We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!

[S'mon]

I'll point out a few things about contracts and lawyers
1. Not all lawyers are good at their job
2. Lawyers make contracts based on their client's specifications, and stupid clients can make lawyers make stupid contracts

Too true. I remember talking with a TSR lawyer back in the mid '90s. He was tasked with stopping Internet sites from posting fan-created D&D content. Whether or not he truly believed that TSR 'owned' terms like AC and hit points, that's what he was told to say, and he did as instructed. House (employee) lawyers in particular will act on the instructions of their employer, no matter how stupid & irrational.

 

[sigfried]

Contracts, even ones written in plain language, need to be very specific. Vague writing like "...if We somehow stretch Our decision of what is or is not objectional under these clauses too far, We will receive community pushback and bad PR, and We're more than open to being convinced that We made a wrong decision." I mean, what the hell does that even mean? Not your guess mind you. Exactly what is the definition of "somehow stretch?" What is "too far?" What constitutes "pushback" or "bad PR?" What does "open to being convinced" mean?

It is an explanation of the line, "You waive any right to sue over Our decision on these issues."

These were contracts that were sent to third parties as part of an outreach to forwarn or negotiate. So they may well include explanatory text regarding the motivation of a given clause. It's basically saying, "Hey don't worry about this clause, we don't mean to screw you, we'd get in trouble if we did, so trust us that this isn't here so we can abuse you and you have no recourse."

 

[Maxperson]

It is an explanation of the line, "You waive any right to sue over Our decision on these issues."

It's not. It's too vague to be an explanation. If that's really what they wrote, they lose if they try to enforce it.

 

[Ulorian - Agent of Chaos]

Is this possible: the text that was leaked is a preliminary version of the final product. It's a test balloon floated as part of a negotiation i.e. here's my initial proposal... now what's your counter-proposal? A bit of back and forth, then we have a final product. Maybe this leak occurred as a form of leverage: the hope being the negative PR towards WotC would tilt the table away from WotC's position.

 

[S'mon]

Is this possible: the text that was leaked is a preliminary version of the final product. It's a test balloon floated as part of a negotiation i.e. here's my initial proposal... now what's your counter-proposal? A bit of back and forth, then we have a final product. Maybe this leak occurred as a form of leverage: the hope being the negative PR towards WotC would tilt the table away from WotC's position.

I doubt it was deliberately leaked by WoTC.
I do think it very likely that the leaked text will never see the light of day as the final OGL 1.1. If I were WoTC I'd be in very intense internal discussions right now, considering all options including junking OGL 1.1 and starting over, likely with a mea culpa. Or they could go scorched-earth nuclear. We'll see.

 

[S'mon]

I doubt it was deliberately leaked by WoTC.
I do think it very likely that the leaked text will never see the light of day as the final OGL 1.1. If I were WoTC I'd be in very intense internal discussions right now, considering all options including junking OGL 1.1 and starting over, likely with a mea culpa*. Or they could go scorched-earth nuclear. We'll see.

*Most likely I think is a blander statement "Following feedback from (3PPs), we have decided to revise the new licence to better meet the needs of all parties".

 

[jgbrowning]

There is no "WotC." There are people who work there. This all feels very much like two or three top execs who don't get the world of open source having a knee jerk reaction and the power to not listen to arguments to the contrary.

I'm getting that feeling as well although I have no confirmation. I mean...

"OCTOBER 4, 2022 PAWTUCKET, R.I.–(BUSINESS WIRE)–Hasbro, Inc. (NASDAQ: HAS), today announced Dan Rawson has joined Wizards of the Coast in a newly created role as Senior Vice President of Dungeons & Dragons. Mr. Rawson, formerly COO of Microsoft Dynamics 365,"

They just put an ex-microsoft exec into a newly created role of Senior VP of D&D in early October.

joe b.

 

[Ulorian - Agent of Chaos]

I doubt it was deliberately leaked by WoTC.
I do think it very likely that the leaked text will never see the light of day as the final OGL 1.1. If I were WoTC I'd be in very intense internal discussions right now, considering all options including junking OGL 1.1 and starting over, likely with a mea culpa. Or they could go scorched-earth nuclear. We'll see.

I meant leaked by someone to whom WotC distributed the draft version of the OGL.

 

[Bagpuss]

After reading that

Physical books and PDFs are the ONLY content covered in the OGL 1.1. “It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes."

Of course the immediate question I'm sure everyone was concerned about was what Dungeons and Dragons Pantomines they had missed under the OGL 1.0

So far I've found this one...

