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

 

[overgeeked]

Again, they aren't going up against CC.

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

 

[Parmandur]

Again, they aren't going up against CC.

They would have to. They really tied their hands permanently here.

 

[Orius]

Well looks like all this recent drama was the nerdrage heard 'round the world. Viva la revolution!

No matter how much they want to spin it, WotC didn't win this round. They had to back down on the OGL stuff for now, but I think the damage is done. Paizo is still going ahead with ORC, and they have a good amount of support on their side. WotC may not get a good amount of 3pp support given the bridges they burned. It may work out for them in the end if their VTT plans are successful.

I wasn't too impacted by what was going on, but my biggest concern was how this was going to affect the OSR stuff and the older edition material WotC has up on DriveThru. It wouldn't make much sense for them to pull down the legacy stuff given the time put into preparing it, but companies pull stupid moves all the time. And all you need is management who doesn't care about the actions of previous managers and thinks their current schemes can make enough money to cover the losses by abandoning previous decisions. But since they seem to be interested in eventually adding older material to their digital platforms they might not be thinking of pulling it.

3. There are a number of stuffed and satisfied mind-flayers that are leaving the c-suite right now.

Doubt it. As my 2e MM states, mind flayers prefer to eat the brains of thinking creatures.

 

[Ondath]

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!"

 

[pemerton]

Eh, no, this is paranoid. If WotC tried that to a 3PP, they'd get ganged on by dozens of amicus curiae who have a vested interest in keeping Creative Commons as is. This was narrower with OGL.

I mean, this is as likely as a future nuclear war making current American copyright law obsolete and making CC unenforceable. Sure, there is an incredibly contrived hypothetical scenario where it could happen, but the things needed to get there are so crazy that we'd probably have bigger worries (like everything that currently relies on CC from Wikipedia to other things crumbling).

No one thinks that CC is "unenforcable".

But suppose that WotC argued that, if it changes its mind about wanting to make future offers, there was no longer any basis on which "automatic offers" arise every time an existing licensee distributes the licensed material to a new recipient. What would your reply to them be? What makes it true that the "automatic offers" keep getting made, even when WotC is insisting that it rescinds all offers not already accepted?

I'm not saying that WotC would be correct in this case. But generic remarks about "enforceability" or "irrevocability" of extant licences don't help. And whereas there is a strong argument that WotC is bound by its representations on its FAQ, it's less clear that it is bound by CC's representations on CC's FAQ.

I am articulating the point with more legal detail that @Maxperson, but I think we are saying much the same thing.

 

[Remathilis]

Doubt it. As my 2e MM states, mind flayers prefer to eat the brains of thinking creatures.

Oh, they thought about. It doesn't mean it was a GOOD thought though...

 

[pemerton]

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.

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.

 

[pemerton]

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!"

I don't think the CC is "unreliable". My own view is that the OGL is more reliable, from a legal point of view, simply because its mechanism is clearer and WotC is quite probably constrained by its past representations. But that is the view of someone whose legal context is Australian, not American - perhaps American private law is more comfortable with the notion of an "automatic offer" in the form the CC relies upon.

 

[Ondath]

No one thinks that CC is "unenforcable".

But suppose that WotC argued that, if it changes its mind about wanting to make future offers, there was no longer any basis on which "automatic offers" arise every time an existing licensee distributes the licensed material to a new recipient. What would your reply to them be? What makes it true that the "automatic offers" keep getting made, even when WotC is insisting that it rescinds all offers not already accepted?

I'm not saying that WotC would be correct in this case. But generic remarks about "enforceability" or "irrevocability" of extant licences don't help. And whereas there is a strong argument that WotC is bound by its representations on its FAQ, it's less clear that it is bound by CC's representations on CC's FAQ.

I am articulating the point with more legal detail that @Maxperson, but I think we are saying much the same thing.

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. The point you make would apply to the GPL, the BSD or any other open license that's heavily used today. And if those are uncertain, well then nothing is certain.

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).

Granted, this targets a lay audience so maybe she overlooks some important caveats. But what I understand from this is that the CC is assumed to be genuinely irrevocable by lawyers working in the field, so the question of what happens when WotC wants to withdraw its offer and believes this should stop users downstream from making new content should have been answered.

 

[Ondath]

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.

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!