This is an article which grew in the telling. After I wrapped up my previous article on Wizards’ absurd unforced error concerning the OGL, I expected to wrap up the series with one more piece, analysing the proposed texts of OGL 1.1 and 1.2 and discussing Wizards’ later total capitulation.
However, analysing OGL 1.1 turned out to take much longer than I expected. There’s some pretty profound issues with it, some of which only became apparent when I started the exercise of reading over it. It’s weirdly structured – bifurcated as it is into two licences. What’s more in the process of looking at it, I realised it appeared to be missing an important thing which I had really expected to be there, and whose absence makes some of the eyebrow-raising provisions of OGL 1.1 make a little more sense. More on that later.
All of this meant that my thoughts on it ran so long that I realised that this would need to be its own article – in my third article I’ll cover OGL 1.2, the compromise version Wizards wheeled out in the wake of the leaks and started a process of accepting feedback on, and then talk about their eventual capitulation.
To summarise the story so far: over 20 years ago, Wizards of the Coast put out OGL 1.0a, establishing the current era of third party D&D support. Perhaps by the usual standards of IP licences and open source licences it doesn’t offer that much – but it does represent a significant thaw compared to the harsh approach taken by TSR. All is well in the land.
Then, towards the start of this year, leaks emerge of a new OGL 1.1 – a document apparently being circulated by Wizards among third party publishers. And the howling and screaming begins…
As well as the caveats I offered at the start of last article, I ought to add a new one here, which is that Wizards did at the end of the day rule out bringing in OGL 1.1 altogether – so none of the stuff I outline here will actually come to pass. Nonetheless, at points in my analysis I may add the odd stray phrase along the lines of “under this licence, X is no longer true” or similar – just because it’d be awkward to say “If this licence had been adopted, which is unlikely to happen any time soon because Wizards have abandoned attempts to extinguish OGL 1.0a” over and over again.
Why Look At OGL 1.1?
Some people – primarily Wizards themselves – would probably be happier if we ignored OGL 1.1 altogether, and certainly there’s some caveats to be noted here. The text we have of it is a leak, and whilst Wizards have confirmed it to be genuine, different stories are circulating as to how final it is. Some publishers who received advanced copies have claimed that it was circulated with a strong presumption that people would sign it as it currently stands; Wizards themselves have said that this isn’t the case, that it was a version circulated for discussion and not reflective of the final form.
Short of more leaks happening (or direct disclosure of correspondence in a way which feels unlikely), it’s going to be hard for anyone on the outside of those discussions to make much of a call on who is telling the truth. People are insisting that the facts that dates and a spot for signature were apparently included in the version circulated mean that this must be a final version – but I can equally see those things being there as placeholders in a draft version.
Moreover, the version we have is missing some features; it’s been carefully sanitised to try and avoid anything which might identify a leaker getting out there. That means we don’t have whatever covering letter came with this; for that matter, there doesn’t to my eyes seem to be a “sign here please” section in it. Perhaps the original version has “DRAFT” in big, friendly letters as a watermark on each page; perhaps the original version came with a covering letter which said “Sign this, fuckos, the new era of OGL 1.1 is here and you will all bow down and kiss the Wizards’ orbs” – we just don’t know.
However, supposing we give Wizards maximum benefit of the doubt in this situation – sure, that’s something which many people are finding hard to do right now, but indulge me for a second. Let’s assume that this is, merely, a draft circulated for feedback, and that Wizards were, as Kyle Brink has said, already planning to make extensive revisions to it at the time the leak happened and the controversy erupted.
Even if all that’s the case, OGL 1.1. remains extremely relevant for a simple reason: it was their opening bargaining position. As such, it reflects the maximal version of Wizards’ wish list – and it’s in that light that it remains intensely relevant, because it gives us an insight into what Wizards hoped they might be able to get, in a perfect world where everything went their way and nobody had any major objections.
Is it more than they expected to get? Probably. But negotiations like this often work on the principle of “if you don’t ask, you don’t get” – you open by asking for more than you expect to get, in the hope that the other party’s counter-proposals ends up within the realm of what you’d be willing to accept. Nonetheless, we can assume that everything that’s there in OGL 1.1 is something which Wizards would have been happy to get – because if they didn’t want it, they would never have asked for it in the first place.
