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

 

[pemerton]

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 m

And why would they? Until someone engages with them in legal terms, why would they set out their (presumably very expensive!) legal advice and reasoned claim about their legal entitlements? I'm sure they have multiple arguments ready to go should they need them.

My point is not addressed to WotC, who don't need to read my posts to work out their commercial and legal strategy!

It's addressed to fellow posters, and "the community" more generally: last time you took comfort in your own rather dogmatic and under-argued assertions about the legal character of the OGL, you were caught by surprise when WotC expressed a different view about those matters. So this time, perhaps be less dogmatic and more reasoned, including in expressing views as to the legal merits of OGL, ORC and CC.

I appreciate that not everyone can afford high quality legal advice, but that's a reason to be measured, not a reason to make dogmatic assertions of exactly the same sort that have turned out to be nothing but hot air in the current circumstances.

 

[pemerton]

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.

You appear to not understand the legal issues being discussed (like the difference between a licence agreement and an offer to enter into a licence agreement), and not to recognise the absolutely radical differences between the software situation and WotC's licensing of the SRD.

You also attribute powers to the CC organisation ("CC won't allow that") that it does not possess.

As a result, your post is hyperboblic and, frankly, misinformation.

 

[ThorinTeague]

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.

^ I would tend to recommend the same.

My opinions on the open gaming license in the legality of revoking it come from a few different sources, one is the people who wrote it. Two is wizards of the coast themselves. Three is a lawyer named Tarantino who Wrote his PhD dissertation on open gaming license.

Now I have heard some good counter points. (Not on here.) Most of them revolve around the idea that the word perpetual does not mean irrevocable legally. I don’t have the education or experience to argue authoritatively one way or the other.I am however pretty confident that if wizards of the coast did indeed win their legal victory and revoke 1.0a, the fallout from the bad faith might actually cost wizards more than they would stand to gain from squeezing out those last few fractions of a percentage point to achieve the coveted full monopoly.

 

[ThorinTeague]

And why would they? Until someone engages with them in legal terms, why would they set out their (presumably very expensive!) legal advice and reasoned claim about their legal entitlements? I'm sure they have multiple arguments ready to go should they need them.

It certainly seems safe to assume that a competent megacorp would have their legal ducks in a row before embarking on this journey they’ve assigned to themselves.

It also seems like they could remember the history of 2008-2012 et. Al.. but here we are

 

[pemerton]

My opinions on the open gaming license in the legality of revoking it come from a few different sources, one is the people who wrote it. Two is wizards of the coast themselves. Three is a lawyer named Tarantino who Wrote his PhD dissertation on open gaming license..

There are two different things that I believe you're running together.

WotC has entered, and in the future will enter, into many licence agreements. Some under the OGL, now some under CC. My view is that neither is revocable at will be WotC. WotC has never clearly asserted the contrary - the closest it has come (that I know of) is a hint in a leaked document associated with the never-revealed OGL 2.0 (I think I saw this in mid-Jan - if you want I can find the post that it was in).

WotC currently also offers to enter into licence agreements, again under both the OGL and the CC. These are both gratuitous offers, in the sense that WotC is not legally obliged to make them: it chooses to do without compulsion. It can cease to make those offers at any time. No one that I know of disputes this in relation to the OGL; the FAQ on the CC site expressly recognises that this is a possibility for CC.

The interesting question, if that second thing happens, what is the capacity of people who at that point don't have a licence from WotC to get one. Clearly they are not going to get one straight from WotC, as it has stopped offering them.

I think the better, though not at all certain view - based on the text of the OGL alone - is that there is such a power under the OGL. This is because each existing licensee has, as part of their entitlements, the power to issue new licences in respect of WotC's material. So a newcomer would need to take a licence from one of those existing licensees (eg Hypertext SRD). I think this view becomes much stronger when one goes beyond the licence text alone to the fact that WotC made various representations about this, including but not limited to its FAQ, which have been relied upon by other parties.

When it comes to CC, the mechanism for resolving the interesting question is quite different. Section 2.a.5.A provides that each person who receives the material from a licensee is automatically made an offer of a licence. And as this is attached to existing licensees, it is intended to endure even if the licensor withdraws their offer to enter into new licences.

It's this "automatic offer" idea that I think is a bit mysterious - not if the licensor has not withdrawn their own offer, but if they have - because in that latter case it's not a real offer at all. That's why Van Houweling characterises it as a "servitude" - ie a quasi-proprietary phenomenon that is created by contract but then takes on a life of its own.

