OGL WotC& DnD & OGL & WTF & LMAO (Podcast Column)

Texas in August Studio

Texas in August Studio
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The podcast may be found here.

Introduction

Greetings from the best dive bar in Kadath. I am resigned. When I am resigned, I go looking for bourbon.

The latest brouhaha in the table-top RPG (TT RPG) circles is about how Wizards of the Coast (WotC) is going to change the Open Game License (OGL). Specifically, an anonymous source leaked a copy of a revision to the original D&D OGL (Codega, Dungeons & Dragons’ New License Tightens Its Grip on Competition, 2023). WotC owns the D&D brand, and Hasbro owns WotC. WotC and Hasbro want to change a document released more than 20 years ago – a document that helped produce the current TT RPG environment.

This act has got a lot of attention and commentary from gamers. However, with respect, many of them miss the proverbial forest for the trees in this scenario. This situation is not over, regardless of what the latest releases from WotC suggest (Codega, Wizards of the Coast Breaks Its Silence on Dungeons and Dragons’ Open Game License, 2023). However, it was probably not about the third-party producers in the way some gamers think.

What follows is an educated guess – but what WotC did is a response to Hasbro’s recent financial setbacks and anticipation of increased brand interest around the forthcoming D&D movie.

This column is not to defend corporate America here, not under the leadership of Hasbro or WotC. If given the choice of spending time with them or the sinister zulkirs of Thay at a cocktail party, I might choose the zulkirs. Nevertheless, this column should not descend into histrionics or slander. Anyway, the overall attempt to roll out the proposed changes to the OGL met with all the success of someone at the county fair trying to sell scoops of fresh naughty word in waffle cones.

RPG Context

To take a step back, the OGL is the “open game license.” WotC acquired the D&D brand, and associated properties, in 1997. The purchase came after TSR – who owned the brand then – spent years diligently working its way into ruin. Hasbro purchased WotC in 1999 (CNN Money, September). Then vice president at WotC Ryan Dancey generated a document that opened many of the core game mechanics and terminology for public use. This was the System Resource Document (SRD). Some of this came in response to Dancy’s concern about Hasbro dropping but not selling the D&D game, in which case the game could disappear into a legal hole. Some of Dancy’s motivation came from a desire to place agency in the hands of fans to generate material and grow the overall brand (Appelcline, 2011). Dancy describes the D&D properties as Network Externalities in an interview – the property’s value is not intrinsic to the property but in its use by a community. The OGL allowed the SRD to increase community engagement. The OGL also signaled a shift from the highly litigious TSR to an era where WotC encouraged fans to use the game and generate material. Moreover, the fan-generated material would point economically back to the D&D brand published by WotC (Roll For Combat, 2023).

To use a software analogy, the OGL was a legal agreement to use the SRD or the code of an operating system. This allowed independent developers to create applications compatible with and requiring the operating system. This first happened in the year 2000.

Game columnist Graeme Barber described what followed as an artificially generated high tide that lifted all the proverbial boats and helped to promote the growth of TT RPG as a hobby (Barber, 2023). The years following the creation of the OGL would see the formation of companies such as Paizo, Kobold Press, and Critical Role Productions. Paizo created a game system, Pathfinder, initially based on a now-past edition of the D&D rules set. Pathfinder is in its second edition. These years would also see WotC changing the operating rules of D&D several times, including the 3rd edition, 3.5, 4th edition, and 5th edition. Some people using the OGL kept up with these changes to the system across the editions. However, many did not. More on this in a moment.

Online tools’ growth has changed the TT RPG environment in the last 20 years. PDFs have become a preferred method for publishing and distributing game content. One of the biggest distributors of game PDFs is DriveThruRPG.Com. The internet also made remote gaming possible – gamers could be in different countries and game together. Remote gaming motivated the creation of virtual table-tops (VTTs), which provide tool sets for rolling dice, dealing cards, tracking in-game resources, and facilitating combat. Some popular VTTs include Roll20 and the Foundry (The Foundry, 2023). WotC has its online platform to provide these services in the form of D&D Beyond (Bradford, 2017). More on this in a moment as well.