Who, exactly, were Wizards trying to negotiate this with? Well, we don’t have a list, but we know some publishers were involved, and we know that Kickstarter were specifically involved because they have admitted as such (of which more later).
My hunch here – and this is speculation, so don’t put too much weight on it – is that despite all appearances to the contrary, Wizards had remembered some of the lessons of the GSL and the transition from 3.X to 4E. That ran into issues where when publishers got sight of the GSL, many of them went “ew, no” and didn’t bother with it – so they didn’t have a critical mass of third party publishers making the switch from OGL 1.0a products supporting 3.X to GSL products supporting 4E.
This time, they wanted to avoid that by seeing if they could convince a subset of existing publishers to go along with OGL 1.1 – because if they could convince enough of them to do it they could present it as a fait accompli to the rest of the industry. Sure, they had the stick of simply deauthorising 1.0a (or at least they believed they did), but the fact that they were checking in with publishers before hand suggests to me that they also wanted to offer a sufficient carrot to get people to accept OGL 1.1. If the industry as a whole went “No thanks” – as basically happened – then obviously OGL 1.1 couldn’t fly, but if a chunk of the industry could be cajoled to play ball (perhaps with some additional inducements, like promotion via Wizards’ channels or the like) then anyone refusing to change over to the new licence would look like churlish people refusing to give their customers the products they want when other publishers were happy to play along.
That, at least, may have been the theory – as we’ve seen, the practice has ended up somewhat different.
As far as additional inducement for publishers to go along with Wizards goes, I note that one of the claims going around is that this was circulated with contracts to sign – but the process of signing up to the commercial version of OGL 1.1 doesn’t require you to sign a contract, it requires you to go through an online registration process. Wizards’ commentary on OGL 1.1 talks about the possibility of publishers reaching a “custom direct deal” with Wizards. Does this mean that the contracts offered for signature which have been mentioned were not OGL 1.1, but custom direct deals with Wizards giving bespoke (and favourable) terms? We don’t know – but it certainly sounds possible. (But then again, if they were being offered a custom direct deal, how would that help encourage the uptake of OGL 1.1? Perhaps the idea was to bump people into signing these bespoke deals by showing them what they’d have to rely on if they didn’t accept the bespoke deal. There’s so much about this which would be clarified with just a few more leaks or clarificatory disclosures.)
Another thing to note is that the leaked OGL 1.1 is not formatted as nicely as it could be; in particular, it’s fairly obvious that the actual legal text of the licence was intermingled with a lot of commentary which provided clarification an explanation of Wizards’ thinking, so a little care is needed when reading along to keep those disentangled. Indeed, contextually it seems like previously there was a set of hyperlinks accompanying the licence text which the leaked version has stripped entirely. Keeping that in mind, let’s get started looking through the PDF.
Introductory Commentary
We don’t get any licence text at first – the document leads off with an introduction section which provides some context. Here, Wizards outline their intentions with the update:
A lot has changed over the last half century, including the rise of the internet, apps, Web 3, and even virtual TTRPGs. Now in 2023, we are updating the Open Game License to address some of these new realities and fix some of the loopholes and contradictions that made their way into the Open Game License during the time since its first release. […] This revised license is intended to protect the D&D brand by reducing creator confusion, preventing bad actors from tarnishing it, and preventing large businesses from profiting off it without proper checks and balances.
There’s a little rhetorical ducking and weaving here – yes, all of those things are new in the context of the last 50 years, but the OGL isn’t 50 years old, it’s closer to 20. Computers, the Internet, and early stabs at online platforms for playing tabletop RPGs were absolutely a thing back when the OGL was originally published; “apps” is just a buzzwordy way of saying “a computer program which runs on your phone” and “Web 3” is a buzzwordy way of saying “a grift built on pointless horseshit”. More generally, CRPGs influenced by – or outright taking ideas from – Dungeons & Dragons are about as old as D&D itself is, which the old mainframe-era Dungeon program having come out in 1975.
So it’s simply not true to say that the RPG-adjacent uses of computers are a brand-new, hitherto-unimagined, totally unforeseeable turn of events resulting from a black swan event that happened at some point after the OGL originally came out. Maybe it would have been difficult to foresee some of the interactions between computing, the Internet, and tabletop RPGs that have arisen back in the early 2000s, but it would have been far from impossible, and some of them were already happening.