 

[teitan]

You appear to not understand the legal issues being discussed (like the difference between a licence agreement and an offer to enter into a licence agreement), and not to recognise the absolutely radical differences between the software situation and WotC's licensing of the SRD.

You also attribute powers to the CC organisation ("CC won't allow that") that it does not possess.

As a result, your post is hyperboblic and, frankly, misinformation.

You always respond that way and it frankly comes off as a way to end discussion rather than anything of a solid nature, have a great life.

 

[Remathilis]

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.

I mean, if a significant amount of power went against the CC, there is a chance it could be revoked. If the Supreme Court rulings from the last decade are any indication, then I don't believe you can call anything "irrevocable" or "settled law" as long as there is enough money and political willpower to see it overturned.

That said, the CC isn't going to go quietly and it isn't WotC's to control like the ogl was. It's about as safe as you are going to get for now. It's certainly as safe as ORC or any similar licence.

 

[teitan]

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.

It’s a good thing so far case law has stood by them then huh? Since 2002.

 

[Bravesteel25]

Hasbro has to keep up goodwill with the only part of the corporation that makes significant profit over expenses.

Do you know where I can find this information?

 

[Maxperson]

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.

Never mind. It's clear that you continue to not understand what I am saying.

 

[Xyxox]

I don't know what will be in ORC. It could be ORC will be so well tailored for RPG publications that it will just be easier to deal with it that way. The biggest drawback of course is they won't be able to use 1.0a or CC content in it, unless they also include those licenses. In which case, it's a bit messier because then the benefits of "not-WOTC" and "independent non-profit" are overridden by "still bound to WOTC."

I imagine a slightly revised Pathfinder 2 and Kobold's Black Flag will both have SRDs released under ORC.

 

[Dausuul]

You always respond that way and it frankly comes off as a way to end discussion rather than anything of a solid nature, have a great life.

Always? He certainly does not. I don't think I've ever gotten such a response from @pemerton. Which might have to do with the fact that I start from the proposition that he has a law degree, and I do not, and therefore when I see him say something that contradicts my understanding of how the law works, I'm probably wrong about something and should try and work out what that is*.

When you're a non-expert arguing with an expert on their subject of expertise, sometimes the response is going to be "Look, your understanding of this is just wrong on so many levels that there isn't even a way to engage your argument." You could say that's a way to end discussion, and in some sense you'd be right -- it's an attempt to end a non-productive avenue of discussion which cannot lead anywhere useful.

As for the "hyperbole and misinformation" bit, well, when what you're saying is hyperbole and misinformation, there's only so many ways to express that. There has been an incredible amount of both flying around the boards these last couple of weeks, with threads full of multiple pages of people confidently asserting things about the law that are just totally false. It's extremely unhelpful for dealing with the actual issues raised by WotC's actions.

*Unless I then see a post by some other person with a law degree disputing his point. Then I just keep my head down and do my best to figure out what they're talking about.

 

[overgeeked]

Always? He certainly does not. I don't think I've ever gotten such a response from @pemerton. Which might have to do with the fact that I start from the proposition that he has a law degree, and I do not, and therefore when I see him say something that contradicts my understanding of how the law works, I'm probably wrong about something and should try and work out what that is*.

When you're a non-expert arguing with an expert on their subject of expertise, sometimes the response is going to be "Look, your understanding of this is just wrong on so many levels that there isn't even a way to engage your argument." You could say that's a way to end discussion, and in some sense you'd be right -- it's an attempt to end a non-productive avenue of discussion which cannot lead anywhere useful.

As for the "hyperbole and misinformation" bit, well, when what you're saying is hyperbole and misinformation, there's only so many ways to express that. There has been an incredible amount of both flying around the boards these last couple of weeks, with threads full of multiple pages of people confidently asserting things about the law that are just totally false. It's extremely unhelpful for dealing with the actual issues raised by WotC's actions.

*Unless I then see a post by some other person with a law degree disputing his point. Then I just keep my head down and do my best to figure out what they're talking about.

If this whole thing has taught me anything, it’s that experts can be wrong and they disagree with each other…quite a lot at times. We have several threads where lawyers and other legal experts from around the world, who are all apparently quite good at their jobs, all completely disagree on just about every single facet of this debacle. So when one poster is saying, in effect, that long-term contracts aren’t actually binding…when a huge swathe of modern society depends precisely on long-term contract being binding...yeah. I’m going to go with this poster is just wrong. Laughably so.

 

[Dausuul]

So when one poster is saying, in effect, that long-term contracts aren’t actually binding…

Nobody said long-term contracts aren't binding. You are using "in effect" to put words in somebody's mouth (I think @pemerton's, but I'm not positive).