Financial Context
A leak came in December that WotC is changing the OGL and had planned to release the new version in early January. The new version is significantly more restrictive and attempts to funnel D&D users into more tightly controlled properties. It also comes with licensing fees – a new feature. The new OGL also attempts to give WotC ownership and control of fan-created material rather than simply allowing its existence.
Further, the leaked new OGL is also an attempt by WotC to assert retroactive control. An OGL issued in 2023 would cover any material since the appearance of the original OGL in 2000. The new OGL came after WotC CEO Cynthia Williams said the D&D brand was under-monetized.

Paizo Inc publishes the Pathfinder game system nominally under the OGL. That system is the largest single competitor for the D&D brand (Stevens, 2009). Critical Role is a popular live-streaming service launched in 2015 that allows fans to watch the games of some theatrical players (ICv2, 2018). The live streams of the show generated more than $9 million in revenue in 2020 (Biazzi, 2021). It has spawned two seasons of an animated Amazon series (Hall, 2021).

WotC and Hasbro want a piece of that action – they want all that action if they can get it. The new OGL could give WotC much after-the-fact leverage over Paizo and Critical Role, among others. Possibly relevant here is that the series initially used the Pathfinder rules system even if it now uses D&D 5th edition rules mechanics. At the most extreme, the new OGL would functionally give WotC control over Paizo and Critical Role and any revenue these companies generate.

The current president of Hasbro is Chris Cocks – who once worked as president and chief operating officer of WotC (Whitten, 2022). Cynthia Williams is the current Wizards of the Coast and Digital Gaming boss (Dohm-Sanchez, 2022). Additionally, WotC and digital games make more money for Hasbro than the company’s legacy products of toys and board games. So, the current president of Hasbro is familiar with WotC, its brands, and its function and will pay attention to it as a revenue source. The head of WotC wants to increase the monetization of the D&D brand.

It is worth noting that Hasbro had a lousy year in 2022. The values of its shares dropped 40% – twice the drop of its competitor Mattel (Monica, 2022). Further, in December, WotC canceled the development of five games, meaning the money it had already invested was lost (Irorita, 2023). Finally, analysts at Bank of America issued a rare double downgrade of Hasbro stock last year. The Bank asserted that Hasbro and WotC were “destroying the long-term value” of their IP by overprinting trading cards for their card games (Hall, Hasbro strongly refutes claims it is ‘destroying’ Magic: The Gathering, 2022).

At the same time, WotC and Hasbro are preparing for and awaiting the release of the Dungeons & Dragons: Honor Among Thieves film. This is a big-budget film – so it probably had a budget north of $100 million – and is scheduled for release in March. It stars Chris Pine, Michelle Rodriguez, Regé-Jean Page, Justice Smith, Sophia Lillis, and Hugh Grant. All of whom are charismatic performers who have nice hair (Paramount Pictures, 2022).

Further, a D&D live-action TV series is in the works through Paramount+ and eOne. The latter is the studio Hasbro created to produce movies and shows based on its properties. This is the largest production eOne has yet done. Producers tapped Rawson Marshall to lead the series – he directed the Gal Gadot, Dwayne Johnson, and Ryan Reynolds action-comedy movie Red Notice (Dungeons & Dragons TV series headed to Paramount Plus – Polygon).

Educated Guess

Much of the debate in gamer circles is about WotCs ability to end the OGL summarily. Many assert that Hasbro and WotC cannot – I respectfully disagree. It comes down to the words “perpetual” and “irrevocable.” The OGL uses the term “perpetual.” Legally that means the agreement does not automatically have a fixed end. Nevertheless, a licensor may terminate it whenever they want. “Irrevocable” is a legal term that means “no backsies.” The OGL uses the term perpetual (Doctorow, 2023). So, they can end the original OGL but only its function to a specific date. More on this in a moment.

I believe Hasbro and WotC are making this move now – compared to the release of another edition of the game – in anticipation of the movie and series increasing public awareness of the game and interest in the brands. It is also an attempt to intimidate other content producers into submitting and falling into line for WotC. The companies are trying to dominate the TT RPG scene before advertising and media awareness around the movie ramps up. That commercial campaign will lean on the notion that people who enjoyed the movie want more of the experience, then they can play the game. The tacit notion will be that no other TT RPGs exist.

