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.

OGL - 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

 

[Maxperson]

Are you sure? Creative Commons demands that its license be used in a very specific way, and I'm sure they could sue Wizards if they tried to pull such shenanigans because they'd technically be misusing CC's copyrighted license, and breaking their own contract to CC by misapplying the terms.

What damages does CC suffer?

 

[Maxperson]

And to make a distinction: @pemerton and @Maxperson are making two different claims from what I understand.

Maxperson states that WotC could declare they are withdrawing the SRD 5.1 from CC, much in the same way they wanted to declare OGL v1.0a deauthorised. This is impossible to the point of ridiculousness. The OGL was a small license that only concerned a tiny industry. WotC controls OGL v1.0a, and they had an extremely dubious legal theory about what authorised meant in Section 9. Even with all those things, it was extremely likely their claim couldn't win in court.

WotC has none of these with CC. CC is maintained by a nonprofit that has a vested interest for CC to be applied as intended. Far too many industries rely on CC and things that are entered into it staying there for good. The Creative Commons license is authorised to use with very strict provisions, and Creative Commons would enforce their terms.

Pemerton's point (which he also makes in another thread), from what I understand, is related to the fact that even CC might not justify a forever valid offer to use copyrighted content. It's about a theoretical discussion on whether you can bind yourself in the way perpetually giving away your content to CC would require. But even then, it's a nuanced view with notable caveats: Most importantly, he had noted earlier the provision in CC that gives you the right to stop distributing your CC content, but that others could still use that content. From what I understand, there is still some lack of clarity on how this works when it comes to upstream rights, but this is an extremely technical discussion whose bounds are quite clear.

But even that nuanced discussion shouldn't push us laymen to think CC is completely unreliable, from what I understand. It's more a probing of the limits of CC. Which is valuable, but it's not the same thing as "3PPs are still under threat of C&Ds from WotC!"

No we're making the same point. @pemerton just has more legal clarity on how it might be done than I do. Basically, I can yell "Club smash!" and he can tell you exactly what sort of weapon is best to use and where to strike to be most effective.

 

[Ondath]

What damages does CC suffer?

CC offers its licenses only to be used in very specific ways: If you release your content on CC-BY-SA, you can't say "I changed my mind guys, you don't have to make the stuff you make available under CC-BY-SA as well!" because CC gave you the right to use that license only if you followed its terms. Since you stopped following its terms, you're using something that belongs to CC in a way that contradicts their wishes. Surely that's grounds for damages of some kind?

 

[Maxperson]

They aren’t going up against anyone. This is a hypothetical you’ve created. It’s not a thing. Relax.

I am relaxed. I was responding to people who are saying that they would have to go up against CC.

 

[Maxperson]

CC offers its licenses only to be used in very specific ways: If you release your content on CC-BY-SA, you can't say "I changed my mind guys, you don't have to make the stuff you make available under CC-BY-SA as well!" because CC gave you the right to use that license only if you followed its terms. Since you stopped following its terms, you're using something that belongs to CC in a way that contradicts their wishes. Surely that's grounds for damages of some kind?

What kind of damages? What loss would CC suffer that would warrant a suit against WotC? Did they lose money? Did they lose goods? Did they lose market share?

 

[overgeeked]

CC is permanent and irrevocable.

Considerations for licensors and licensees - Creative Commons

wiki.creativecommons.org

Remember the license may not be revoked.​

Once you apply a CC license to your material, anyone who receives it may rely on that license for as long as the material is protected by copyright and similar rights, even if you later stop distributing it.

Frequently Asked Questions - Creative Commons

creativecommons.org

What if I change my mind about using a CC license?​

CC licenses are not revocable. Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms. While you cannot revoke the license, CC licenses do provide a mechanism for licensors to ask that others using their material remove the attribution information. You should think carefully before choosing a Creative Commons license.

Frequently Asked Questions - Creative Commons

creativecommons.org

What happens if the author decides to revoke the CC license to material I am using?​

The CC licenses are irrevocable. This means that once you receive material under a CC license, you will always have the right to use it under those license terms, even if the licensor changes his or her mind and stops distributing under the CC license terms. Of course, you may choose to respect the licensor’s wishes and stop using the work.

 

[Ondath]

What? What loss would CC suffer that would warrant a suit against WotC? Did they lose money? Did they lose goods? Did they lose market share?

