WotC Talks OGL... Again! Draft Coming Jan 20th With Feedback Survey; v1 De-Auth Still On

Following last week's partial walk-back on the upcoming Open Game Licence terms, WotC has posted another update about the way forward.

The new update begins with another apology and a promise to be more transparent. To that end, WotC proposes to release the draft of the new OGL this week, with a two-week survey feedback period following it.

WotC Walks Back Some OGL Changes, But Not All

Wizards of the Coast has finally made a statement regarding the OGL. The statement says that the leaked version was a draft designed to solicit feedback and that they are walking back some problematic elements, but don't address others--most notably that the current OGL v1.0a is still being...

www.enworld.org

They also list a number of points of clarity --

• Videos, accessories, VTT content, DMs Guild will not be affected by the new license, none of which is related to the OGL
• The royalties and ownership rights clauses are, as previously noted, going away

OGL v1 Still Being 'De-Authorized'
However, OGL v1.0a still looks like it's being de-authorized. As with the previous announcement, that specific term is carefully avoided, and like that announcement it states that previously published OGL v1 content will continue to be valid; however it notably doesn't mention that the OGL v1 can be used for content going forward, which is a de-authorization.

The phrase used is "Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a." -- as noted, this does not make any mention of future content. If you can't publish future content under OGL 1.0a, then it has been de-authorized. The architect of the OGL, Ryan Dancey, along with WotC itself at the time, clearly indicated that the license could not be revoked or de-authorized.

While the royalty and ownership clauses were, indeed, important to OGL content creators and publishers such as myself and many others, it is also very important not to let that overshadow the main goal: the OGL v1.0a.

Per Ryan Dancey in response this announcement: "They must not. They can only stop the bleeding by making a clear and simple statement that they cannot and will not deauthorize or revoke v1.0a".

Ryan Dancey -- Hasbro Cannot Deauthorize OGL

I reached out to the architect of the original Open Gaming License, former VP of Wizard of the Coast, Ryan Dancey, and asked his opinion about the current plan by WotC to 'deauthorize' the current OGL in favour of a new one. He responded as follows: Yeah my public opinion is that Hasbro does...

www.enworld.org

Amend At-Will
Also not mentioned is the leaked draft's ability to be amended at-will by WotC. An agreement which can be unilaterally changed in any way by one party is not an agreement, it's a blank cheque. They could simply add the royalties or ownership clauses back in at any time, or add even more onerous clauses.

All-in-all this is mainly just a rephrasing of last week's announcement addressing some of the tonal criticisms widely made about it. However, it will be interesting to see the new draft later this week. I would encourage people to take the feedback survey and clearly indicate that the OGL v1.0a must be left intact.

 

[jgbrowning]

I can't give legal advice to you or Expeditious Retreat Press, for a variety of reasons the most obvious of which is that I'm not licensed to do so either in my jurisdiction or in yours.

My apologies, that was not my intent. I was merely using my company as a placeholder for any company (other that WotC) who have produced OGC via the OGL.

joe b.

 

[jgbrowning]

The relevant general principles are:

* A gratuitously-made offer, whether made to a particular individual on a particular occasion or a standing offer to all the world (a la Carlill vs Carbolic Smoke Ball), can be withdrawn at any time;​

​

* An offer that is made pursuant to a binding contractual obligation cannot be withdrawn at will.​

WotC's offer to license part of its 5e SRD (ie all the parts that it has labelled OGC) pursuant to the OGL is a gratuitous offer. WotC can withdraw it at any time. It seems clear to me that they intend to do that, at least as per all their recent statements.

If X is a licensee of WotC pursuant to the OGL, then X is contractually bound to offer to license its OGC to all comers. So X is not in the same situation as WotC is, as X is not making a gratuitous offer.

So to be clear, yes, any 3PP can say "you can't use my copyrighted material that I released as OGC" because all such offers are gratuitously-made.

This seems very contrary to how OGC and the OGL have been understood for two decades. That once material was made OGC by the copyright holder of that material, it was permanently OGC from there on out.

joe b.

 

[pemerton]

My apologies, that was not my intent. I was merely using my company as a placeholder for any company (other that WotC) who have produced OGC via the OGL.

No worries - I'm just wanting to make it clear what I am and am not saying!

 

[Charlaquin]

But WotC is interested in budging.
They dropped the ownership clause, royalties, declaring income, and so much more. They've dropped almost everything. And the other side has dropped nothing and only added more demands.

Why is there any expectation that the “other side” should have to drop anything? WotC gave us a nice toy, said we could keep it forever (in fact, some only accepted it under that premise because they were suspicious WotC might take it back some day), and now they’re trying to it back anyway, and instead offering us a different toy that’s covered in rusty razor blades and barbed wire. And when we complained, they said “oh, that was just a prototype. The finished version won’t be rusty or have any barbed wire on it,” but refused to comment on whether or not it would still have razor blades that aren’t rusty, or whether people who don’t want the crappy new toy will still be able to play with the old one. And some people are actually sitting there unironically saying “come on, they promised to take off the barbed wire and the rust, and you haven’t been willing to compromise anything!” Yeah, no duh we haven’t compromised, we never asked for this horrible new toy in the first place! How’s this for a compromise: Let us keep playing with the old toy, like you promised and have been honoring for 20 years, and you can put whatever hazardous materials you want on the new toy.

