The OGL was always, always, always a trap, and it's sad to see it snap shut. The time for Paizo and such to move on from it was with Pathfinder 2E, but they didn't, and now the depressing part happens.
The other shoe to drop is the actual play community. Critical Role is all but in-house already and probably won't be affected, but smaller creators trying to monetize their 5E content are going to start feeling the noose tighten.
> The original OGL granted “perpetual, worldwide, non-exclusive license” to the Open Game Content (commonly called the System Resource Document) and directed that licensees “may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.” But the updated OGL says that “this agreement is…an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.”
> The new document clarifies further in the “Warranties” section that “this agreement governs Your use of the Licensed Content and, unless otherwise stated in this agreement, any prior agreements between Us and You are no longer in force.”
The hinge of the trap in OGL 1.0a is the "any authorized version" part, here in its more full context:[1]
> 9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.
Hasbro has the money to make legal challenges to that prohibitive, and no other company in the space has remotely similar resources. Good luck, suckers!
Their "this is not specific personalised advice, consult your own lawyer" thoughts were:
1. The license does not specify revocable or irrevocable, but it would be likely a court would find it to be irrevocable because:
- other lanaguage in the license such as the perpetual term and the option to use later versions appears to anticipate it being non-revocable
- the zection on termination only provides for breach of contract and protects sublicenses of the terminated work from being terminated unless the sub licenses were also infringing. The fact that it provides some grounds for terminatioj but "we have a new license" isn't among them hurts their argument.
- There is mutual consideration and this is even spelled out in the contract as being consideration in terms of the derivative content being reciprocally licensed, plus the unspecified benefit to Wizards of having more complements to their product increasing its appeal. The licensee obviously gets the rights to use the covered content.
- The 23 year usage of OGL 1.0a may constitute reliance especially when combined with past clarifying public statements where Wizards official documents and then-active employees indicated it was intended to be non-revocable.
- Clauses in US law for copyright owners to terminate licenses require 35 yeara and do not affect sublicenses, so unlikely a court would assume a stricter unwritten standard of revocability than this
However, they also point out you can waive your rights to use content under 1.0a if you were to agree to 1.1, e.g. to get access to 6e content.
They also touch on the idea of if Wizards could use others OGL 1.0a licensed content under 1.1 which imposes lesser restrictions on wizards than 1.1. They're vaguer on this point, but imply probably not as its too much of a deviation from the previous license and raise the reliance part again
These “d&d” podcasts seem to basically be playing rules-light systems with a some d&d styling, I bet if WoTC tries to really enforce anything they’ll say “switched to dungeon world” and that’ll be the end of it. It would probably be a more accurate reflection of the play style anyway. (I mean d&d is great because most people aren’t, like, professional voice actors and improv pros, the structure that Critical Roll and their ilk don’t need is why us normal people might want the system in the first place!)
I’m mostly worried about the folks posting settings and adventures on drive through RPG, it seems like they have a ton more exposure. :(
> Hasbro has the money to make legal challenges to that prohibitive,
Legal costs do not necessarily scale by size and wealth of the litigant. I'm not a lawyer, but I've dealt with enough license disputes that I'd be lawyering up if I was in the D&D OGL business. This looks to be a pretty simple contract dispute about what paragraph 9 (Updating the License) actually says and if it is actually legal (it probably is). I'd first ask the lawyer if I should suspend selling and distributing, and then ask if it's worth litigating the OGL license change. Suspending the business will also dramatically reduce the cost of litigation because there's going to be minimal damages to argue (which takes a truckload of accountants and extra expensive lawyers to calculate).
Pathfinder 2E is clearly a derivative work of Pathfinder 1E which is a derivative work of 3.5. It's not clear that none of the content in 2E would cross the threshold of being both (a) copyrightable and (b) sufficiently unmodified from D&D 3E to be under scope. It's not clear how much of Paizo's decision to license 2E under OGL was as a CYA in case someone found that some of the content was derived from D&D 3E, and how much was for continued compatibility with the PF 1E ecosystem, but likely both concerns were considered
This is already having an effect on the community, as people like The Arcane Library (https://www.youtube.com/@TheArcaneLibrary) are shifting away from using/referencing the OGL despite having pre-prints of material using the OGL.