I can, at least, see the point of their three main mission goals for the new licence – protecting the band by avoiding creator confusion, preventing bad actors from tarnishing the brand’s reputation, and stopping large businesses profiting off the brand without proper checks and balances all seem like good ideas both for Wizards and for the third parties who want to use the brand in good faith.
The problem is that revising the OGL the way they’ve tried to do here is absolutely the wrong way to accomplish any of those goals.
I can’t understate how bizarre this all looks to me from an intellectual property perspective. From the perspective of someone who has studied this area of law, the brand is the trademark “Dungeons & Dragons” and associated logos and trade dress, because that’s the thing which actually provides the function of a brand in law – which is as an indication of the origin of a product. It is generally understood that if someone is using a trademark (whether a registered one or a mark which they have developed goodwill in through use), that’s indicating that the owner of the trademark either created the product in question or endorses it. If you want to protect your brand, trademark law is the default line of defence there.
And the thing is, the OGL 1.0a gave no access to the brand whatsoever. None. It gave access to some copyrighted material, but by adopting it you actively consented to the Product Identity provisions which precluded you from using the term Dungeons & Dragons or indicating compatibility with it. It meant you gave up the right to do things which trademark law would otherwise allow you to do, and that being the case it actually provided an extra line of defence against misuse of the brand to begin with. Wizards have been quick to raise the spectre of D&D NFTs as an abuse they wanted to stop, but if someone tried to do a D&D NFT without their permission they already had all the tools they needed to stop that; they couldn’t stop someone doing Generic Fantasy NFTs or Polyhedral Dice NFTs or whatever the hell a D&D NFT is supposed to be, but should have never expected to be able to do that anyway – they can’t stop people from making NFT of IP the people minting the NFT own anyway.
It’s not unknown for people to get confused beteen the OGL 1.0a on one hand, which gives no access to the brands covered by Product Identity, and the d20 STL or the DM Vault terms and conditions, which give more extensive access to IP in return for more control on the part of Wizards. It absolutely blows my mind to see Wizards conflating them to this extent, because that is what they are doing – the d20 STL and DM Vault terms and conditions are the things which give people access to brand identity stuff, not the OGL.
A serious question: does anyone currently working at Wizards understand that the OGL 1.0a and the d20 STL (or the DM Vault terms and conditions) are two different things? It seems unlikely, but if they do understand this, a follow-up question: do they actually understand that the OGL gives absolutely no access to Wizards trademarks whatsoever, precisely because of the way the Product Identity provisions work? Do they comprehend that there was always, for as long as the OGL was a thing, mechanisms by which Wizards could exercise tighter control over the use of their actual brands? Do they have the slightest awareness that if you want to protect the brand, you tighten up the provisions that protect the brand, not the legal mechanism which has nothing to do with the brand, and explicitly prevents people using it from getting access to the brand?
I mean, if they don’t understand all of that, they are a bunch of clumsy fucking stumblebums who have no comprehension of what they were trying to do here, or what they were trying to do with the corresponding features of OGL 1.2, or what they’re trying to accomplish now that they’ve gone back to the drawing board to look for other ways to protect the brand. If they do even have a faint understanding of that, then these given reasons for revising the licence are bullshit, and were bullshit when they were trying to sell us on OGL 1.2, and there’s every chance they remain bullshit to this day.
I am sure that Wizards are grumpy about people associating their brands with hate literature – they’re suing over nu-TSR’s version of Star Frontiers over this, Star Frontiers being an IP which was never subject to the OGL to begin with – and to the extent they are pushing back on that, that’s a noble goal. But it’s not a goal which killing off OGL 1.0a would have assisted; nor would doing so make it easier to slap down anyone minting D&D NFTs or stopping Facebook from making a D&D Metaverse. Shutting down OGL 1.0a was the wrong solution for the stated problem.
