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.

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.
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.


 

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Maxperson

Morkus from Orkus
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.
Challenging a contract or license isn't the same as misusing it.
 

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Ondath

Hero
Challenging a contract or license isn't the same as misusing it.
I don't know what else to tell you.

Screenshot_20230130_070615_Firefox.jpg
 

overgeeked

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

The post, and some later ones, misrepresent what’s clearly and repeatedly stated by Creative Commons. The FAQs and various other pages make it explicit. CC is permanent and irrevocable. I quoted them above. Once in CC that’s it. No take backs.
 

Maxperson

Morkus from Orkus
I don't know what else to tell you.

View attachment 274161
You're confused between using a trademark, which WotC isn't doing, and challenging a contract. Nothing you've shown there involves anything WotC would be doing if challenging CC's validity.

The above quote would come into play if I were to say make my own brand of oatmeal, but put the quaker oats guy on it. I would be misusing/infringing on their trademark.
 

Maxperson

Morkus from Orkus
The post, and some later ones, misrepresent what’s clearly and repeatedly stated by Creative Commons. The FAQs and various other pages make it explicit. CC is permanent and irrevocable. I quoted them above. Once in CC that’s it. No take backs.
Their claims, FAQs, and other pages are just claims, not statutes or case law. A claim is just a claim. It might be and probably is based in law, but then so are most legal challenges.
 

ThorinTeague

Creative/Father/Professor
I think my views of the legal situation have been shown to basically be correct. The only thing I got wrong was this: I did not anticipate how quickly parties to the OGL would give up on asserting and defending their legal rights.
Bud, it's not revocable. No matter how contorted your twist your tongue into linguistic acrobatics. We all have know what the deal was, for nearly a quarter of a century. LOL
 

ThorinTeague

Creative/Father/Professor
At some point, can the claims in a lawsuit be so ridiculous that they result in punitive damages from the judge? I can see WotC having some vague case about deauthorizing the 1.0a. Taking on the CC-BY seems a bit more out there. In a case about CC-BY, who has choice of the venue where it is heard?
There's a $25,000 fine if the lawsuit is deemed frivolous: Frivolous litigation - Wikipedia

I believe contempt of court is a possibility, not totally sure on that one though.
 


ThorinTeague

Creative/Father/Professor
They aren’t going up against anyone. This is a hypothetical you’ve created. It’s not a thing. Relax.
They most definitely were going up against someone, friendo. They've backed down, for now. Until I see the architects of this course of action kicked to the curb, I'll assume the motivation remains.
 


Maxperson

Morkus from Orkus
If people go around suing publishers for using CC material it weakens the point of CC, with producers losing confidence in the safety using the material.

Kinda like, you know... trying to revoke OGL 1.0a... :ROFLMAO: :p
And yet they wouldn't have been able sue WotC. Perhaps you shouldn't be speaking with such certainty without a background in law.
 



overgeeked

B/X Known World
Their claims, FAQs, and other pages are just claims, not statutes or case law. A claim is just a claim. It might be and probably is based in law, but then so are most legal challenges.
Here's the legal text of the CC-BY 4.0 license.

Here's a relevant quotes from the text:

License grant.
  1. Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:
    1. reproduce and Share the Licensed Material, in whole or in part; and
    2. produce, reproduce, and Share Adapted Material.
Here's a database of cases related to Creative Commons.

I get the trauma is fresh. This only stopped Friday. But we can collectively settle down and not chase phantoms.

There are cases that directly deal with CC. Look them up. There's a link.

CC has been around almost as long as the OGL. CC has been widely used and has been tested in court. The OGL was a niche license and, to the best of my limited knowledge, has never been tested in court. CC is a far sturdier license than the OGL. Especially considering the last month of shenanigans by WotC.
 

Ondath

Hero
You're confused between using a trademark, which WotC isn't doing, and challenging a contract. Nothing you've shown there involves anything WotC would be doing if challenging CC's validity.

The above quote would come into play if I were to say make my own brand of oatmeal, but put the quaker oats guy on it. I would be misusing/infringing on their trademark.
No, I'm not. Let me break it down to you step by step:

1. Wizards has already released SRD 5.1 using the CC-BY trademark. They are authorised to keep that CC notice only if they abide by the terms that CC set for CC-BY, which, according to their FAQ, includes the provision that you cannot revoke your content from CC, only stop distributing it, which does not stop others from keeping to use it.
1(a). Wizards may very well argue that they cannot be bound to keep making an offer, and thus should be able to revoke the SRD 5.1. This is a separate discussion, and I think there are a lot of people with very deep pockets who have a vested interest to make sure Wizards gets an unfavourable result if they ever pushed this argument.
2. If Wizards ever tried to revoke the SRD from CC, they would no longer be following CC's terms, and thus they would no longer be using the trademark in an authorised manner.
3. CC can now sue them for trademark infringement.