I also find it interesting that WotC/Hasbro have been silent so far (both regarding releasing the official OGL 1.1 or making a statement about the leak to correct any factually incorrect statements).
> I also find it interesting that WotC/Hasbro have been silent so far (both regarding releasing the official OGL 1.1 or making a statement about the leak to correct any factually incorrect statements).
Probably because they are trying to figure out damage control. this leak only happened on thursday.
I would expect a response during the week with them backpeddling a bit.
What's interesting(/blows my mind) though is that unsubstantiated rumours about the new OGL started going around weeks ago. This caused a massive amount of concern and outrage among the community, to the extend that WoTC actively moved up their communication timeline and responded with a post on DndBeyond containing more info about the new OGL (a far more reasonable version) to try and reassure the community and stop the fearmongering. That was all before this leak.
Yet despite all that they've suddenly come out with this draconian agreement which is worse than most of the rumours that had already caused a huge outrage.
WOTC seems to have filled a room full of rakes and banana peels and decided to sprint through it at full speed. This, D&D ONE, the M:tG 30 abysmal failure.
It wouldn't surprised me if they leaked it themselves to either see what the outcry would be, or so they can release a version that's not as bad as the leak and people are happier with it even though it's still terrible.
That's posted Dec 21. The OGL 1.1 leak happened on Jan 4th.
They mention that the OGL 1.1 will only apply to static (ePub/PDF) and printed media, and the revenue terms, but they don't mention the other OGL 1.1 changes that have been causing the current storm, such as:
1. revoking OGL 1.0a;
2. the 1.1 license giving WotC/Hasbro the irrevocable ability to use your content in any way they want to;
3. their ability to terminate your 1.1 license for any reason;
4. their ability to update the terms to the license with a 30 day notice.
I think this is interesting to software people because the OGL is clearly inspired by open source licenses, being mostly a permissive license but also borrowing the "or later" clause from GPL, which is herein being abused to try intimidate older license version users and secure additionally rights for Wizards themselves.
I suspect it won't succeed if it ever does end up in a courtroom, but it does raise some interesting questions about where the line is. e.g. GFDL 1.3's Wikipedia can convert from GFDL to Creative Commons clause is arguably a similar claim to the idea that Wizards can now use OGL 1.0 content royalty free on the surface.
After seeing what WotC did with the Android: Netrunner license (they pulled it just as the game became extremely popular), I’m not surprised they are doing the same thing to D&D.
Building on top of a WotC-owned IP seems like a bad idea, since they will likely change the license once your product stqrts to get big.
Strictly speaking, WotC didn't pull the A:NR license, they just declined to renew it when the six-year term was up. While we don't know the story, it seems a safe bet that the initial license was seen as a low-effort monetization of an idle property, which they didn't expect to become competition for the MtG cash cow. And while A:NR never became big enough to be a direct competitor (compared to Pokemon or Yu-Gi-Oh), I think they came to perceive minimal upside in subsidizing a successful LCG model, lest the market lose confidence in "luxury cardboard rectangles" as a speculative asset.
Netrunner has continued as a fairly successful non-profit fan cooperative [0] since, but remains in a very legally shaky position (they've been working on cutting ties with the original IP as much as possible, but if Hasbro wanted to set an example, it might not matter).
I tend to think that the explosion of compatible d20 system RPGs in the 2000s was a good thing.
The 5e OGL also seems to have been good for gaming, and for D&D as well. D&D is certainly bigger than ever.
As I see it, D&D, Pathfinder, Green Ronin, etc. are all on team RPG; Wizards would do best to focus on expanding the hobby and making players happy, largely by producing high-quality D&D tabletop games and associated products, and supporting high-quality D&D-derived video games, movies, TV, novels, comics, etc..
> The original OGL granted “perpetual, worldwide, non-exclusive license” to the Open Game Content (commonly called the System Resource Document) and directed that licensees “may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.” But the updated OGL says that “this agreement is…an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.”
I wasn't under the impression that such an authorization could be revoked... Specifically, if someone is living in a cave with OGL v1.0(a), and churning out works according to its terms, then it isn't their responsibility to check every day if the copy they are using has suddenly become not-authorized.
