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."

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.

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...

www.enworld.org

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.

 

[Staffan]

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?

The intent at the time was that authorization was a one-way street, and "unauthorized" licenses were draft versions.

 

[Thanlis]

The lesson here is that licenses shouldn’t be static. If there isn’t a neutral owner with both the funding and the desire to update them to reflect new case law and precedent, there’s some degree of risk. This holds true whether or not a court would rule that WotC can deauthorize the OGL 1.0a; the next time around the problem could be less uncertain.

 

[rcade]

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.

There's another use case to consider: Relicensing a work that has multiple works in its Section 15, not just the SRD. A publisher should have the right to continue to benefit from their work being reused in new products. Hasbro shouldn't be able to stop that.

 

[rcade]

WotC kept updating the SRD because they were stuck with the OGL, not because they had any fondness for it.

They were only stuck with the OGL on work they had previously published, though.

WOTC was not required to keep publishing new versions of the SRD.

 

[macd21]

They were only stuck with the OGL on work they had previously published, though.

WOTC was not required to keep publishing new versions of the SRD.

For simply practical reasons they were. If they’d abandoned it after 4E (had their plans for the GSL worked) then they could have left the SRD as it was, but when they decided to use the OGL for 5e they needed to release (and maintain) a new version of the SRD.

 

[Matt Thomason]

There's another use case to consider: Relicensing a work that has multiple works in its Section 15, not just the SRD. A publisher should have the right to continue to benefit from their work being reused in new products. Hasbro shouldn't be able to stop that.

This is where it gets really complicated with questions of how much of their work can be proven derivative of the SRD, and while reusing their spell might be just fine, the fact it uses the same pattern of data fields in the same order as the SRD may potentially be copyrightable by WotC.

If I create a entire game based on the SRD and release my own SRD of that completely in my own words, is that in violation of WotC copyrights if not covered by the OGL? Even that is not 100% clear, if my game is "similar enough" to the design of D&D - even though the individual rules themselves are not protected, there is an arguable possibility (personally, I believe a small one, but not to be totally ruled out) that a Judge will rule I've copied something like "the complex and unique design pattern of D&D" in some way.

 

[Matt Thomason]

For simply practical reasons they were. If they’d abandoned it after 4E (had their plans for the GSL worked) then they could have left the SRD as it was, but when they decided to use the OGL for 5e they needed to release (and maintain) a new version of the SRD.

There was nothing stopping them using the proposed OGL 1.1 text with its restrictions and limitations for a new license they used only for 5e onwards (as long as they did it at the first 5e SRD release and never released an OGL version of it). Although it would be better to call OurNewLicense 1.0 to create a distinct seperation and avoid people thinking they could use earlier OGL versions for that SRD. The choice to use the OGL for 5e was a decision they made, but other than the practicalities of drawing up a different license there really wasn't any need to make that decision.

 

[rcade]

This is where it gets really complicated with questions of how much of their work can be proven derivative of the SRD, and while reusing their spell might be just fine, the fact it uses the same pattern of data fields in the same order as the SRD may potentially be copyrightable by WotC.

It would be a terrible injustice if games created using the SRD that both Hasbro/WOTC and the publisher considered legal at the time ever stopped being legal because Hasbro became insecure about the size of its revenue stream.

Copyright in games is extremely complicated when there isn't a safe harbor. The massive thread here initiated by a lawyer is proof of that.

 

[Jer]

There was nothing stopping them using the proposed OGL 1.1 text with its restrictions and limitations for a new license they used only for 5e onwards (as long as they did it at the first 5e SRD release and never released an OGL version of it).

This is technically correct but practically false. The reason why Wizards released a stripped down 5e SRD was because they needed to rebuild goodwill with the ttrpg community as a whole - players and companies - because 5e was released by a skeleton crew on the backs of a marketing disaster of epic proportions where Wizards had tried to bigfoot everyone out of producing OGL content through the use of 4e and their GSL restrictions with an arrogance that had previously only been matched by T$R in the time before they went bankrupt. They NEEDED other companies to produce content for their game because they weren't going to be able to do it themselves and had no plans at the time to try to do it for themselves.

And once again, a decade later, they're recapitulating almost the same mistakes they made that led to them deciding they needed to OGL 5e in the first place to get goodwill back. Just like the original OGL was done to garner goodwill with the D&D community after T$R's arrogance towards the players and other companies alienated them. Executives who don't understand the market keep screwing up in the same way every decade or so and if they'd just spend enough time to understand what the ttrpg market actually is and what D&D's place in it actually is maybe, just maybe, they'd figure it out and not do stuff like this.

 

[raniE]

This is technically correct but practically false. The reason why Wizards released a stripped down 5e SRD was because they needed to rebuild goodwill with the ttrpg community as a whole - players and companies - because 5e was released by a skeleton crew on the backs of a marketing disaster of epic proportions where Wizards had tried to bigfoot everyone out of producing OGL content through the use of 4e and their GSL restrictions with an arrogance that had previously only been matched by T$R in the time before they went bankrupt. They NEEDED other companies to produce content for their game because they weren't going to be able to do it themselves and had no plans at the time to try to do it for themselves.

And once again, a decade later, they're recapitulating almost the same mistakes they made that led to them deciding they needed to OGL 5e in the first place to get goodwill back. Just like the original OGL was done to garner goodwill with the D&D community after T$R's arrogance towards the players and other companies alienated them. Executives who don't understand the market keep screwing up in the same way every decade or so and if they'd just spend enough time to understand what the ttrpg market actually is and what D&D's place in it actually is maybe, just maybe, they'd figure it out and not do stuff like this.

There should never be an executive that doesn't understand the business. They don't provide value. Studies have been done on this, CEO's account for at most like a 2% variance in company value. Bringing in some exec from a completely different industry to run your company isn't going to get you more money because they're such a great CEO, it's just going to cost you a bunch of money paying a useless fleshlump an exorbitant salary and bonuses based on the wrong things that provide incentives for the CEO to destroy the company's long term interests.