Please consider a report by io9 where third-party publishers said that they had expected WotC to update the OGL. However, they expected the changes in 2025, during the full release of DnDOne (i.e., the 6th edition of the rules set). The leak created much turmoil for WotC, which had intended to release the changes two years earlier than expected (Codega, Cancelled D&D Beyond subscriptions forced Hasbro’s hand, 2023).

The recent financial issues Hasbro and WotC have faced also provide motivation. Both Williams and Cocks need to demonstrate personal power and the ability to generate revenue to keep their respective jobs. How often do you think Cocks and Williams must explain the original OGL to investors? How often do you think they have to explain to investors that the revenue of Paizo and Critical Roll goes to Paizo and Critical Roll rather than to Hasbro?

The degree to which WotC and Hasbro will succeed in this is up for debate. It is financially understandable that they want to shoulder out DriveThru RPG as a distributor, Foundry as a VTT, Critical Roll as a money-making streaming service, and Paizo as a competitor. However, the ability of WotC to throw its weight around is more limited than Williams and Cocks seem to realize.

For example, competitors replicate everything D&D Beyond does quickly and cheaply. Principally through the DriveThru RPG distribution platform and the VTT offered by the Foundry (among others). So, getting gamers to use D&D Beyond will be an uphill battle requiring consumers to change existing purchasing habits. That is not quickly done and requires not pissing people off (Curtis, Quiring, Theofilou, & Björnsjö, 2021). Unless WotC can legally force DriveThru RPG and the Foundry to stop supporting D&D material, which would put limits on consumer options. It would also piss off consumers.

The platform will still distribute for dozens of publishers with many different game engines even if WotC stops DriveThru from selling D&D-related books. The same is true of the systems the Foundry supports. Price gouging is effective if customers have no options aside from the vendors attempting the gouging – and WotC will not be able to have a singular monopoly on RPG products and services.

It also remains to be seen how much legal control over D&D-derived rules WotC and Hasbro have and can enforce. In 2016 a federal court ruled that the structure and gameplay of a card game are not protected by copyright law in DaVinci Editrice vs. Ziko Games (Greenebaum, 2016). That is to say that some game elements can be copyrighted. But most cannot. Hypothetically WotC could copyright and legally enforce that copyright to its game mechanics expression of a fighter and the power progression of a fighter.

However, it would have no say over the game mechanics expression of a fighter as used by Paizo or other companies. The only company using the exact WotC expression of a fighter is WotC. The only qualifier to that is the DaVinci vs. Ziko’s ruling was about card games. The ruling is likely applicable to table-top dice games as a matter of stare decisis (Cornell Law, 2021). The DaVinci vs. Ziko ruling is also the latest round of copyright rulings which (arguably) descend from Baker v Seldon. The Supreme Court ruled in 1879 that a book did not allow an author to exclude others from practicing what the book described (US Supreme Court, 1879). Devin Stone, the vlogger at Legal Eagle, argues that Baker v Seldon will apply in any attempt WotC makes to enforce its copyright and find that what it controls may be smaller than expected (Eagle, 2023).

To again use a software analogy, Microsoft can copyright Microsoft Word. However, they cannot copyright the concept of word-processing software, not even word-processing software that uses tabs and icons to control functions. WotC cannot copyright the concepts of a fantasy TT RPG. They can only copyright their specific expressions of such a game. The other publishing companies involved in the current imbroglio once used the OGL to create compatible games or software. However, that started 20 years ago. They have moved into their systems – i.e., operating systems and software – which are distinct from D&D in terms of specific phrasing, terminology, and game mechanics. WotC and Hasbro will have little leverage over the other gaming companies and platforms even if they cancel the original OGL. The latter parties can walk away.

Many are already going their own way. Paizo and several other game companies are functionally creating a protection consortium. They have pledged to fight WotC’s plans in the courts and release their systems with their versions of the OGL (Paizo, 2023).

Cocks, Williams, and the leadership at Hasbro and WotC are likely overestimating brand loyalty to D&D. The 4th edition of D&D proved unpopular and led gamers to use the Pathfinder system from Paizo. This is to say that gamers have other options and a history of abandoning the D&D brand if it does not suit them (Roll For Combat, 2023).

This is not a win condition for WotC even if it takes the OGL out behind the barn and shoots it (Doctorow, 2023). The other companies will move to different game systems or assert that their systems are already sufficiently distinct from D&D that WotC copyrights do not apply here. The gamers will move to other games and platforms if WotC is sufficiently hostile.