Nor can Hasbro send them an official notification that they have withdrawn authorization, because they have no way to find said person. And any reseller need not reveal the identity of the cave dweller creator who is still using OGL 1.0.
Perpetual doesn't imply anything about revocability (thats irrevocable). The law doesn't operate in this stupid vacuum like software engineers believe it does.
That's true, but it also adheres closely to ideas like "common sense". It's hard to imagine how to interpret the use of "perpetual" in the original OGL that doesn't imply "irrevocable"; certainly nothing else in a blanket license like this is going to be time-limited.
I dunno, but I'd want to see someone cite some case law where a "perpetual" license was allowed to be revoked like this. It certainly smells off to me.
Obviously WotC isn't obligated to license any new content under an older OGL, it can use whatever terms it wants. But as for existing OGL content, I think they're on some very "innovative" ground here, legally.
But from a logistical point of view, is it possible to revoke a license from a person that you don't know the name and address of, and have no way to find it?
I think you'd be hard pressed to tell a court that you want to sue an unnamed person for following the terms of a license that you granted to them, then revoked but haven't told them you revoked, and that you don't know their name or address...
That's my impression, also. It seems to me Hasbro can refuse to license anything new under the 1.0 agreement but what's out there is out there and they can't change that. They'll just force their competition not to use the new material.
I grew up on D&D in the 80s, but I will steer my kids away from it over these kind of shenanigans. The publisher is demonstrably untrustworthy of its fans.
Does it make any sense for Wizbro to fight Paizo, or Green Ronin, or streamers, or Youtube, or roll20, or software based on the OGL? Is there any evidence at all that they are harming or cannibalizing D&D? Youtube/streamers are basically the gateway drug to TTRPGs, and roll20 allowed us all to keep (or start!) playing D&D during a global pandemic! Pathfinder is a thing, but D&D is still bigger than ever. (Though I wonder if Starfinder helped to provide incentive for reviving Spelljammer? I'm happy that both exist actually.)
Maybe it's easier to hire lawyers than to focus on making more D&D products, video games, and licensed media that are actually good.
In any case, it usually isn't a good idea to fight your fans/customers, because they are the lifeblood of your game (and company), as well as its biggest advocates.
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The other shoe to drop is the actual play community. Critical Role is all but in-house already and probably won't be affected, but smaller creators trying to monetize their 5E content are going to start feeling the noose tighten.
> The original OGL granted “perpetual, worldwide, non-exclusive license” to the Open Game Content (commonly called the System Resource Document) and directed that licensees “may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.” But the updated OGL says that “this agreement is…an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.”
> The new document clarifies further in the “Warranties” section that “this agreement governs Your use of the Licensed Content and, unless otherwise stated in this agreement, any prior agreements between Us and You are no longer in force.”
The hinge of the trap in OGL 1.0a is the "any authorized version" part, here in its more full context:[1]
> 9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.
Hasbro has the money to make legal challenges to that prohibitive, and no other company in the space has remotely similar resources. Good luck, suckers!
1: http://www.opengamingfoundation.org/ogl.html
Their "this is not specific personalised advice, consult your own lawyer" thoughts were:
1. The license does not specify revocable or irrevocable, but it would be likely a court would find it to be irrevocable because:
- other lanaguage in the license such as the perpetual term and the option to use later versions appears to anticipate it being non-revocable
- the zection on termination only provides for breach of contract and protects sublicenses of the terminated work from being terminated unless the sub licenses were also infringing. The fact that it provides some grounds for terminatioj but "we have a new license" isn't among them hurts their argument.
- There is mutual consideration and this is even spelled out in the contract as being consideration in terms of the derivative content being reciprocally licensed, plus the unspecified benefit to Wizards of having more complements to their product increasing its appeal. The licensee obviously gets the rights to use the covered content.
- The 23 year usage of OGL 1.0a may constitute reliance especially when combined with past clarifying public statements where Wizards official documents and then-active employees indicated it was intended to be non-revocable.
- Clauses in US law for copyright owners to terminate licenses require 35 yeara and do not affect sublicenses, so unlikely a court would assume a stricter unwritten standard of revocability than this
However, they also point out you can waive your rights to use content under 1.0a if you were to agree to 1.1, e.g. to get access to 6e content.