Creating a new OGL and killing OGL 1.0a would also, in the short term at least, not necessarily serve the goal of avoiding creator confusion – because creators who have had two decades to get used to OGL 1.0a would need to take the time to understand a brand new licence. In the long term, it only reduces confusion if the new licence is simpler than the old one; as it turns out, the new OGL comes in two flavours, OGL: Commercial and OGL: Non-Commercial, which have extensively overlapping but somewhat different terms, so right there on the face of it you have immediate scope for potential confusion, so that’s sabotaging the stated goals right there.
Actually, to be fair the OGL 1.1 did clear up one point of confusion: it did make it absolutely clear to everyone concerned that Wizards is no friend to third party publishers, and that third party publishers should not extend the slightest bit of trust towards Wizards of the Coast. The misconception that Wizards of the Coast was worthy of trust was a dangerous point of confusion, and it’s better for everyone that we’ve moved past that now.
Further information on Wizards’ motives in updating to OGL 1.1 and dividing it into two flavours were provided in the FAQ which precedes the text of the licence proper:
Why is Wizards of the Coast updating to OGL 1.1 and subdividing it into Commercial and Non-Commercial terms? A lot has changed since the old OGL was launched, and that means the old license has some unintended applications we need to fix. For example, when we released OGL 1.0a, YouTube, apps, blockchain, crowdfunding, and other now every-day technologies and distribution channels didn’t really exist in the way they do today. OGL wasn’t intended to fund major competitors and it wasn’t intended to allow people to make D&D apps, videos, or anything other than printed (or printable) materials for use while gaming. We are updating the OGL in part to make that very clear.
Additionally, over time the old OGL incorporated some confusing and even contradictory provisions. It was also written in fairly dense legal language. So while we’re updating it to take into account developments since it was last revised, and breaking out commercial use into a separate category, we’re also simplifying the language and streamlining the provisions so that it’s easier to understand and comply with. For even more clarity, we’ve included comments that should help illustrate what the provisions do, which you can access by clicking the relevant comment links in the license documents.
This is consistent with the above, but is also kind of horseshit. Sure, crowdfunding, YouTube, and the blockchain weren’t things when OGL 1.0a was published (again, “apps” are computer programs, computer programs absolutely did exist at the time OGL 1.0a came out), but the mention of crowdfunding here feels like a non-sequitur – it wasn’t mentioned earlier, and it isn’t apparent how the use of crowdfunding causes the cited problems for the brand.
In addition, whilst the OGL 1.0a may have originally been written with printed/printable materials for gaming in mind, since at least as far back as 2004 Wizards expressed general happiness with people using it for other purposes. That infamous 2004 FAQ provided specific pointers on how you could distribute computer software using the OGL. The idea that Wizards never intended for people to use the OGL to put out software stuff – like apps and virtual tabletops – flies in the face of it; in 2004 they seemed to be 100% happy for you to do that, provided clear advice to make it easier for you to do that in a compliant fashion, and let that situation go on for well over a decade after that FAQ came out.
It also seems to me that the requirement to include copies of the OGL in stuff you distribute under it already provides a speed bump to using it to put out videos… and it isn’t apparent to me what the problem is if someone puts out a video using the OGL 1.0a and, I dunno, dumps the licence into a text scroll at the end and otherwise abides by its provisions; this doesn’t seem to make problems for Wizards from my perspective.
Lastly, it’s weird to me that they say “over time the old OGL incorporated some confusing and even contradictory provisions”. This phrasing implies that OGL 1.0a evolved and changed over time, and it really didn’t. I’m also not sure what provisions of it they claim are contradictory – and the fact that they came out and directly said that its provisions are actually contradictory is absolutely wild to me, because that is in effect an admission that the OGL 1.0a was in at least some aspects unenforceable (because if a contract has mutually contradictory provisions, then obviously you can’t enforce both provisions at once, and equally obviously if you try to enforce the one provision the one which contradicts it provides a fairly significant rebuttal to it).
I strongly suspect that at least the explanatory comments and FAQ written to accompany OGL 1.1 was neither written by someone with legal training nor were reviewed by someone with that training, because I can’t believe a competent attorney would be comfortable with that admission; equally, a competent attorney would want to avoid the impression that the terms of the OGL 1.0a had somehow changed over time to incorporate these confusing/contradictory provisions. Indeed, it really feels like at least some of the people contributing to OGL 1.1 and its explanatory text outright don’t understand OGL 1.0a; I can imagine how someone who didn’t actually understand the legal language of 1.0a might believe it has contradictory provisions, I am less sure of where the contradictions are supposed to be myself because I can parse the legal text and interpret it in a good-faith way which isn’t contradictory.
