WotC Backs Down: Original OGL To Be Left Untouched; Whole 5E Rules Released as Creative Commons

Hundreds of game publishers sigh in relief as, after extensive pressure exerted by the entire open gaming community, WotC has agreed to leave the original Open Gaming License untouched and put the whole of the 5E rules into Creative Commons.

So, what's happened?

• The Open Gaming Licence v1.0a which most of the D&D third party industry relies on, will be left untouched for now.
• The whole of the D&D 5E SRD (ie the rules of the game less the fluff text) has been released under a Creative Commons license.

OGL 1.0a & Creative Commons

Over the past few weeks you, the community, have made your voices heard. And we’ve listened. OGL 1.0a will remain untouched AND the entire SRD 5.1...

www.dndbeyond.com

WotC has a history of 'disappearing' inconvenient FAQs and stuff, such as those where they themselves state that the OGL is irrevocable, so I'll copy this here for posterity.

When you give us playtest feedback, we take it seriously.

Already more than 15,000 of you have filled out the survey. Here's what you said:

• 88% do not want to publish TTRPG content under OGL 1.2.
• 90% would have to change some aspect of their business to accommodate OGL 1.2.
• 89% are dissatisfied with deauthorizing OGL 1.0a.
• 86% are dissatisfied with the draft VTT policy.
• 62% are satisfied with including Systems Reference Document (SRD) content in Creative Commons, and the majority of those who were dissatisfied asked for more SRD content in Creative Commons.

These live survey results are clear. You want OGL 1.0a. You want irrevocability. You like Creative Commons.
The feedback is in such high volume and its direction is so plain that we're acting now.

1. We are leaving OGL 1.0a in place, as is. Untouched.
2. We are also making the entire SRD 5.1 available under a Creative Commons license.
3. You choose which you prefer to use.

This Creative Commons license makes the content freely available for any use. We don't control that license and cannot alter or revoke it. It's open and irrevocable in a way that doesn't require you to take our word for it. And its openness means there's no need for a VTT policy. Placing the SRD under a Creative Commons license is a one-way door. There's no going back.

Our goal here is to deliver on what you wanted.

So, what about the goals that drove us when we started this process?

We wanted to protect the D&D play experience into the future. We still want to do that with your help. We're grateful that this community is passionate and active because we'll need your help protecting the game's inclusive and welcoming nature.

We wanted to limit the OGL to TTRPGs. With this new approach, we are setting that aside and counting on your choices to define the future of play.
Here's a PDF of SRD 5.1 with the Creative Commons license. By simply publishing it, we place it under an irrevocable Creative Commons license. We'll get it hosted in a more convenient place next week. It was important that we take this step now, so there's no question.

• SRD 5.1-CC

We'll be closing the OGL 1.2 survey now.

We'll keep talking with you about how we can better support our players and creators. Thanks as always for continuing to share your thoughts.

Kyle Brink
Executive Producer, Dungeons & Dragons

What does this mean?

The original OGL sounds safe for now, but WotC has not admitted that they cannot revoke it. That's less of an issue now the 5E System Reference Document is now released to Creative Commons (although those using the 3E SRD or any third party SRDs still have issues as WotC still hasn't revoked the incorrect claim that they can revoke access to those at-will).

At this point, if WotC wants anybody to use whatever their new OGL v1.x turns out to be, there needs to be one heck of a carrot. What that might be remains to be seen.

Pathfinder publlsher Paizo has also commented on the latest developments.

We welcome today’s news from Wizards of the Coast regarding their intention not to de-authorize OGL 1.0a. We still believe there is a powerful need for an irrevocable, perpetual independent system-neutral open license that will serve the tabletop community via nonprofit stewardship. Work on the ORC license will continue, with an expected first draft to release for comment to participating publishers in February.