Dungeons and Dragons the Panto! - Podvine

126 likes, 0 comments. This is the live recording that we made at Dragonmeet 2022 with Emily and Shamini of the RPGeeks podcast! It was a ton of fun to m..

podvine.com

 

[pemerton]

But the definition of Use relates to Derivative Material of Open Game Content, not Open Game Content itself.

I don't agree.

Use is relevantly defined as "use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content". I think the "otherwise" is referring to "otherwise than editing, formatting, modifying or translating". I don't think that it reaches all the way up the definition to govern "use", "Distribute" and "copy". Because (for instance) copying OGC is not a mode of creating derivative material of the OGC, as best I'm aware.

If the OGL's leaning in part on the U.S. Copyright Office's definitions of "derivative works", then the intent might be to allow licensees to only sublicense any Derivative Material (derivative work) that the licensee contributed to the OGC, excluding the OGC material contributed by WotC, i.e. the material in the SRD itself.

I assume it's drawing on the statutory definition of derivative works where it uses that phrase: Chapter 1 - Circular 92 | U.S. Copyright Office

As far as the authority to sub-license is concerned, section 4 extends it to the Open Game Content, which is not confined to the OGC that the licensee contributes (section 5 calls that out distinctly). At least, that's how it reads to me.

The community has long held that OGL 1.0 and 1.0a licensees have the right to continue using the SRD (any version published under any prior version of the OGL) and - in the hypothetical I've been referencing - the ability to sublicense SRD content to which WotC holds the copyright. Maybe that's right, but has it ever been tested in court? WotC now seems like it's in the mood to do just that.

I believe there are cases on software open source licensing. I don't know what they say, nor what they tell us about the OGL v 1.0/1.0a.

The hypothetical that sparked this part of the thread contemplated that an OGL 1.0a licensee could sublicense OGC found in the SRD in perpetuity, provided that the licensee had published SRD-based OGC prior to the "non-authorization" (to use your term) of the OGL 1.0a . That's the scenario I've been asking about, anyway.

My view is that WotC would somehow have to revoke the licensor's rights to sub-license to others. Given that those rights are contractually granted, I'm not really seeing how that would work. There's been some more discussion of this, through a contract law lens, in the "PSA" thread.

The best post there, in my view, is this one: Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

That poster says the following:

as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

I'm not able to take the analysis any further than this - @bmcdaniel is a better US contract lawyer than I am.

 

[pemerton]

Good search-fu there! I see myself from 2014 just below Marshall. I don't think my opinion has changed since 2014.

I noticed I got a friendly mention in your 2014 post! I remember our conversation about OSRIC gnolls.

 

[Alzrius]

IME OSR D&D supports 5e D&D.

I've seen that also. It's why "O5R" is a thing.

 

[Ruin Explorer]

The Hadozee is a good example, though. Even if they didn't spot it, as soon as someone did(and someone always will), then leapt into action and changed it. They changed orcs, Vistani and other things as well. I don't see why they wouldn't leap into action against a 3rd party once someone told them about the racism.

I mean, I don't agree that they "leapt into action" "as soon as someone [spotted it]". It'd been discussed at some length for some time and had got to the point where people were generally thinking "I guess WotC doesn't care" (and indeed a lot of people were suggesting they shouldn't care!) before WotC even acknowledged the issue. Once they did, they did a decent job. It helps that it was anti-Black racism, which is on the sort of racism that US corporations are better at at least recognising (even if they often perpetuate it).

But it's a good example because it's a case of "the squeaky wheel gets the grease". That wheel was squeaking very loudly, and it was a WotC product.

With 3PPs, it's going to be a lot more complicated, because far less people are going to see any given product, and WotC's thing says "blatant racism", which is theoretically a pretty high bar. I'm not even sure the Hadozee would have reached that, though personally I think the minstrelsy stuff did take it there.

And my experience with corporations is that they're somewhat loathe to publicly call others "racists" (for obvious reasons, I hope). So unless a book is staggeringly obviously racism (i.e. "blatant racism"), they're probably not going to do anything about it. If it's just trading in stereotypes or unfortunate implications/language (which is kind of where the Vistani and Orcs were), I'm skeptical that they'll do anything. Maybe that's fine, but I think it means the whole commitment is a bit questionable. Further, it's quite likely more non-US forms of racism will go ignored because it doesn't immediately make sense, and US corporations and frankly American society in general, has an amazing history of not recognising anti-Native American racism. So I'm pretty skeptical about how that's going to actually work out. And I'm not saying it's not hard - it is! But that just means it's less likely to work out!