Further, the proposed new agreement attempts to retroactively enforce copyright – or try to say the new agreement, with licensing fees and control issues, should be back-dated 22 years (Codega, Dungeons & Dragons’ New License Tightens Its Grip on Competition, 2023). This is striking in its audacity but is also a non-starter. That is not the way copyright law works. Any changes WotC can legally enforce will only be one going forwards unless others simply surrender. The Supreme Court ruled that once a copyright is registered, the owner can recover retroactively for infringement (Standford Library, 2019). The first OGL was expressly an agreement permitting the use of WotC IP so long as other publishers printed the OGL in their books and followed its terms (Wizards of the Coast, 2003). WotC does not get to ignore this fact, even if it is inconvenient to their bottom line.

Conclusion

Why is WotC attempting to issue this new OGL? The vlogger at Dungeon Craft argues this is deliberately a poison pill – that WotC does not anticipate anyone agreeing to the new OGL. So, the new OGL attempts to force other publishers to stop using any of the D&D related mechanics (Dungeon Craft, 2023). Here I also respectfully disagree. The decision-makers are siloed from the gaming environment by their position in corporate America. They live their social and work lives in different circles. Their exposure to the social network of the people who consume the products of WotC and Hasbro will be mediated by the proverbial “Yes Men” who will exploit the leadership’s human desire for validation (Moltz, 2013). The Hasbro and WotC leadership are pursuing this because they believe it to be the best way to monetize and protect the brand.

Corporations pursue their self-interest to a psychopathic degree (Niose, 2011). The zulkirs of Thay are aware of their evil. They are also a fantasy-construct. The real people who direct actual companies are not evil in the comic book sense. But their power permits them to cause damage while pursuing corporate self-interest. Equally important here is the human need to appear consistent. So, this is not over yet for Cocks and Williams. The public outcry has forced WotC and Hasbro to retreat from their goals here – but this is a temporary setback for them. They will try to kill the original OGL. They will likely succeed. For all the good it will do them. This should not happen before the release of the movie. The other publishers will challenge WotC on the issue, and the American legal system moves too slowly for a quick resolution.

A merchant trying to metaphorically sell naughty word in an ice cream cone – waffle cones are available for an additional fee – can only succeed with fools once and others repeatedly if a monopoly corral holds customers. WotC has no monopoly on anything other than the narrow band of strict D&D intellectual property. Everything else is out of their reach. Let WotC act like a dragon crouched on its horde. So be it. I will say to RPG fans, paraphrasing Stephen King, “go then; there are other games than these.”

In this column I discussed why WotC’s ability to break and dominate the TT RPG cannot work, at least not by simply killing the OGL. But in the next column I discuss why WotC might have lost the battle; they will probably win the war.

This column is relatively optimistic. The next one won’t be.

References

Appelcline, S. (2011). Designers & Dragons. Wiltshire: Mongoose Publishing.

Barber, G. (2023, 1 13). Real talk about Wizards. From POC Gamer: Real Talk About Wizards - POCGamer

Biazzi, L. (2021, October 21). CriticalRole, xQc, summit1g, and Tfue among the highest earners on Twitch, according to leak. From Dot E-Sports: CriticalRole, xQc, summit1g, and Tfue among the highest earners on Twitch, according to leak

Bradford, A. (2017, August 15). D&D Beyond’s Launch Is Here. From D&D Beyond: The Adventure Begins

CNN Money. (September, 9, 1999). Hasbro gets the Wizard. From CNN Money: Hasbro gets the Wizard - Sep. 9, 1999

Codega, L. (2023, January 14). Cancelled D&D Beyond subscriptions forced Hasbro’s hand. From Gizmodo: Cancelled D&D Beyond Subscriptions Forced Hasbro’s Hand

Codega, L. (2023, January 5). Dungeons & Dragons’ New License Tightens Its Grip on Competition. From Gizmodo: Dungeons & Dragons’ New License Tightens Its Grip on Competition

Codega, L. (2023, January 13). Wizards of the Coast Breaks Its Silence on Dungeons and Dragons’ Open Game License. From Gizmodo: Wizards of the Coast Breaks Their Silence on the Dungeons & Dragons OGL

Cornell Law. (2021, December). Stare decisis. From Cornell Law: stare decisis

Curtis, M., Quiring, K., Theofilou, B., & Björnsjö, A. (2021, June). Reimagined consumers will abandon brands that don’t support their new values—and pay more to those that do. From Accenture.