Over 1,500 Publishers Support Paizo's Upcoming Open RPG Creator's License

Paizo has revealed some of the 1,500+ tabletop RPG publishers who have expressed an interest in their new Open RPG Creator's License (ORC), describing the group as the 'ORC Alliance'. The license itself is still being worked on, so these 1,500 publishers have not actually seen it or signed...

www.enworld.org

 

[Matt Thomason]

I don't think I agree.

If the dead publisher didn't confer the rights you want - ie if they retained some power of revocation - then I don't think WotC can give you the power to change that just by purporting to promulgate a new licence.

I think the 1.0b you are looking for is a bit illusory.

Question - what if 1.0b replaces the "any authorized version" text with "any version that has ever been authorized" - that at least would prevent the vague "deauthorize" threat, yes?

It's not perfect, but it seems that would close that particular loophole (while still potentially leaving one of revoking the offer of further licenses on the SRD - but that is seemingly closed by reusing the SRD via CC and everything else via the OGL, unless another upstream publisher also revokes their offer.)

Either way, the issue of someone potentially pulling down the whole house of cards of dependent works under the OGL is still a problem.

 

[Iosue]

How much of the 3.5 SRD is actually in OSRIC? Given the vast difference between 3.5 and 1e rules, my impression was that invoking the name of the OGL and 3.5 SRD was merely to provide legal cover, since merely re-expressing the 1e rules by themselves was untested legal waters. Class structure was different, monster stat blocks were different, combat was completely different. AFAICT, the only thing taken from the SRD are the names of ability scores, spells, and monsters.

The foundation of every retroclone since then has always been the rules of its original edition, not 3.5.

Given that the truly foundational elements that allowed creators to use the 3.5 rules to create AD&D and OD&D clones are also in the 5.1 SRD, I’m skeptical that it would really be so onerous to move existing clones to the CC license. Certainly not rebuilding from the ground up using new rules. And probably not even line-by-line checking if the text. Isolated lines of text are not enough to prove infringement, and that’s assuming a) the WotC ever tried to “de-authorize” OGL 1.0a again, and b) that they would then care enough about shutting down CC-using OSR products to the point of searching for stray bits of the 3.5 SRD in them in order to bring suit.

 

[Ashtagon]

I don't think I agree.

If the dead publisher didn't confer the rights you want - ie if they retained some power of revocation - then I don't think WotC can give you the power to change that just by purporting to promulgate a new licence.

I think the 1.0b you are looking for is a bit illusory.

Under the recent unpleasantness, it had been widely understood across the industry that the 1.0 and 1.0a licences were, in modern legal terms, "irrevocable". Recent commentary by Darcy indicates that the only reason those licences didn't have that particular wording is because at the time the original documents were written, it was not standard to write the word "irrevocable" to indicate that specific meaning.

In other words, while this 1.0b would be a change in wording, it would not be a change in intent.

 

[pemerton]

Question - what if 1.0b replaces the "any authorized version" text with "any version that has ever been authorized" - that at least would prevent the vague "deauthorize" threat, yes?

Perhaps - the argument here would be that WotC have, by promulgating the new variant, empowered you to remove their alleged power of deauthorisation.

It's not perfect, but it seems that would close that particular loophole (while still potentially leaving one of revoking the offer of further licenses on the SRD - but that is seemingly closed by reusing the SRD via CC and everything else via the OGL, unless another upstream publisher also revokes their offer.)

My view remains that, given their alleged power of deauthorisation turns entirely on an implausibly strained construction of the legal text, any comfort taken from the change you are canvassing would be false comfort - because strained interpretations are a dime a dozen when you have WotC's legal team ready to suggest them.

To put it another way: suppose there were a small number of "loopholes", of known sizes; then closing off one reduces the overall vulnerability.

But that's not what we're talking about. There is no loophole here that needs to be shut: there is an implausible argument being used to throw commercial weight around. As long as the commercial weight remains, new implausible arguments can always be constructed. So why waste time and energy worrying about the particular form the last such event took? To me it almost seems like a type of fetishisation of the legal text, rather than a realistic appraisal of the actual dynamics at work.