The stuff about 1.0a’s supposedly confusion provisions is all offered in the service of justifying the fairly comprehensive root-and-branch rewrite of the entire thing in terms of simplifying the language, and in principle I think the idea of using clear and easily understood language instead of dense legal language – provided that the language is precise enough to accomplish the intended effect – is a good one. In practice, I think it’s a good idea when you are writing the first version of a licence and working with a clean slate. If you have an existing licence text and you are revising it, I think the thing to do for the purposes of clarity is to stick to the old language and structure as much as possible – because that’s the language people have become used to working with, and because if you totally rewrite everything it becomes harder for people to compare and contrast the old version with the new and figure out what’s changed.
If I were feeling hostile towards Wizards, I would say that the total rewrite is essentially a cover for scrapping 1.0a entirely and replacing it with a licence which means and accomplishes something entirely different, and the “clarity” thing is an after-the-fact explanation. If I wanted to help Wizards save face, I’d suggest that someone in their organisational structure got overexcited about using plain language without realising that legal language is often the way it is for fairly precise, technical reasons, and then went too far with it. If I wanted to help both Wizards and everyone in their structure save face, I would not be writing about this situation whatsoever because either Wizards have been acting despicably or people within their structure have committed massive unforced errors or both; this is not a place of honour, no great deed is commemorated here.
Let’s skip over the rest of that FAQ for the time being and jump back to it as and when we discuss the relevant provisions of the licences. The OGL: Non-Commercial and OGL: Commercial have largely the same structure, so I am going to proceed by going through it section by section, first discussing the relevant section in the context of the OGL: Non-Commercial, and then addressing the OGL: Commercial version – or brushing past that if the sections are not meaningfully different.
Licence Preamble
Both flavours of OGL 1.1 starts with a preamble explaining that any relevant use (non-commercial for OGL: Non-Commercial, commercial for OGL: Commercial) of Licensed Content (defined later) is subject to the agreement, and that by making use of Licensed Content you agree to its terms. (By comparison, you opted into the OGL 1.0a by making use of the Open Game Content people contributed to it – note the different language, it’s important.)
This part also specifies that by taking up OGL 1.1 you consent to jurisdiction in Washington State for any disputes between you and Wizards, and that such cases will be ruled on by a judge, not a jury; part G under the “Miscellaneous” section at the end of both versions of 1.1 underlines that, and also requires you to waive the right to take part in a class action suit or similar. To me, the jurisdictional stuff isn’t that contentious – it was always kind of weird that OGL 1.0a didn’t clarify that, and I think providing certainty of which jurisdiction will hear disputes and under what governing law (that of the state of Washington) cases would be heard is more beneficial to other parties than it is to Wizards, because Wizards as part of Hasbro can afford to venue-shop much more than smaller parties can and because it makes things much simpler for everyone if we know what rules any dispute over the licence will be fought under.
The class action thing is perhaps a little dodgier. Especially in this version of the licence, there is definitely an asymmetry between Wizards of the Coast and everyone else participating in the licence, and one would think that if Wizards had behaved in a way which was truly detrimental to all other parties involved and which gave them clear reason for complaint, there would be scope for a class action to happen (in theory – in practice I suspect many participants would not want the bother). That said, I can see why Wizards would want to take that off the table, and I would say that if you thought there was a serious chance you might end up in a dispute with Wizards serious enough to merit a class action suit, you shouldn’t be entering licensing agreements with them in the first place.
Going back to the preamble itself, it concludes with “If a dispute ever occurs, We hope You agree with Us that it’s best all-around if it is handled quickly, efficiently, and with the least expense possible.” This feels pointless to me. To my mind, expressing a “hope” in a licence is utterly useless, because we can hope for all sorts of things but be disappointed. Either a term in a licence should specify a principle both parties agree to, or it shouldn’t be there.