On the flip side, corporations have an equally long history, especially US ones, of freaking out about anything that people are telling them is "sexual". They freak out way more about that, than anything but the most severe racism or the like. And LGBTQ+ people are the main target of this. A significant minority of US society suggests merely being LGBTQ+ is a "sexual" thing - that's obviously hardly worth discussing it's such a given. Further there are organised groups actively seeking out LGBTQ+ material to criticise on these grounds. So I believe any LGBTQ+ work is going to get a lot of complaints made directly to WotC about it on those grounds. Those complaints may well not appear on social media, which will make it harder for people to say "That's unwarranted", and I think it's highly likely WotC will burn a few LGBTQ+ creators before realizing they're essentially being played. If they even realize that. There's also a lower bar for calling something "sexual" than calling something "racist", at least for corporations. I think that's wrong, but it's how it seems to work.

So hopefully you'll forgive my rather strong skepticism that this commitment is anything but a commitment to protect their brand, and my belief that it's unlikely to be consistent, fair, or well-handled.

 

[Maxperson]

I mean, I don't agree that they "leapt into action" "as soon as someone [spotted it]". It'd been discussed at some length for some time and had got to the point where people were generally thinking "I guess WotC doesn't care" (and indeed a lot of people were suggesting they shouldn't care!) before WotC even acknowledged the issue. Once they did, they did a decent job. It helps that it was anti-Black racism, which is on the sort of racism that US corporations are better at at least recognising (even if they often perpetuate it).

I mean, their announcement came about 2 weeks after the release of the product. It takes some time for it to be spotted and brought up. Let's say a week. Then a week for a corporation to hear about it, meet about it, come to a decision and then announce it is lightning fast.

Release date: 8-16-22
Announcement: 9-2-22

I understand about U.S. corporations being hesitant historically to call out racism, but WotC doesn't seem to be shy about confronting it and they're getting much quicker.

 

[Ruin Explorer]

I mean, their announcement came about 2 weeks after the release of the product. It takes some time for it to be spotted and brought up. Let's say a week. Then a week for a corporation to hear about it, meet about it, come to a decision and then announce it is lightning fast.

Release date: 8-16-22
Announcement: 9-2-22

It was spotted either immediately on release, or perhaps even in printed copies that got out early. It didn't take "some time" for it to be spotted. So at a minimum we're talking the full two weeks.

But if you consider that lightning fast, cool I guess.

 

[Maxperson]

It was spotted either immediately on release, or perhaps even in printed copies that got out early. It didn't take "some time" for it to be spotted. So at a minimum we're talking the full two weeks.

But if you consider that lightning fast, cool I guess.

For a corporation? There are multiple levels that have to hear about it, meet about it(with very busy schedules), then come to a decision and arrange for it to be announced.

My wife is in corporate upper management. Once a decision to announce something has been made, the announcement has to be drafted, reviewed by multiple upper executives who with their corporate egos all have to contribute or change something(even if it's one word), then be finally approved by the top dog.

Even 3-4 weeks would have been quick.

 

[mhd]

They just put an ex-microsoft exec into a newly created role of Senior VP of D&D in early October.

Wasn't October when Ray Winninger left, who, when at Mayfair had to fight some legal battles with TSR?

 

[Ruin Explorer]

My wife is in corporate upper management. Once a decision to announce something has been made, the announcement has to be drafted, reviewed by multiple upper executives who with their corporate egos all have to contribute or change something(even if it's one word), then be finally approved by the top dog.

I work in a large corporate law firm, and whilst I totally agree on the sequence of events (indeed I described it in another thread), I will say, we manage to be a lot more responsive than that. Much more like "a week" or sometimes "2-3 days" than "3-4 weeks". But maybe being a lawfirm we're just good at this?

 

[GMforPowergamers]

Wasn't October when Ray Winninger left, who, when at Mayfair had to fight some legal battles with TSR?

boss's life experience can effect an entire corp culture, and if one changes the other most assured will.

 

[Maxperson]

I work in a large corporate law firm, and whilst I totally agree on the sequence of events (indeed I described it in another thread), I will say, we manage to be a lot more responsive than that. Much more like "a week" or sometimes "2-3 days" than "3-4 weeks". But maybe being a lawfirm we're just good at this?

Most likely. As a paralegal I have to say that working with the often very tight and absolute deadlines that law offices deal with daily breeds the ability to get things done more efficiently. You have to. You also don't generally have 3-8(or more) other lawyers all dealing with the document and making changes.

On the other hand, if the deadline is months off, I've never seen a lawyer get something done more than a few days early, and very often working late the evening before to get it done.