 

[pemerton]

Under the recent unpleasantness, it had been widely understood across the industry that the 1.0 and 1.0a licences were, in modern legal terms, "irrevocable". Recent commentary by Darcy indicates that the only reason those licences didn't have that particular wording is because at the time the original documents were written, it was not standard to write the word "irrevocable" to indicate that specific meaning.

In other words, while this 1.0b would be a change in wording, it would not be a change in intent.

Yes, I know. That's why I think it's a waste of time that would do nothing but provide false comfort.

 

[Matt Thomason]

But that's not what we're talking about. There is no loophole here that needs to be shut: there is an implausible argument being used to throw commercial weight around. As long as the commercial weight remains, new implausible arguments can always be constructed. So why waste time and energy worrying about the particular form the last such event took? To me it almost seems like a type of fetishisation of the legal text, rather than a realistic appraisal of the actual dynamics at work.

Understood - and that's a big part of my thinking re: ORC. Sure, WotC may still come after me for a copyright violation, but at least they can't come after me for some made-up license violation if I don't actually have a license with them. At least copyright violations I have some idea of how to insulate myself against (by, well, simply not violating copyright), while random invented license violation #1236 I don't

 

[pemerton]

Understood - and that's a big part of my thinking re: ORC. Sure, WotC may still come after me for a copyright violation, but at least they can't come after me for some made-up license violation if I don't actually have a license with them. At least copyright violations I have some idea of how to insulate myself against (by, well, simply not violating copyright), while random invented license violation #1236 I don't

Maybe.

Under the OGL the result of licence violation is termination, which in turn exposes you to a suit for copyright infringement. (This outcome is actually discussed in some of the CC articles I've been reading for the PSA-lawyers thread). So I'm not sure that you can be worse off by relying on (or purporting to rely on) the OGL.

Of course, if you want to become part of an ORC-based ecology that's a different matter. But you've probably noticed throughout this month-long discussion I've had the view that publishers are deserting the OGL a bit too hastily, and I stand by that.

(Naturally, it suits Paizo to leave the WotC-based OGC-verse and create its own ecology, for exactly the same reasons Dancey wanted to create a WotC-centric ecology. But this is entirely about Paizo's commercial interests, not its legal rights and risks.)

 

[dave2008]

Another thought.

Suppose there's a dead publisher book whose OGL 1.0 content I really want to use.

I simply can't use it under CC, no matter what. There's just no option.

At present I can take that OGL content, use it in my book, and publish that under OGL 1.0a. I could even make a book that contains all of their old OGL 1.0 content and publish it in my own OGL 1.0a book. However, the legal status of 1.0a hasn't been fully resolved vis a vis whether it can be revoked and whether it can be de-authorised. It's a ticking time bomb for me, because in principle WotC could launch another legal challenge. As many have noted, we can't see a reason for them to do so, but this time last year we couldn't see a reason for them to try it last month either.

With a 1.0b that fixes the revocation and authorisation issues, I can use that dead publisher's OGL 1.0 content, republish it in my book with a 1.0b licence, and be confident it will stand up to legal scrutiny. (In as much as anything can stand up to legal scrutiny of course.)

Yep - I understand it fully now (I think).

 

[Matt Thomason]

Maybe.

Under the OGL the result of licence violation is termination, which in turn exposes you to a suit for copyright infringement. (This outcome is actually discussed in some of the CC articles I've been reading for the PSA-lawyers thread). So I'm not sure that you can be worse off by relying on (or purporting to rely on) the OGL.

Of course, if you want to become part of an ORC-based ecology that's a different matter. But you've probably noticed throughout this month-long discussion I've had the view that publishers are deserting the OGL a bit too hastily, and I stand by that.

