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.

 

[Charlaquin]

It's not unprecedented.
When Skylanders was a hit, lots of companies tried to make toy-game hybrids including Lego Dimensions but also Disney Infinities.

The bigger of a hit D&D becomes the more likely a major corp will try to dip into the RPG pool as an in-house product with full support rather than just cheaply licensing to a small RPG publisher.
It would be hard for D&D to compete with a Disney RPG with ads and hype on D+ and sold at Disneyland.

And you think they couldn’t do that without the OGL?

 

[jgbrowning]

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.

To use myself again only as an example, I thusly have OGC material released gratuitously under the 1.0a (a non-WotC, non-prior-any-other-3PP-OGC-derived stand-alone game) and material that is a contractually required offer (such as an adventure module based on the 3.5 SRD) under the 1.0a.

The claim is then that I could withdraw my offer at any time for the stand-alone game, but not withdraw my offer for the material derived from prior OGC material?

This too seems odd to me. It implies that those who source their self-owned-and-created non-OGC-derivative material into Open Game Content have created a different kind of Open Game Content that is not subject to all the same subsequent requirements that other types of Open Game Content have under the 1.0a license, although the 1.0a license makes no such distinctions in different provenance OGC.

joe b.

 

[Aspirinsmurf]

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.

I'm not sure if I follow. Can you explain? If anyone picks up on this offer, they voluntarily surrender the rights of fair use to the Contributor's trademarks and declared Product Identity in consideration, do they not?

7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

 

[Aldarc]

Less than a week ago, I said that this would possibly blow over quicker than some would imagine because consumers will look for reasons to forgive in order to feed their desire to consume. Regardless of how many people here may feel about the authenticity or intent of WotC's survey and its impending results, I think that we are seeing waves of people who are ready to forgive. And all this talk about the evils of big corporations, never again buying from WotC, not producing content for WotC again, or playing other non-D&D games will soon be forgotten.

 

[pemerton]

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.

I think you are running together the offer to enter into a contractual licence on the terms of the OGL and the grant of a licence on the terms of the OGL, which is the result of such an offer being accepted.

 

[Bagpuss]

Poor Kyle has been offered as a sacrifice to the masses and is going to be eaten alive. ;-;

His Twitter account is already private... smart man.

 

[Aspirinsmurf]

I think you are running together the offer to enter into a contractual licence on the terms of the OGL and the grant of a licence on the terms of the OGL, which is the result of such an offer being accepted.

I think I get where you’re going with that. But I could always license the same stuff, couldn’t I? Instead of accepting WotC’s initial offer, I can accept the contractually mandated offer from some website or pamphlet that has published the SRD in its entirety?

At least that’s supposed to be the viral nature of copyleft licenses like this. If some GPL codebase disappears (or is no longer offered on those terms), you can just yank the library out from some other distribution that includes it.

 

[pemerton]

To use myself again only as an example, I thusly have OGC material released gratuitously under the 1.0a (a non-WotC, non-prior-any-other-3PP-OGC-derived stand-alone game) and material that is a contractually required offer (such as an adventure module based on the 3.5 SRD) under the 1.0a.

The claim is then that I could withdraw my offer at any time for the stand-alone game, but not withdraw my offer for the material derived from prior OGC material?

Yes. Let's call them work A and work B. For work A, you are at the centre of the "web" of contracts that constitutes the OGC ecology for this stand-alone RPG. For work B, WotC is at the centre of the parallel web.

For work A, if you retract your offer, there is a strong (but in my view not definite) argument that licensees, to whom you licensed A while your offer was still on foot, retain a power to sub-license your OGC even when you retract your offer. There are some subtleties here that are (in my view) unresolved: does their licence extend only to OGC from A that they have used, or to all the OGC offered as part of A. I have a recent post or two in the PSA thread (eg #2140) which discuss this. Those same posts explain why I think this argument about retention of the power to sub-license is not definite.

This too seems odd to me. It implies that those who source their self-owned-and-created non-OGC-derivative material into Open Game Content have created a different kind of Open Game Content that is not subject to all the same subsequent requirements that other types of Open Game Content have under the 1.0a license, although the 1.0a license makes no such distinctions in different provenance OGC.

You are trying to read the OGL as a statute, that by force of law bestows a certain status on certain copyrighted works. But it's not. It's a private law instrument. It works by generating contractual permissions, powers and obligations. If no one has paid you to keep your offer on foot, you can retract it. This proposition is common ground on the PSA thread.

 

[pemerton]

I think I get where you’re going with that. But I could always license the same stuff, couldn’t I? Instead of accepting WotC’s initial offer, I can accept the contractually mandated offer from some website or pamphlet that has published the SRD in its entirety?

At least that’s supposed to be the viral nature of copyleft licenses like this. If some GPL codebase disappears (or is no longer offered on those terms), you can just yank the library out from some other distribution that includes it.

I agree that you are describing the viral function.

Whether the OGL achieves that is not definite in my view, although the better view is that it probably does. See my post 2140 in the PSA thread: OGL - Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

 

[Charlaquin]

I don't think they can give up on the de-authorization element without totally going back to the drawing board on their plans going forward. I say this not because of any sort of insight into how all the details would interact, but because that is the one giant, important element that they aren't going back on. The things they walked back on are apparently not that big of a deal--even royalties! The fact that they haven't gone back on this tells me it's a non-negotiable essential element of their plans.

All signs point to their plans being to bet big on their 1st party VTT. We know they’re working on one. We know they’ve been hiring a lot of people with experience in tech and video games. And, this move lines right up with that plan. If they’re betting big on a 1st party VTT, they don’t want to have to compete with the likes of Roll20, Foundry, and whatever else. If they’re going into the VTT market place, they want the advantage of being the only one you can play the most up-to-date version of the D&D rules on. But to do that, they need an updated ruleset that other VTTs aren’t allowed to use, hence 1D&D, published under a new license that doesn’t allow 3rd parties to release VTT rules for it.

It’s actually the exact same strategy they tried to use with 4e, only this time their primary audience is much more receptive to going digital, and their VTT plans probably won’t be upended by a tragic murder-suicide. But, they don’t want to risk a repeat of what happened with Pathfinder, where a 3rd party decides to just ignore the new license and republish the old rules under the OGL 1.0a. And, they want to keep riding the wave of 5e’s popularity by keeping 1D&D backwards-compatible, which means a competitor wouldn’t even have to stick with the previous iteration of the rules like Pathfinder did; they could probably reproduce 1D&D with stuff that’s in the 5.1 SRD. So, as far as WotC is concerned, OGL 1.0a has got to go.