Doctorow, C. (2023, January 11). Good riddance to the Open Gaming License. From Mostly signs some portents:
Dohm-Sanchez, J. (2022, December 8). Hasbro ‘Fireside Chat’ breaksdown Magic: the Gathering. From ICV2.Com: Hasbro 'Fireside Chat' Breaks Down 'Magic: The Gathering' Brand

Dungeon Craft. (2023, January 16). How to Win the Battle for Open D&D (Ep. 301). From Dungeon Craft:
Eagle, L. (2023, January 14). Dungeons & Dragons Rolls a 1 on New License (OGL 1.1) ft. Matt Colville. From Legal Eagle:
Greenebaum, D. B. (2016, May 9). Copyright law does not protect the structure and game play of card games. From Lexology: Lexology Search

Hall, C. (2021, December 2021). Critical Role animated series will premiere earlier than expected. From Polygon: Critical Role animated series will premiere earlier than expected

Hall, C. (2022, December 8). Hasbro strongly refutes claims it is ‘destroying’ Magic: The Gathering. From Polygon: Hasbro strongly refutes claims it is ‘destroying’ Magic: The Gathering

ICv2. (2018, June 18). ‘Critical Role’ goes solo. From ICv2.Com: 'Critical Role' Goes Solo

Irorita, F. C. (2023, January 4). WOTC cancels at least five video game projects. From Clutch Points: WOTC cancels at least five video game projects

Moltz, B. (2013, May 27). 7 ways “yes people” can destroy your business. From American Express: 7 Ways "Yes People" Can Destroy Your Business

Monica, P. R. (2022, November 23). Hasbro CEO optimistic about holidays even though stock is under pressure. From CNN Business: https://www.cnn.com/2022/11/23/investing/hasbro-ceo-chris-cocks-toys-holidays/index.html

Niose, D. (2011, March 11). Why corporations are psychotic. From Psychology Today: Why Corporations Are Psychotic

Paizo. (2023, January 13). Paizo Announces System-Neutral Open RPG License. From Paizo: paizo.com - Community / Paizo Blog

Paramount Pictures. (2022, July 21). Dungeons & Dragons: Honor Among Thieves | Official Trailer (2023 Movie). From Paramount Pictures:
Roll For Combat. (2023, January 11). One of the Architects of the Original OGL, Ryan Dancey, Discusses Its Creation. From Roll For Combat: One of the Architects of the Original OGL, Ryan Dancey, Discusses Its Creation | Roll For Combat

Standford Library. (2019, October). Copyright law changes that may affect you. From Standford Library: Copyright Law Changes That May Affect You

Stevens, L. (2009, July 9). The History of Paizo. From Paizo: paizo.com - Forums / PaizoCon: General Discussion: The History of Paizo

The Foundry. (2023, January 12). The Foundry. From https://foundryvtt.com

US Supreme Court. (1879). Baker v. Selden, 101 US 99. From Justia US Supreme Court: Baker v. Selden, 101 U.S. 99 (1879)

Whitten, S. (2022, January 5). Hasbro taps Dungeons and Dragons lead Chris Cocks as new CEO. From CNBC: Hasbro taps Dungeons and Dragons lead Chris Cocks as new CEO

Wizards of the Coast. (2003, June 4). Open gaming license, Version 1.0a. From Wizards of the Coast: Wizards of the Coast
 

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Clint_L

Hero
Great read! One factual note: "...Critical Role, among others. Possibly relevant here is that the series initially used the Pathfinder rules system even if it now uses D&D 5th edition rules mechanics." This claim is not strictly correct. The home game that Critical Role grew out of used Pathfinder, but the Critical Role series always used D&D5e, right from episode 1.
 

Texas in August Studio

Texas in August Studio
Publisher
Great read! One factual note: "...Critical Role, among others. Possibly relevant here is that the series initially used the Pathfinder rules system even if it now uses D&D 5th edition rules mechanics." This claim is not strictly correct. The home game that Critical Role grew out of used Pathfinder, but the Critical Role series always used D&D5e, right from episode 1.
Duly noted. Thank you.
 

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