(Naturally, it suits Paizo to leave the WotC-based OGC-verse and create its own ecology, for exactly the same reasons Dancey wanted to create a WotC-centric ecology. But this is entirely about Paizo's commercial interests, not its legal rights and risks.)

My view right now is that having my income dependent on one single keystone holding is not a good thing. If I start putting some of the weight onto a 2nd keystone, I'm at least insulated against one crumbling away. The specifics of my own position mean I've got a fairly static-ish income from OGL material for as long as that material can be legally used. So it makes sense for me to focus on building up just as much ORC material until I have at least as much as I do OGL material, with my income coming 50/50 from each (or preferably diversifying into other things too, putting all my eggs in two baskets isnt much better than one).

That feels like a common-sense business approach to me - getting rid of the single dependency that could wipe me out.

 

[Mistwell]

Could not 1.0b have some chain of clauses like "all material licensed under 1.0 and 1.0a should also be considered to be licensed under 1.0b" and "the license to release material under 1.0b cannot be revoked"? Or something along those lines? IANAL, of course.

Sure but unless you're using 1.0b it can't apply to your product. You have to use the license to get any protections from that license and WOTC cannot create a license which automatically supersedes the terms of the license you chose to use. If they could, imagine what they could have done to those licenses long ago. If they could have done that ,then they could have just as easily written a license which did the opposite of that.

No matter what, to make 1.0a irrevocable, everyone would have to declare their usage of their products as being under whatever new license said that. No new license can amend or alter in any way the old license. That was the point. That's how it was built to be.

Bottom line is, plenty of other folks seem to see value in a 1.0b, so I think one could be drafted that would be beneficial to the OGL ecosystem. Just takes some imagination and willingness. What's the harm in making the attempt? Better to have that and also have other open licenses, no?

I guess? If they want to re-issue under 1.0b or (more likely) draft new stuff under a 1.0b that's fine. I'd think Creative Commons gives them more protection and usage - like granting them the right to say "Compatible with Dungeons and Dragons" and use some stuff in the CC SRD that wasn't in the 1.0a SRD like beholders.

The FAQ - while absolutely something I would have used in court to defend OGL 1.0's intended irrevocability - didn't cover the specific legal shenanigan of de-authorizing a previous version of the license. That's the loophole that needs closed. At the very least, doing so would make this harder for them to repeat, as they'd have to come up with a novel legal theory.

Creative Commons closes that loophole, better than anything WOTC lawyers could draft for their own home-made license (1.0a). I think people are getting stuck on "We must fix 1.0" and are not groking the meaning of a Creative Commons type license - which is better.

 

[pemerton]

That feels like a common-sense business approach to me - getting rid of the single dependency that could wipe me out.

My recollection is that you are in an OGL-based but non-WotC-centric ecology. If that's right, I don't see that you have a WotC dependency (as opposed to a OGL dependency).

In any event, it's not my place to offer unsolicited and gratuitous business advice!

 

[Mistwell]

(Half way through the thread, but if I don't do something with the quotes I have accumulated I'll have forgotten why I quoted them by the time I get to the end...).

That maybe true if all you care about is the 5e SRD. For anyone who cares about the vast library of non-5e OGC accumulated over the last 23 years, CC does literally nothing (or at least, pretty damn close to it).

Look these are all true facts:

1) You cannot alter or amend in any way 1.0 or 1.0a OGL licenses. You'd have to issue a 1.0b.

2) anything published under 1.0 or 1.0a would have to be republished using 1.0b. 1.0b, because of fact #1, it cannot "automatically" cover stuff issued under 1.0 and 1.0a.

If you want to change the terms of the license used to published all that stuff over 23 years, the ONLY way to do it would be to re-publish it under a different license.

And if you're doing that...why wouldn't you use the Creative Commons, which gives you more protection and more content to use, than a new 1.0b license?

Yes, WOTC will need to put 3.0, 3.5, and d20 Modern content into Creative Commons as well. I think they will, and just have not gotten there as they were simply trying to stop the hemorrhaging initially.