I mean, if you contest any of these points frankly there's no need to continue the conversation. I am giving a very common sense explanation of why CC's trademark would be infringed, and I really can't see a reasonable way for arguing otherwise.
 

Maxperson

Morkus from Orkus
Here's the legal text of the CC-BY 4.0 license.

Here's a relevant quotes from the text:


Here's a database of cases related to Creative Commons.

I get the trauma is fresh. This only stopped Friday. But we can collectively settle down and not chase phantoms.

There are cases that directly deal with CC. Look them up. There's a link.

CC has been around almost as long as the OGL. CC has been widely used and has been tested in court. The OGL was a niche license and, to the best of my limited knowledge, has never been tested in court. CC is a far sturdier license than the OGL. Especially considering the last month of shenanigans by WotC.
That quote is not a statute. It's a term of the license and as such, it can be challenged. WotC may not win, but it CAN be challenged. I'm also not suggesting that they will do it. I'm saying that people who are adamant that such a challenge can't be done are wrong.
 

Ondath

Hero
That quote is not a statute. It's a term of the license and as such, it can be challenged. WotC may not win, but it CAN be challenged. I'm also not suggesting that they will do it. I'm saying that people who are adamant that such a challenge can't be done are wrong.
There's making a nuanced and extremely specific case for why CC might not achieve what it claims (which is what pemerton is doing), and there's arguing that we're fools for thinking CC offers any protection at all.
 

Maxperson

Morkus from Orkus
1. Wizards has already released SRD 5.1 using the CC-BY trademark. They are authorised to keep that CC notice only if they abide by the terms that CC set for CC-BY, which, according to their FAQ, includes the provision that you cannot revoke your content from CC, only stop distributing it, which does not stop others from keeping to use it.
So an FAQ doesn't mean squat here. It's just a statement. They could have written in that you can only revoke content on CC if you have a Martian to back you up.
1(a). Wizards may very well argue that they cannot be bound to keep making an offer, and thus should be able to revoke the SRD 5.1. This is a separate discussion, and I think there are a lot of people with very deep pockets who have a vested interest to make sure Wizards gets an unfavourable result if they ever pushed this argument.
Possibly there are people who would put money in. And possibly there are people and companies who regret putting things into CC that would side with WotC. As @pemerton said in another post, I really don't want to try and be Nostradamus.

My only claim here is that WotC can challenge the CC license if it wants to and there may very well be law to back them up. Or not.
2. If Wizards ever tried to revoke the SRD from CC, they would no longer be following CC's terms, and thus they would no longer be using the trademark in an authorised manner.
They aren't using the trademark at all.
3. CC can now sue them for trademark infringement.
WotC isn't using the trademark. The CC license is not a trademark, and it's the license which they could challenge or attempt to revoke.
 

overgeeked

B/X Known World
That quote is not a statute.
In the rest of the post that you ignored there's a database filled with relevant cases.
I'm also not suggesting that they will do it.
You are doing exactly that.
I'm saying that people who are adamant that such a challenge can't be done are wrong.
In the US anyone can sue anyone else for any reason at all. That's the ground state of the legal system. Not some magical thing unique to Creative Commons. The fact you're consistently ignoring is that the CC has already been tested in court and won.
I really don't want to try and be Nostradamus.
So stop trying to be.

It's possible that an asteroid will strike the Earth tomorrow. But there's basically no point to any of us actively worrying about it.
 

pemerton

Legend
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.
It's folly to predict who would win without any facts.

But to me, CC's specification of the terms on which they let people use CC's trademarks to describe the licence agreements those people are offering seems pretty clear.

But it's not clear that that puts any bar on WotC rescinding its offer - because at that point WotC would no longer be using CC's trademarks!

There's making a nuanced and extremely specific case for why CC might not achieve what it claims (which is what pemerton is doing), and there's arguing that we're fools for thinking CC offers any protection at all.
I reiterate - I'm not here to bury the CC, I'm here to praise the OGL (with apologies to Brutus and to Shakespeare).

There are cases that directly deal with CC. Look them up. There's a link.
I have, and discussed one upthread. I've also done a cursory lit review, posted in the Lawyer-PSA thread.

You and @ThorinTeague can make whatever assertions you want. I put more faith in Molly Shaffer Van Houweling <app stub>, who is a Professor at UC Berkeley and on the board of CC. I've read her 2007 piece on "The New Servitudes". Next on my list to look at is the 2011 one on the Blizzard case: I don't know the case, but from the title I'm hoping this will help me make sense of "automatic offers".

ADDENDUM: I just read the key bits of the paper. It didn't help me on my key question, but it's interesting and definitely relevant to helping understand a theory of the CC licence on which "automatic offers" can survive a withdrawal by WotC of its actual offer.
 

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