We All Won – The OGL Three Years Later

[mamba]

The OP wants us to look at how good the market is going, and claims it means we "won" the OGL thing. What about this success? What about that product doing well?

none of this is whataboutism…

Can you explain how the success of Pathfinder 2e was a result of the OGL fiasco?

not sure how that relates to whataboutism. As to explaining it, I would not say ‘explain the success’ but ‘contribute to it’… PF2 sold out a year’s worth of products in a month, as did other RPGs. They all got a boost from people looking for alternatives to D&D, some of them switched, some did not

Is there a reason to connect any of the games OP listed to the OGL thing, or are we just celebrating bread and circuses?

as mentioned, their development was accelerated and they definitely found a more receptive and probably larger audience than they otherwise would have

 

[mamba]

I don't agree. If anything, an updated OGL would serve this role better.

a new OGL would not be any stronger than the old one, and we saw what happened to that when WotC decided to not play nice, so no, an updated OGL would be useless and no one would trust it, using the CC instead is a huge improvement

 

[Morrus]

You seriously would trust another OGL license published by WOTC?

For me it’s not a question of trust. A contract (a license is a contract) means I don’t need to worry about that. I’ve read the OGL a thousand times. I’ve spoken to the architect of it dozens of times. I’ve spoken to the lawyers who wrote it (and am represented by them!) I am confident that I am safe using it, and that it cannot be rescinded. And defending that is something I would be willing to do. So for me, trust doesn’t come into it. We continue to use it, and the two other licenses, simply because we want to make access to our content as convenient as possible.

I’d read a new OGL and act based on what it said based on the legal advice I received. Trust just wouldn’t be a factor.

 

[Staffan]

First off, WotC was trying to push the idea that they could deauthorize the existing OGL, I think 1.0a. Now, legally, the consensus from people who weighed in (including actual lawyers) was that WotC probably couldn't do that, because the OGL was explicitly designed to prevent that, but that they could cause significant legal problems for publishers that might dissuade them from using it. WotC was particularly keen on this seemingly legally nonsensical idea that no new products could use the OGL 1.0a, and existing products couldn't be updated.

The one actual lawyer I recall weighing in, Devin "Legal Eagle" Stone, said he believed Wizards likely had the right to pull the OGL. The main reason was that it used the word "perpetual" rather than "irrevocable", and "perpetual" generally means "until further notice" rather than "forever" in legalese.

I don't know if he was aware that at the time the OGL was originally promoted, representatives of Wizards of the Coast (particularly Ryan Dancey) were saying "Look, it's safe, it's intended to last forever", nor do I know if that would actually carry any weight in a court of law.

Give some examples of actively hostile to other games.

TSR's lawsuit against GDW (not sure if they also sued Gygax personally) over Dangerous Journeys/Mythus. Dangerous Journeys was an RPG written by Gary Gygax, and it took immense care to avoid anything even close to D&D vocabulary, to the point of having "Physical Muscular Power" rather than "Strength" and "Dweomercraefters" rather than wizards/magic-users. It was also primarily skill-based rather than class/level-based. TSR still sued them, arguing things like "the First Aid K/S Area is derivative of the Cure Light Wounds spell in AD&D". The game clearly wasn't derivative of AD&D, and they went after Gygax for purely vindictive reasons. The case never got tried in court because TSR could out-lawyer GDW so it ended with a settlement that saw TSR acquire the game and all the stock.

 

[Morrus]

The one actual lawyer I recall weighing in, Devin "Legal Eagle" Stone, said he believed Wizards likely had the right to pull the OGL. The main reason was that it used the word "perpetual" rather than "irrevocable", and "perpetual" generally means "until further notice" rather than "forever" in legalese.

Our lawyers disagree.