But if people want them to make a 1.0b that covers all that stuff, it's no easier or harder than them sticking that same stuff in the Creative Commons. Which, again, is a much more professional license with more clarity and protections and is not run by WOTC.

 

[Matt Thomason]

My recollection is that you are in an OGL-based but non-WotC-centric ecology. If that's right, I don't see that you have a WotC dependency (as opposed to a OGL dependency).

In any event, it's not my place to offer unsolicited and gratuitous business advice!

Your recollection is correct For my "day job" PF1/2 is reponsible for most of our traffic, 5e adds some but isn't as big as either of those. Huge parts of all that is 3PP material (assuming you don't treat Paizo as a 3PP for forking D&D 3.5). There's still that dependency up to WotC at the top of the OGL chain for that material, though. We're looking into alternatives right now to put alongside that, but Paizo's move to an ORC-licensed PF2 is likely going to provide what we need there if nothing else does, so it's unlikely we actually have to do much at all other than follow PF2's direction.

Outside of that, I still freelance occasionally as a writer, or doing book layout - as that's contracted work, I'm quite happy to do whatever's asked, be it ORC, OGL, CC, or a new license I haven't heard of - I only care about getting paid in those cases

 

[Cadence]

Look these are all true facts:

1) You cannot alter or amend in any way 1.0 or 1.0a OGL licenses. You'd have to issue a 1.0b.

2) anything published under 1.0 or 1.0a would have to be republished using 1.0b. 1.0b, because of fact #1, it cannot "automatically" cover stuff issued under 1.0 and 1.0a.

If you want to change the terms of the license used to published all that stuff over 23 years, the ONLY way to do it would be to re-publish it under a different license.

And if you're doing that...why wouldn't you use the Creative Commons, which gives you more protection and more content to use, than a new 1.0b license?

Yes, WOTC will need to put 3.0, 3.5, and d20 Modern content into Creative Commons as well. I think they will, and just have not gotten there as they were simply trying to stop the hemorrhaging initially.

But if people want them to make a 1.0b that covers all that stuff, it's no easier or harder than them sticking that same stuff in the Creative Commons. Which, again, is a much more professional license with more clarity and protections and is not run by WOTC.

Is the difference that I can publish someone else's 1.0a thing as "my copy of 1.0a thing" under 1.0b as long as 1.0a is still authorized?

 

[Mistwell]

I don't get why both you and @Mistwell stated that there is nothing they can do about it, and then immediately list the thing they can do about it. They could release a 1.0b which is identical to 1.0a except that it includes the word "irrevocable" in a couple of prominent places and gives a sensible definition for "authorised", and then release their SRDs under it. Section 9 would pretty-much take care of the rest. EDIT: Nothing is completely proof against bad actors, but that applies to the CC too. Nonetheless, everything you close off or clarify makes misbehaviour less likely.

Right they could do that, and now follow the path. So now there is a new license which is irrevocable, with an SRD of stuff. Which is EXACTLY what you get with the Creative Commons license.

And...and this is the super important part...nobody is covered by it until they publish using that new license. Which is EXACTLY what you get with the Creative Commons license.

It doesn't, in itself, retroactively fix anything. It can't. If you published under 1.0 or 1.0a, your stuff cannot be automatically and retroactively covered by a 1.0b. By the terms of the license you used, that's not allowed to happen. You would have to re-publish under the new license. Which is the same boat you'd be in for Creative Commons.

Which is why it's not accomplishing as much as you think it is. If you have to republish anyway, you might as well use the more protective and more certain license which does that (Creative Commons). Assuming, of course, they include the 3.0 and 3.5 and d20 Modern SRD in it too (which I think they will, let's see).

And you say nothing is proof against bad actors but I assure you a CC license is far more proof against bad actors than a new license drafted by the company that's the bad actor. CC is outside of WOTC and not under their control at all. You're calling for the wolves to make a new henhouse because it's the type of henhouse we're all used to.