Isn't unauthorised use of someone's copyright grounds for damages? Creative Commons holds the copyright to their license. Using the license in a way that's counter to the way CC designated (i.e., trying to go after someone who should've had the right to use your content) sounds like unauthorised use of copyrighted content to me.

 

[Maxperson]

CC is permanent and irrevocable.

Considerations for licensors and licensees - Creative Commons

wiki.creativecommons.org

​

Frequently Asked Questions - Creative Commons

creativecommons.org

Frequently Asked Questions - Creative Commons

creativecommons.org

That's their claim. See this post, though. There may be ways to challenge it that have a shot, however small, of succeeding.

OGL - 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...

www.enworld.org

 

[pemerton]

I see the point you're making. But I feel like the assumptions behind this point (namely, the legal theory that nothing can bind a legal person to not stop an offer) goes completely counter to any kind of open license we could ever create.

Correct!

Although not quite. Estoppels are not irrelevant. Interlocking networks of contracts are not irrelevant. Had WotC taken up and used a lot of other parties' OGC, then it would be in a very very different situation. I think it's not a coincidence that WotC only did that twice and then stopped.

This is why, as I've said, I regard the real driver of this kerfuffle as being the commercial situation: one dominant player, who owns nearly all the IP, and other players wanting to build businesses that operate in the big player's shadow and piggy-back on the big player's IP.

Without knowing very much at all about the software world, I assume there is much more interactivity in use and sharing, and not this same shape to the commercial situation.

And to my understanding, lawyers working in the field think that if the license does say irrevocable, then you stopping that offer does not seem to affect any new licensees downstream. Consider Kit Walsh's piece published on EFF's website at the start of this debacle:

As a threshold question, can Wizards of the Coast legally revoke their license? Other open licenses like Creative Commons licenses and the GPL are clear that the rights they grant are irrevocable. At the very least, this means that once you rely on the license to make something, you can keep making it and distributing it no matter what the copyright owner says (as long as you comply with the terms of the license).

Notice that the quote you've made does not talk about the ability for new people to get rights.

It says - in my view pretty uncontroversially - that once you rely on the licence you have irrevocable rights. It doesn't talk about what happens if the licensor tries to walk back the licence, such that "relying on the licence" becomes a more nuanced matter.

I am aware that the advocates of CC and similar licences believe that their "automatic offer" device works. In the PSA thread I posted links to, and brief commentary on, about half-a-dozen academic papers that discuss the matter. The ones that went into it in the most detail were the most doubtful about whether or not it works; and none considered what the effect would be of an upstream change of mind by the licensor. I've read one case, in which the licensor argued that a downstream party had accepted the "automatic offer" and hence was bound by the licence terms, and the court held otherwise. But while interesting, I don't think the case would be relevant to understanding the consequences of an upstream change of mind.

I am hoping to have time soon to do a fuller literature review. And as I've said, I'm very happy to be pointed to stuff that explains how the "automatic offer" works.

EDIT: @Ondath - I've fixed my tag trouble to try and get the quotes of you correct!

 

[Cadence]

It feels like if the CC side lost it would keep getting appealed, with help from places with exceedingly deep pockets.

Anyone know how many of the SCOTUS judges have Hasbro stock vs. stock in companies depending on CC?

 

[pemerton]

But doesn't that section also say "even if you stop distributing, people can use your content as long as they follow the attribution guidelines"? I remember us talking about this very same point yesterday!

Yes it does. Because they think their "automatic offer" mechanism works. I'm still trying to work out how it works, and as per my post just upthread am yet to find an account of it. The only detailed discussions I've seen express doubts! (Which is intellectually comforting to me, because it makes me feel more comfortable with my own doubts; but doesn't seem to me to provide much comfort to those who think CC is more robust than OGL.)

 

[Maxperson]

Isn't unauthorised use of someone's copyright grounds for damages?

Sure. Because there are real monetary damages involved.

Creative Commons holds the copyright to their license.

WotC wouldn't be copying and using their license, so copyright wouldn't apply.

Using the license in a way that's counter to the way CC designated (i.e., trying to go after someone who should've had the right to use your content) sounds like unauthorised use of copyrighted content to me.