They also touch on the idea of if Wizards could use others OGL 1.0a licensed content under 1.1 which imposes lesser restrictions on wizards than 1.1. They're vaguer on this point, but imply probably not as its too much of a deviation from the previous license and raise the reliance part again
https://medium.com/@MyLawyerFriend/lets-take-a-minute-to-tal...
I’m mostly worried about the folks posting settings and adventures on drive through RPG, it seems like they have a ton more exposure. :(
Legal costs do not necessarily scale by size and wealth of the litigant. I'm not a lawyer, but I've dealt with enough license disputes that I'd be lawyering up if I was in the D&D OGL business. This looks to be a pretty simple contract dispute about what paragraph 9 (Updating the License) actually says and if it is actually legal (it probably is). I'd first ask the lawyer if I should suspend selling and distributing, and then ask if it's worth litigating the OGL license change. Suspending the business will also dramatically reduce the cost of litigation because there's going to be minimal damages to argue (which takes a truckload of accountants and extra expensive lawyers to calculate).
I also find it interesting that WotC/Hasbro have been silent so far (both regarding releasing the official OGL 1.1 or making a statement about the leak to correct any factually incorrect statements).
Probably because they are trying to figure out damage control. this leak only happened on thursday.
I would expect a response during the week with them backpeddling a bit.
Yet despite all that they've suddenly come out with this draconian agreement which is worse than most of the rumours that had already caused a huge outrage.
But I fear like MTG moved to maximize squeezing out money from players on the risk of long term losses D&D will now move there, too.
So I kinda expects this to only be the start of wtf. this isn't what we want moments.
They mention that the OGL 1.1 will only apply to static (ePub/PDF) and printed media, and the revenue terms, but they don't mention the other OGL 1.1 changes that have been causing the current storm, such as:
1. revoking OGL 1.0a;
2. the 1.1 license giving WotC/Hasbro the irrevocable ability to use your content in any way they want to;
3. their ability to terminate your 1.1 license for any reason;
4. their ability to update the terms to the license with a 30 day notice.
I suspect it won't succeed if it ever does end up in a courtroom, but it does raise some interesting questions about where the line is. e.g. GFDL 1.3's Wikipedia can convert from GFDL to Creative Commons clause is arguably a similar claim to the idea that Wizards can now use OGL 1.0 content royalty free on the surface.
Building on top of a WotC-owned IP seems like a bad idea, since they will likely change the license once your product stqrts to get big.
Netrunner has continued as a fairly successful non-profit fan cooperative [0] since, but remains in a very legally shaky position (they've been working on cutting ties with the original IP as much as possible, but if Hasbro wanted to set an example, it might not matter).
[0] https://nullsignal.games/
What an epic bait and switch
Deleted Comment
The 5e OGL also seems to have been good for gaming, and for D&D as well. D&D is certainly bigger than ever.
As I see it, D&D, Pathfinder, Green Ronin, etc. are all on team RPG; Wizards would do best to focus on expanding the hobby and making players happy, largely by producing high-quality D&D tabletop games and associated products, and supporting high-quality D&D-derived video games, movies, TV, novels, comics, etc..
I wasn't under the impression that such an authorization could be revoked... Specifically, if someone is living in a cave with OGL v1.0(a), and churning out works according to its terms, then it isn't their responsibility to check every day if the copy they are using has suddenly become not-authorized.
Nor can Hasbro send them an official notification that they have withdrawn authorization, because they have no way to find said person. And any reseller need not reveal the identity of the cave dweller creator who is still using OGL 1.0.
I dunno, but I'd want to see someone cite some case law where a "perpetual" license was allowed to be revoked like this. It certainly smells off to me.
Obviously WotC isn't obligated to license any new content under an older OGL, it can use whatever terms it wants. But as for existing OGL content, I think they're on some very "innovative" ground here, legally.
I think you'd be hard pressed to tell a court that you want to sue an unnamed person for following the terms of a license that you granted to them, then revoked but haven't told them you revoked, and that you don't know their name or address...
Maybe it's easier to hire lawyers than to focus on making more D&D products, video games, and licensed media that are actually good.
In any case, it usually isn't a good idea to fight your fans/customers, because they are the lifeblood of your game (and company), as well as its biggest advocates.