 

[Dausuul]

All that CC means is that instead of drafting their own licence terms, WotC picked some terms of the shelf. It doesn't change the ownership of anything that anyone cares about, and it just swaps one set of legal questions for a new set - which may be easier, but are not obviously so. There has been litigation over CC licences - which is to say, they are not proofs against disagreements between the parties.

That is true. But any attempt to create an OGL 1.0b would bring its own set of legal questions; it would not have been tested in court as the CC presumably has; it would still be under WotC's control; and it would not tie the SRD to a huge external group of stakeholders with an interest in defending the commons from litigation.

All in all (and granting that you are a legal expert and I'm not), I think the CC license is safer than any iteration of the OGL I could imagine. Unless you see specific weaknesses in it pertaining to RPGs?

 

[Guythegard]

Ha! like they needed a survey to know no one wanted 1.0 to be revoked

 

[Matt Thomason]

That is true. But any attempt to create an OGL 1.0b would bring its own set of legal questions; it would not have been tested in court as the CC presumably has; it would still be under WotC's control; and it would not tie the SRD to a huge external group of stakeholders with an interest in defending the commons from litigation.

All in all (and granting that you are a legal expert and I'm not), I think the CC license is safer than any iteration of the OGL I could imagine. Unless you see specific weaknesses in it pertaining to RPGs?

Safer, perhaps.

Actually useable by 3PPs? A big nope, the work involved in splitting out the bit of your book you want sharable into a seperate document under CC so you're not also giving away your reserved Product Identity just isn't worth it.

This was discussed on the ORC Discord, whether we needed to make a new license at all and why not simply use CC, and there was very little support for it.

The majority just want to put in a little box somewhere in their publication "this is the parts we're declaring Open, and this is the parts we're declaring Product Identity" - there's no existing CC license that supports that type of declaration.

 

[pemerton]

That is true. But any attempt to create an OGL 1.0b would bring its own set of legal questions; it would not have been tested in court as the CC presumably has; it would still be under WotC's control; and it would not tie the SRD to a huge external group of stakeholders with an interest in defending the commons from litigation.

All in all, I think the CC license is safer than any iteration of the OGL I could imagine.

Well, as I've posted I don't see any real point in creating an OGL v 1.0b. I think v 1.0a is fine enough.

I am not as sanguine as many about the benefits of the CC licence - I've been doing a quick review of the literature and have read one recent case (Great Minds v. FedEx Office & Print Servs., Inc., 886 F.3d 91 | Casetext Search + Citator), and I haven't yet seen a discussion of what would happen if a licensor really wanted to roll back their licence. (In that case, the licensor was not wanting to roll back their licence and rather was insisting that the defendant had accepted their offer and hence was bound by the licence terms; the court found for the defendant.)

But each publisher needs to make their own decision, based on their own legal advice.

 

[Dausuul]

Safer, perhaps.

Actually useable by 3PPs? A big nope, the work involved in splitting out the bit of your book you want sharable into a seperate document under CC so you're not also giving away your reserved Product Identity just isn't worth it.

This was discussed on the ORC Discord, whether we needed to make a new license at all and why not simply use CC, and there was very little support for it.

The majority just want to put in a little box somewhere in their publication "this is the parts we're declaring Open, and this is the parts we're declaring Product Identity" - there's no existing CC license that supports that type of declaration.

When the ORC is completed and released, I will happily join an effort to persuade Wizards to put the SRDs under it. Who knows, they might even do it! (I don't think it's likely, but if you'd asked me this time yesterday, I'd have said there wasn't a chance in hell of the current situation happening, either.)

In the meantime, the CC is a powerful disincentive for Wizards to pull this stunt ever again; which means the OGL 1.0a is also safer than it was. I certainly won't complain if they also put out an OGL 1.0b, but it's not something I'm going to go to the mat for.