No. It could potentially be a contract breach if they have a contract, but I don't know if they do. But unless WotC is actually using a copy(or something substantially similar) of their license, it's not a copyright issue. Plus, there might be genuine legal grounds to challenge CC, but unless WotC sues CC it wouldn't be CC fighting it. Unless of course CC decides to put money into the fight on behalf of whoever was being sued, but that's iffy. Especially since WotC doesn't actually have to sue anyone. They can just make the claim and send out C&D letters. That would cause enough uncertainty to cause what is happening now.

 

[Ondath]

@pemerton the quotes got borked so I won't quote the post, but thanks for clarifying your view. I see that the case for automatic offers still working for new licensees once the original licensor withdraws their offer is an open question.

However, I'd say the spirit of what Creative Commons is trying to do is quite clear. Sure, that's no basis for law, but in practical concerns I think it would guide people's expectations - as well as what they'd be willing to defend in court and push for new legislation if your theory ends up being upheld. I can't imagine large actors like Wikimedia Foundation being too happy with the idea of the CC-licensed content they're using being suddenly unavailable for new users, or Google accepting the risk that a future successor of Linus Torvalds can withdraw the offer for the Linux kernel and make new versions of Android impossible to make. There's just too much at stake.

 

[pemerton]

It feels like of the CC side lost it would keep getting appealed

Litigation often - not always, but often - turns on the facts.

The facts in a dispute with WotC would be very different from those involving software, I think (see my reply to @Ondath not far upthread).

So this is not clear to me.

 

[Haplo781]

What would your reply to them be?

"You're about to get sued by the entire publishing industry."

 

[pemerton]

@pemerton the quotes got borked so I won't quote the post, but thanks for clarifying your view. I see that the case for automatic offers still working for new licensees once the original licensor withdraws their offer is an open question.

However, I'd say the spirit of what Creative Commons is trying to do is quite clear. Sure, that's no basis for law, but in practical concerns I think it would guide people's expectations - as well as what they'd be willing to defend in court and push for new legislation if your theory ends up being upheld. I can't imagine large actors like Wikimedia Foundation being too happy with the idea that the Cc-licensed content they're using being suddenly unavailable for new users, or Google accepting the risk that a future successor of Linux Torvalds can withdraw the offer for the Linux kernel and make new versions of Android impossible to make. There's just too much at stake.

Sure. This is where the full range of legal considerations - interconnected contracts constraining who can withdraw which offers; estoppels; etc - all become relevant.

They're relevant to the OGL too!

Maybe I need to make my view clearer: I'm not hear to shoot down the CC. Rather, I think people are unreasonably declaring the OGL "dead".

 

[Ondath]

WotC wouldn't be copying and using their license, so copyright wouldn't apply.

Wizards did copy and use their license by releasing SRD 5.1-CC. I can't see any difference between putting the CC disclaimer and putting an OGL disclaimer, and the OGL was WotC's copyright. Just as I couldn't write
(WRITTEN FOR PARODY PURPOSES)

OPEN GAMING LICENSE V1.0A

By accepting this license, you admit that Dyan Rancy is a poopoopeepee who shouldn't have released our IP

in my serious OGL disclaimer (since that would be breaching WotC's copyrighted license text!), I can't see how WotC could release a work under CC-BY then try to enforce a rule that CC doesn't allow and not expect CC to sue them.

 

[Maxperson]

Wizards did copy and use their license by releasing SRD 5.1-CC. I can't see any difference between putting the CC disclaimer and putting an OGL disclaimer, and the OGL was WotC's copyright. Just as I couldn't write

They did it in a valid way, though. Challenging it later wouldn't be breaking that valid use.

In my serious OGL disclaimer (since that would be breaching WotC's copyrighted license text!), I can't see how WotC could release a work under CC-BY then try to enforce a rule that CC doesn't allow and not expect CC to sue them.

It wouldn't necessarily be a breach. Contracts are challenged all the time and often the contract of portions or it are declared invalid.

 

[pemerton]

I can't see how WotC could release a work under CC-BY then try to enforce a rule that CC doesn't allow and not expect CC to sue them.

CC has some clear statements about this: Policies - Creative Commons.

 

[Ondath]

CC has some clear statements about this: Policies - Creative Commons.

So CC does say you will be breaching their trademark (which is different from copyright, of course) if you try to add extra terms to your license (which might apply to the case of WotC hypothetically saying "New users can't use the SRD 5.1 once we stop making the offer"). Whether CC would win if they did this is the crux of our discussion with pemerton, but the earlier point is clear: CC would take legal action against WotC for misusing their trademark if they did what @Maxperson suggests.