e under the OGL brought (some of ) the 3PPs back into the fold and helped sell fans on the new edition.
I think it did a lot more than that - it helped tap into a whole nerd culture of people who love to back stuff on Kickstarter, and particularly have backed tons of 5E-related projects. If I look my my 30-40-something friends, ones with a lot of disposable income, even some of them who barely play D&D have backed a number of 5E-related Kickstarters, and in some cases, own D&D solely because they saw a Kickstarter project so cool they wanted to play it, and it was a 5E Kickstarter.

It's also gave WotC more cache/friends in the videogame industry, weirdly enough, as a lot of a number of videogame designers have made 5E-based Kickstarter projects.

I very much doubt anyone in leadership at WotC actually considered any of that though. The sheer arrogance of OGL 1.1 represented a staggering disconnect from reality, like really WotC, you want to take cash out of the pocket of the guy who came up with Warcraft and designed WoW, and indeed is now back with Blizzard (because he managed to dodge all the nastiness - he wasn't part of that "crowd" - Chris Metzen), that's like, totally a good idea right? Seems like an awesome dude to piss off.

And then drop it to 0%? Come on. This is just unbridled arrogance and stupidity.
 

Two members of the original OGL team are leadership of Pazio today. Jim Butler is the CEO and Lisa Stevens is an owner of Paizo and both worked on Ryan Dancey's team, so they have the receipts.

Now there is a reason to not like the OGL from WotC's perspective...

Someone in yoir team convinces you that OGL is great. And then go to the competitor and nearly drive you out of the market based on that. (A bit exaggerated).

Actually, it rather shows what power WotC has. Even if a small company tries to play foul and sell a PHB based on SRD 5.0 and the playtest, it won't have a chance to really challenge the offical stuff.

So I hope they find a good way out of the PR desaster...
 

Staffan

Legend
WOTC released a new SRD for version 5 in 2016 and updated it six months later to version 5.1. That's a lot more than an errata update. It would be interesting to find out what exec(s) made that happen.
I have a feeling that Mike Mearls probably was a champion of releasing 5e under the OGL. I recall his name being mentioned in press releases a couple of times at the time, and he made a name for himself making d20 products for other companies, chief among them Iron Heroes. I know Jeremy Crawford did some d20 stuff as well, but I've never gotten the feeling from him that it's a Big Deal for him.
 

tomBitonti

Adventurer
Can we distinguish between revoke as in “revoke current licenses” and revoke as ”cease to offer”? The first applies to products already in existence; the second applies to new products. Failing to make this distinction adds an ambiguity that (IMO) wrecks a discussion. The discussion becomes unmoored from particulars.

From a purely textual analysis, the presence of “authorized” implies that versions of the license can be in a state “unauthorized”. The question becomes, does that mean “draft” vs “made officially available”, or is it a dynamic state that can be changed — in particular, from authorized to unauthorized?

Also from a purely textual analysis, the section on using any authorized license is for “any Open Game Content originally distributed under any version of this License”. Then, “authorized” is only meaningful in regards to products that already exist. Then we are off track with the focus on “authorized”.

I‘m not seeing anything in the text that says how the license can be revoked for current licenses. But, I’m also not seeing anything that would prevent the offer of the license from being withdrawn — unless that is prevented by the details of sub licenses, which I’m still working my way through.

TomB
 


"Yes. We know what that words means in English, but it means something else in Legalese."
the fact that I have had that argument about D&D as aposed to the law makes me think this is the funniest outcome. "Suprise doesn't mean an unexpected or astonishing event, fact, or thing, it's a state in D&D and you can't have it unless the rules call it out" was like the battle cry for over a year when I was shareing examples of play from my game that had 2 PC assassins (and multi NPC ones)
 

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