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

 

[teitan]

I imagine it depends on the retroclone, since the 1974 OD&D is a very different beast from Unearthed Arcana-style AD&D 1E. That said, it's important to remember that it's not just a question of rules mechanics per se. The 3.5 SRD has more spells than the 5.1 SRD has spells; the 3.5 SRD has more magic items than the 5.1 SRD has magic items; the 3.5 SRD has more monsters than the 5.1 SRD has monsters.

To put it another way, you could almost certainly make some sort of OSR game with the 5.1 SRD. But the 3.5 SRD simply offers more to work with, and so OSR games which have already been produced under the 3.5 SRD probably can't just switch out the 3.5 SRD under the OGL v1.0a for the 5.1 SRD under CC license, because there's a strong chance that they've used stuff from the former that isn't in the latter.

The concept is, sure, but since arrangements of words can potentially be a copyrightable expression, that means that you might be in tricky territory if you try to make up a 5.1 SRD-derived psionic power called tower of iron will, for instance. That term is in the 3.5 SRD, but not in the 5.1 SRD.

EDIT: For an example of this, OSRIC has an entry for the babau demon (page 213 of OSRIC v2.2). That's a creature you can find in the 3.5 SRD, but doesn't appear in the 5.1 SRD. So OSRIC can't just be ported over from the OGL to Creative Commons as-is.

Yes but those are all mechanically different from 1e, 2e or 5e that you can recreate them within the context of the 5.1 and CC-BY and not be in violation of the CC-BY. You are creating something new or tweaking. It's overthinking to be bringing in the OGL and 3.x SRDs because even then, what was crafted from them wasn't exactly sitting down with each element and going "this is morphing here like this" Race as Class for example did not exist in 3.x SRDs, just the concept of class, just the concept of dwarf. Magic Items don't require that they be spelled out in an SRD to be out there. Since the OGL is already out there and these things are already OGC, then they are already fair for development and then release into CC-BY as 5.1 derived because they can be modeled fairly and legally. It is not different than looking at a different licensing model. FOr the record I am looking forward to ORC and the opportunities it will provide as an alternative and I just think all this gnashing over 1.0a being made "irrevocable" is moot because WOTC doesn't care about 3.x rules or third party rules that are under it. If they cared about the OSR they already would have squelched it instead of looking to them as consultants for 5e.

 

[Maxperson]

In the rest of the post that you ignored there's a database filled with relevant cases.

Okay. Cases get overturned or new cases on slightly different facts and law turn out differently sometimes.

You are doing exactly that.

You don't get to tell me what I'm doing. I get to tell you, and I'm telling you that I'm not saying that they will challenge it.

In the US anyone can sue anyone else for any reason at all. That's the ground state of the legal system

That's true, but if you don't have any grounds to sue on it gets tossed out right quick. Judges have dockets that are overflowing and they don't have time for that kind of silliness.

 

[teitan]

Epic levels are missing to get the CMI of BECMI, but surely you can invent rules for Levels 20-50 without referring to those?

Yeah levels beyond 20 don't really mean anything, Epic levels aren't something that need an SRD to protect. There are BECMI clones that go to level 36 and Epic Level 3.x was a whole other ball game that was Effective Levels and all sorts of weirdness that yeah.

 

[Maxperson]

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!

Is WotC even using any of CC's trademarks?

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.

Has that theory been tested in court?

 

[pemerton]

Has that theory been tested in court?

I don't know. I don't know of any such case. I'm hoping someone can point me to one - as I read my of the literature I'll be looking to see what cases the academics point to.

I hope you (and others) can see that I'm not being dogmatic here, but am trying to build up my knowledge - and express it in my posts with appropriate honesty and circumspection - by drawing on reliable sources rather than instinctive and "common sense" responses. This is partly because that's my view of academic ethics. It's also because I think the community as a whole (though not some of us as individuals) got UTTERLY BLINDSIDED by WotC's move last month, in part due to not having taken seriously the need to have a legal theory of the OGL, and it would seem silly to go down the same path a second time.

 

[Maxperson]

I don't know. I don't know of any such case. I'm hoping someone can point me to one - as I read my of the literature I'll be looking to see what cases the academics point to.

I hope you (and others) can see that I'm not being dogmatic here, but am trying to build up my knowledge - and express it in my posts with appropriate honesty and circumspection - by drawing on reliable sources rather than instinctive and "common sense" responses. This is partly because that's my view of academic ethics. It's also because I think the community as a whole (though not some of us as individuals) got UTTERLY BLINDSIDED by WotC's move last month, in part due to not having taken seriously the need to have a legal theory of the OGL, and it would seem silly to go down the same path a second time.