If this whole thing has taught me anything, it’s that experts can be wrong and they disagree with each other…quite a lot at times.

There is always disagreement among experts on any topic. But that doesn't mean it's safe to just wave off expert opinion. When experts are wrong, it's generally on some esoteric detail, or an issue that pushes the limits of what is known. They are almost never going to be "laughably wrong" about basic matters in their field... and when we non-experts think we've found a case where this isn't so, it's usually because we misunderstood what the expert said.

 

[Umbran]

Mod Note:

Folks, some of you are getting a little testy and personal. Sometimes folks get into a place where it becomes difficult to back down, as it feels like a loss of face.

Consider this your no-fault invitation to back off. No loss of face, as this applies to all of you. Chill out, and treat each other better. Thanks.

 

[pemerton]

If this whole thing has taught me anything, it’s that experts can be wrong and they disagree with each other…quite a lot at times. We have several threads where lawyers and other legal experts from around the world, who are all apparently quite good at their jobs, all completely disagree on just about every single facet of this debacle.

Where are these threads?

I think what Steel_Wind posted in reply to me is far more accurate:

Correct. And while we were busy disagreeing with Kit Walsh (who was initially largely of the same view as the OP), she did a 180 and reversed her position in her blog later that same day - and agreed with the majority view here.

We've quibbled in the footnotes, but not in the main.

So when one poster is saying, in effect, that long-term contracts aren’t actually binding…when a huge swathe of modern society depends precisely on long-term contract being binding...yeah. I’m going to go with this poster is just wrong. Laughably so.

Which poster are you talking about?

I get the impression that you don't know the difference between a contract and an offer to contract, and that you don't understand how licensing agreements actually operate in legal terms. As I posted upthread, I will take my lead from a professor of IP law at UC Berkeley who also chairs the board of CC.

the CC isn't going to go quietly and it isn't WotC's to control like the ogl was. It's about as safe as you are going to get for now. It's certainly as safe as ORC or any similar licence.

This notion of "control" seems to me to be quite misplaced. Owning the copyright in a licence text, and owning a trademark over the licence label ("Creative Commons") doesn't give a person or entity (such as the CC organisation) any control over the legal relationships that parties enter into using that text to state the terms of their arrangement.

The CC is not a legislator or a law-enforcement body that now suddenly has the power to police WotC.

If WotC withdraws its offer to licence its SRD on the terms of the CC-BY (which, as I've pointed out, the CC FAQ expressly recognises is something that can happen) then the continued availability of licences over the SRD to new licensees depends upon the "automatic offer" mechanism that is set on in section 2.a.5.A of the CC licence.

I've already pointed to multiple academic articles, including two by the current chair of the CC board, which put that mechanism under the microscope. It's legal operation is not straightforward. That doesn't mean its ineffective. It doesn't mean its obviously effective either. Nor is there any guarantee that all jurisdictions will look at it the same way - my very rough intuition is that Australian and UK courts might be a little more sceptical about it than US courts.

I am still doing my reading - but if anyone knows of a case where the automatic offer mechanism has been analysed and upheld in the context of a withdrawal of offer by the licensor, I'd be grateful if they could point me to it.

 

[Mistwell]

I imagine a slightly revised Pathfinder 2 and Kobold's Black Flag will both have SRDs released under ORC.

Sure if stuff is new, and based on proprietary stuff and not 1.0a material, it should work fine.

Problem people seem to be grappling with is what to do with all the existing 1.0a material they want to use.

 

[Minigiant]

Do you know where I can find this information?

Hasbro's Quarterly financial statements.

The nomWOTC part of Hasbro has expenses eating up most of their profit.

It's why Alta Fox tried to shake up leadership and split off WOTC. Because the directors let the nonWOTC 2/3rds of Hasbro run crazy expensive and WOTC brings more GP% and NP%.

 

[Michael Linke]

Hasbro's Quarterly financial statements.

The nomWOTC part of Hasbro has expenses eating up most of their profit.

It's why Alta Fox tried to shake up leadership and split off WOTC. Because the directors let the nonWOTC 2/3rds of Hasbro run crazy expensive and WOTC brings more GP% and NP%.

Board game industry has suffered last few years over component costs. The IP, the rules, is the most profitable part. D&D is basically a board game that's 100% IP.

 

[Jadeite]

Board game industry has suffered last few years over component costs. The IP, the rules, is the most profitable part. D&D is basically a board game that's 100% IP.

Excluding Spelljammer which was about 50% cardboard.