 

[mamba]

For me it’s not a question of trust. A contract (a license is a contract) means I don’t need to worry about that. I’ve read the OGL a thousand times. I’ve spoken to the architect of it dozens of times. I’ve spoken to the lawyers who wrote it (and am represented by them!) I am confident that I am safe using it, and that it cannot be rescinded.

so what would you have done, continue to use it and wait for WotC to sue you and then find out in court once that happens? That could be pretty costly even when you end up winning in the end

 

[mamba]

The one actual lawyer I recall weighing in, Devin "Legal Eagle" Stone, said he believed Wizards likely had the right to pull the OGL. The main reason was that it used the word "perpetual" rather than "irrevocable", and "perpetual" generally means "until further notice" rather than "forever" in legalese.

yeah, and back when the OGL was written it meant both of those things because something cannot be perpetual if it can be revoked. In an abundance of caution in the years following the OGL it became practice to include both words however.
You have that and the stated intent of WotC and the people working on the license.

That a court has a brainfart is not unheard of, but outside of that or just outlasting the other side due to expenses WotC stood no chance. Of course their deep pockets are a problem for many small publishers…

 

[Morrus]

so what would you have done, continue to use it and wait for WotC to sue you and then find out in court once that happens? That could be pretty costly even when you end up winning in the end

We were prepared for that.

 

[bsss]

So again, IANAL, but I think a lot of those games could switch from the 3.5 SRD to the 5.1 SRD if their material was different enough. I think 13th Age almost certainly is but they also have a lot of other material that was also under the OGL that they referenced and, because of the viral nature of the OGL, you're sort of stuck with it. I think you'd have to have like seventy products switch to the CC docs to unravel them and that's too much.

But I bet, almost any new product one made these days, could change very little and comform to just using the CC BY 5.1 SRD (or any of the other 5e SRDs).

For 13A 2E it's only ("only") 32 products, assuming their copyright notices are complete, a lot of which are owned by Fire Opal Media or Pelgrane Press, so that'd probably grease the skids if it got to that point. It is a lot to unravel, for sure, but if there is value in replacing the OGL with a stronger non-OGL license, it's not insurmountable (if WotC initiates it), which would benefit the community (but not WotC). For something as potentially muddy as 32 copyrighted products, that's probably less effort than re-"engineering" a product that derives only from 5.1, but that all rests on an unlikely hypothetical (that WotC cares to start the dominos), so maybe more 3.x-SRD-based publishers should be interested in rebasing their product on 5.1. I dunno. I think the OGL v1.0a is fine as it is, though it's not up to the same standard as if it was written first in 2026.

And, I say stronger non-OGL license, because...

You seriously would trust another OGL license published by WOTC?

One benefit of a newer, stronger OGL authored by WotC over switching to CC is that, if it passed the review test Morrus suggests, it would presumably fall under Section 9 of the OGL v1.0a...

Updating the License: Wizards or its designated Agents may publish updated versions of this License. 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.

...and all companies benefiting from 1.0a could choose to publish works in the newer version without having to do all of that unraveling up above. But again, what incentive is there for WotC to publish a version of the OGL that provides the same rights as v1.0a, but in more concrete, obvious, defensible, understandable terms? Seemingly none. That's why they punted to the CC BY.

This is the kind of stuff that makes me still feel that we lost something valuable with the OGL fiasco, even if companies still enjoy potentially-incidental successes in the market.

 

[Reynard]

So again, IANAL, but I think a lot of those games could switch from the 3.5 SRD to the 5.1 SRD if their material was different enough. I think 13th Age almost certainly is but they also have a lot of other material that was also under the OGL that they referenced and, because of the viral nature of the OGL, you're sort of stuck with it. I think you'd have to have like seventy products switch to the CC docs to unravel them and that's too much.

But I bet, almost any new product one made these days, could change very little and comform to just using the CC BY 5.1 SRD (or any of the other 5e SRDs).

Many folks -- Morris included, but I can't tag him because he has blocked me -- have made the argument that you can use the 5.1 and/or 5.2 SRD in CC to recreate pretty much anything in the 3.5 SRD via CC. I am not a lawyer and I don't pretend to understand copyright law, but it seems reasonable if you can use the 3.5 SRD to create the retroclones (OSRIC and others) it should also apply to 5E and 3.x.

There is, of course, the persistent argument that you can't copyright game mechancs, etc blah. As I understand it, that has yet to be tested in court.

What I will say is this: there is a game in the space between 3E and 5E, with some call backs to TSR era D&D, that is (for all intents and purposes) the BEST version of D&D and we (the community) should be building and promoting that game.

We can let WotC do whatever they want and continue to pump out retreads and safe products.