Absolutely I see that you are not being dogmatic. You and almost all of the other attorneys here have been very clear that you are giving opinions that could be right or wrong, but you believe it to be X, and then post the legal theories and/or case law to back that opinion up.

It's primarily those without legal backgrounds that are being dogmatic about their position of what will happen.

 

[teitan]

Perhaps the new world of the CC licence is guaranteed never to head in the same direction. But I haven't seen what the guarantee is yet, either in legal or in commercial terms.

So all the technology and other people who have used these licenses and challenging of them that would undermine the very fabric of, well, the modern world, isn't enough evidence? The apps on your phone, your TV, your websites, your computer, your OS, your tablet etc. all use Creative Commons licenses of varying types. For any of them to be legally challenged and made revocable would undermine not just our technology but also the entire world economy in one fell swoop. Even so much as saying WOTC can revoke the CC-BY for 5.1 because it opens the can of worms that anyone who has issued a CC-BY for their product can now revoke their licenses and undue a thread that binds everything. Like midichlorians.

 

[Maxperson]

So all the technology and other people who have used these licenses and challenging of them that would undermine the very fabric of, well, the modern world, isn't enough evidence? The apps on your phone, your TV, your websites, your computer, your OS, your tablet etc. all use Creative Commons licenses of varying types. For any of them to be legally challenged and made revocable would undermine not just our technology but also the entire world economy in one fell swoop. Even so much as saying WOTC can revoke the CC-BY for 5.1 because it opens the can of worms that anyone who has issued a CC-BY for their product can now revoke their licenses and undue a thread that binds everything. Like midichlorians.

Maybe, or maybe not. Different kinds of products have different statutes and rules that govern them. Even if say the CC was overturned in whole or in part for TVs, that doesn't mean that cell phones would be affected. And something that works to overturn the CC for cellphones might not work with computers. And RPGs are different from all of those, so if the CC could be revoked for RPGs, all of the above could still be safe.

 

[teitan]

The CC FAQ expressly acknowledges that licensors can withdraw their offer to licence. So WotC doing that would not be violating any agreement it has with CC in respect of CC's IP rights.

The FAQ clearly says it can not be revoked. I posted a screen shot of the answer earlier in the thread.

 

[see]

So all the technology and other people who have used these licenses and challenging of them that would undermine the very fabric of, well, the modern world, isn't enough evidence?

No. Judges care a lot about court precedents and long-hallowed legal authorities, and may be convinced by theory arguments from law professors and legal journals. "Everybody in the business does it this way!" not so much.

 

[teitan]

Maybe, or maybe not. Different kinds of products have different statutes and rules that govern them. Even if say the CC was overturned in whole or in part for TVs, that doesn't mean that cell phones would be affected. And something that works to overturn the CC for cellphones might not work with computers. And RPGs are different from all of those, so if the CC could be revoked for RPGs, all of the above could still be safe.

Yes, yes it does. It means big chunks of technology would have pieces of it removed. They work off of largely the same technology because they are all app based. There are different CC weaved through the same programs and your phone and tv etc will use the exact same tech. My tech certifications are in these areas. You will find a mix of different licenses in every program and you pull one string and its done.

 

[teitan]

No. Judges care a lot about court precedents and long-hallowed legal authorities, and may be convinced by theory arguments from law professors and legal journals. "Everybody in the business does it this way!" not so much.

Yes I am aware, I am working on his same hypotheticals.

 

[ThorinTeague]

No. Judges care a lot about court precedents and long-hallowed legal authorities, and may be convinced by theory arguments from law professors and legal journals. "Everybody in the business does it this way!" not so much.

Right, and my not at all professional understanding is that precedent of rolling back open licenses exists in the software world, but it could always be decided that that does not apply to analog gaming. If that counts as precedent, it’s pretty much a slam dunk that there’s no possible way OGL can be revoked. If it does not Count as precedent the wed be in for a fight.

 

[ThorinTeague]

Right, and my not at all professional understanding is that precedent of rolling back open licenses exists in the software world, but it could always be decided that that does not apply to analog gaming. If that counts as precedent, it’s pretty much a slam dunk that there’s no possible way OGL can be revoked. If it does not Count as precedent the wed be in for a fight.

That is, if it went to court.

 

[Maxperson]

Yes, yes it does. It means big chunks of technology would have pieces of it removed. They work off of largely the same technology because they are all app based. There are different CC weaved through the same programs and your phone and tv etc will use the exact same tech. My tech certifications are in these areas. You will find a mix of different licenses in every program and you pull one string and its done.