 

[Aspirinsmurf]

Is it really a gratuitous grant though? Anyone granting OGC receives protection from anyone using their declared Product Identity under the OGL without an additional agreement, even when such use would have been permitted under fair use. I am not a lawyer, but this seems like a form of payment to me.

 

[pemerton]

So to be clear, yes, any 3PP can say "you can't use my copyrighted material that I released as OGC" because all such offers are gratuitously-made.

Not if they are obliged to make that offer pursuant to a contract.

For instance, I recently reviewed the legal text of Monte Cook's Arcana Unearthed. It includes the 3E SRD in its section 15 statement, and (as best I can tell) incudes material either copied from that SRD (and hence copyright WotC) or derivative from material that occurs in that SRD (and hence copyright Monte Cook but potentially infringing of WotC's copyright if published). Monte Cook is therefore relying on the contractual licence from WotC in order to publish his work without violating WotC's IP rights. In return, Monte Cook has promised to offer to all the world to license his own OGC (including the derivative material). That is not a gratuitous offer: it is contractually required.

Off the top of my head, I can think of two other publishers in a similar position to WotC in respect of its SRD: Mongoose (vis-a-vis Traveller) and Evil Hat (vis-a-vis Fate). There are probably others.

This seems very contrary to how OGC and the OGL have been understood for two decades. That once material was made OGC by the copyright holder of that material, it was permanently OGC from there on out.

This is a distinct question: what permissions and powers does a licensee enjoy pursuant to section 4, once a licensor who has the power to retract their offer does so. This depends on the interpretation of the phrase the Open Game Content, as that is the subject matter of the licence.

 

[Charlaquin]

This gives me a ray of hope. This is a better response. Drafting a license by polling is exactly what they should have done from the beginning.

Nah, what they should have done was leave the OGL as-is. But, if they want to create a new license to publish 1D&D under, sure, they may as well draft that by poll if that floats their boat.

 

[Staffan]

Larger companies and major brands starting to make D&D and RPG products and using their IP.

They don't care if smaller companies play in their sandbox. But as D&D becomes a bigger brand and a household name, with movies and a TV show, they're likely worried about other companies that are bigger than WotC playing with their toys. If the D&D TV show is a hit, they don't want Prime or Disney+ making a competing show and related game.

The SRD has rules in it. Some of those rules embody vague worldbuilding concepts, but I would argue that few of them rise to the point where you could have copyright on them – mostly some of the monsters that aren't drawn from mythology, like xorns. The SRD also generally doesn't provide physical descriptions of these monsters. The xorn, for example, have one bite and three claw attacks, is described with height and weight, and their All-round vision ability mentions "symmetrically placed eyes". But the SRD doesn't say they're vaguely conical beings with three symmetrically placed arms and three symmetrically placed legs, with a mouth at the top and that they're made of rock. That part is from the Monster Manual, and not open content.

And more importantly, the SRD doesn't have any actual characters or concrete worldbuilding (basically anything with names). It's all rules and vague concepts. So basically, anything a major entertainment corporation like Disney could get out of the SRD, they could probably build themselves, and likely better.

that is what I checked, unless there are more versions than I have access to

Also, if the flumph was not covered by the OGL to begin with, how did FGG manage to include it?

In the early 00s, Wizards were a lot more supportive of open gaming than they are now. They basically gave Necromancer Games a license to publish a whole bunch of monsters from older editions they didn't have any plans on making their own versions of. And since then, Necromancer and their successor Frog God have made versions of this for later editions.

I really want to know what some people think is in the SRD that Disney would have to use the OGL to create a fantasy movie or show with in order to compete with WotC/Hasbro stuff.

Well, those xorns are pretty hawt.

 

[Charlaquin]

Talk is cheap.

They've said they will defend it, but so far they've actively done nothing.
It feels like they're playing chicken with WotC, hoping they blink.

So far, WotC hasn't responded to the threats of lawsuits. Because Paizo is beneath their notice. It wasn't Paizo's threats that made them back down, but losing subscribers.

There’s nothing to be done yet, because no new license has yet been released. We have some leaked docs WotC is saying we’re drafts, and two posts on D&D Beyond saying what they intend to do with the new license. They’ve also been very cagey about whether or not they’re actually going to revoke the old license when the new one releases. The draft implied they would, the D&D Beyond posts send mixed signals. There’s literally nothing there to take action against. If, at the end of this open drafting process, they release the license and it still says the OGL 1.0a is no longer an authorized license, and someone tries to publish something under 1.0a anyway, and WotC uses them, then folks will start taking action to defend whoever WotC tries to sue. And if that happens, it won’t just be Paizo. WotC winning a case saying they can in fact revoke the OGL 1.0a, which was written using language from open-source software licensing, would set a precedent that could be disastrous for big tech, so you’d better believe they’d be getting involved.

 

[Charlaquin]

I kind of want a Wendy's RPG now

One exists. Critical Role did a one-shot of it… or almost did? I’m not sure, I just remember they got a lot of flak about that (potential?) one-shot and made a big public apology.