I'm not talking about the tech used. I'm talking about some of the rules and statutes that govern cell phone use being different than the ones that govern TVs, and those being different than the ones governing computers, all of which have differences from those that govern RPGs. A successful challenge, if one can even be accomplished, could come through that avenue and not the individual tech CCs that you are talking about.

 

[pemerton]

This might be interesting to @ThorinTeague, @Maxperson, @Ondath and @Parmandur, as well as others interested in the technical aspects of CC.

As I already posted, Molly Van Houweling is on the board of CC - in fact her Berkeley profile says she's the Chair.

In 2007 she wrote a piece on "The New Servitudes" criticising the "automatic offer" mechanism: 96 Geo. L.J. 885

In 2011, she wrote something of a sequel to that, as I mentioned just upthread: "Touching and Concerning Copyright: Real Property Reasoning in MDY Industries, Inc. v. Blizzard Entertainment, Inc." 51 Santa Clara L. Rev. 1063

The following is from p 1071 of that second paper:

There are reasons to doubt whether enforcement of these "new servitudes" is generally desirable. But for now I want to focus on another question: assuming it is possible for intellectual property owners to impose-with notice-use restrictions on copies of their works, what substantive limitations should there be on the terms of those restrictions?​

The automatic offer is not a restriction on use in the strictest sense, but it is a similar sort of legal consequence ostensibly imposed on dealing with the work, that appears to be intended to operate independently of contract.

Maybe this author has changed her mind over the past decade. But if a board member of CC can write her papers, I don't feel too self-conscious about posting my own uncertainties as to the precise legal mechanism at work!

 

[pemerton]

So all the technology and other people who have used these licenses and challenging of them that would undermine the very fabric of, well, the modern world, isn't enough evidence? The apps on your phone, your TV, your websites, your computer, your OS, your tablet etc. all use Creative Commons licenses of varying types. For any of them to be legally challenged and made revocable would undermine not just our technology but also the entire world economy in one fell swoop. Even so much as saying WOTC can revoke the CC-BY for 5.1 because it opens the can of worms that anyone who has issued a CC-BY for their product can now revoke their licenses and undue a thread that binds everything. Like midichlorians.

First, you haven't understood what I'm saying.

Second, I think the analogies between what WotC is doing with its SRD, and what is happening in the area of software, are very weak.

Third, you might want to look at my post just upthread. I trust the chair of the board of CC who is also a professor of IP law at UC Berkeley more than I trust you, when it comes to expressing sound opinions about the legal workings of the CC licence.

 

[Enrahim2]

I don't want to sound like Chicken Little, nor like Nostradamus.

But 10 and 15 years ago, when I was pointing out in my posts that there were interesting nuances to the OGL that would be enlivened if WotC ever decided to withdraw its offer to licence, nearly everyone who replied told me I was wrong, that the OGL was irrevocable, etc.

So you were the one giving them this idea!?

(Hopefully) joke asside, I want to point out that they haven't actually clarified their legal position at all. They have only made a statement about "no longer authorized" - a statement that as far as I understand is basically void of well established meaning. Moreover they have made some vague statements about the effects of this in ill defined terms like "SRD-based", and without any clear statements as to how they perceived future downstream work.

It so happens that the extreme vagueness of their statement do not exclude them clumsily refering to those issues you perceived many years ago. However if this was what they were really intending to say they had ample time to clarify their language between 1.1 and 1.2. That they kept the same basic empty formulations make them seem much more like the bully teen claiming the school gate, and when asked under what right answers "Just because. Now give me your lunch money as toll". While some first graders might just hand over their money to avoid trouble despite knowing what the bully does is not having any serious legal backing.

Of course the teen would not get much business if there are a bunch of adults around assuring the kids that they can just go past, and if the teen try with more than words, they are ready to step in. (And then we have the lawyer in the back shouting to everyone "Actually, the kid has a point. The gate is slightly outside the regulated school ground, and according to this ancient rarely used law...")

 

[Dannyalcatraz]

Mod Note:

Generally speaking, using the “laugh” emoji to mock another poster won’t earn punishment. Those who make a habit of it, however, will qualify for an exception to that.

Clear?

 

[teitan]

I'm not talking about the tech used. I'm talking about some of the rules and statutes that govern cell phone use being different than the ones that govern TVs, and those being different than the ones governing computers, all of which have differences from those that govern RPGs. A successful challenge, if one can even be accomplished, could come through that avenue and not the individual tech CCs that you are talking about.

those licenses govern the tech and how the device works. If the same license is used in tech and used by RPG companies then it impacts both until challenged in court. The companies can withdraw the license and the users would have to issue challenges and it could be in court for years before the dust settles. CC won't allow that. Even with an RPG company. It ruins their integrity and reliability.