I: Content Covered (and Not Covered)
A: Content Covered
Yes, the first bit under section I: Content Covered (and Not Covered) is subsection A: Content Covered. Aside from the sloppy drafting involved in giving the section and subsection very similar titles (I thought this was about clearing up the language, gang?), there’s problems here. Right away, I am getting the impression that this was drafted either by someone who didn’t understand OGL 1.0a and how it worked, or didn’t care and wanted to simply scrap the old licensing system altogether and replace it with an entirely new licensing environment, because I don’t understand why someone who both understood how OGL 1.0a and wanted to respect the creative environment it fostered would do what the licence is about to do here.
To understand what’s got me so overexcited, I need to go back quickly to OGL 1.0a. As we saw last time, that essentially talks about two different types of content. There’s Open Game Content, which Contributors (including, but not limited to, Wizards) have created and used the OGL to give other people making products access to; there’s Product Identity, which those same Contributors have ringfenced and which through using the OGL you agree not to touch. There’s further wrinkles there in how those are defined, but in practice if a Contributor wants something they created to be Open Game Content, it can be, whereas if they want something they’ve cooked up to be Product Identity, it will usually be the case that it can qualify as such (assuming they have correctly identified it as such).
In contrast, OGL 1.1 defines three different types of content. There’s “Usable D&D Content”, AKA “Licensed Content”, which is defined as the contents of SRD 5.1 and nothing else – and is therefore content which was created by and belongs to Wizards, and which they are licensing you to use. There’s “Not Usable D&D Content”, AKA “Unlicensed Content”, which consists of any official D&D content past or future released by Wizards or its predecessors or successors, and is not included in the SRD 5.1 – all of which would be Wizards IP. And then there’s “Your Content”, which is anything a third party using OGL 1.1 creates as their original contribution to an OGL 1.1 product.
So not only is the revision trying to go from a licensing regime where there’s two categories of content that the licence addresses to three categories, but the categories do not map onto each other in the slightest – especially when you consider the original ownership of that content.
And it’s here, right from the start, that we see a fundamental philosophical shift in the very underpinning of the OGL between 1.0a and 1.1. Whereas 1.0a was about a relationship between Contributors and people using the Open Game Content offered up by Contributors – with Wizards being an especially significant Contributor who had a few special privileges around custodianship of the licence – 1.1 is very much about a relationship between Wizards and third party licencees wanting to use Wizards content, with sharing of third party content between third parties simply not being treated as being that important.
The thing is, you can’t make this sort of major shift in the underlying basis of a licence and expect it the new version to be seen as a proportionate update to the old one. OK, sure, maybe it’s in your legal gift to do this – but in practical terms, in terms of the actual effect of the licence, you are basically issuing an entire new licence, creating an entirely new legal environment – governed, as we can see here, through an entirely different terminology – rather than making an improvement to the old licence to allow it to still perform the same general function.
It gets worse. The definition of Unlicensed Content describes it as “what the old Open Game License referred to as ‘Product Identity'” – but the two definitions do not actually overlap. For one thing, there’s plenty of stuff Wizards put out before SRD 5.1 which was Open Game Content, not Product Identity – a whole bunch is in the 3.X SRD documents, for instance. For another, there’s plenty of stuff out there which under OGL 1.0a counted as Product Identity, but was not property of Wizards and was never part of official Dungeons & Dragons material, because it was included in a book put out by someone else under the OGL for a different game entirely, which identified the relevant material as Product Identity.
Is this an attempt to abruptly retrospectively claim ownership of everything previously issued as Product Identity under OGL 1.0a by anyone, even if it was not Wizards, even if it wasn’t even for D&D? I don’t think so – even in light of the absurd overreach represented by OGL 1.1, this would be a bridge too far and I can’t see how anyone who actually understood OGL 1.0a would expect that sort of thing to stand up in court. (Though, again… I’m not confident this was written by someone who understood OGL 1.0a.)
That said, this is a brilliant example of why the declared aim to shift away from legalese into looser, more natural language in order to increase clarity is so mistaken; because the section describing Unlicensed Content is so slack and informal in how it defies that, it creates all this ambiguity and confusion where there shouldn’t be any. I get it: legalese is tedious. When writing legal text, I try to write in as plain English as I can whilst still covering the bases that need to be covered. I can’t always do that – sometimes legalese is needed – but in the contexts I work in being clear and easy to understood is paramount.
At the same time, there is a difference between avoiding legalese and embracing imprecision, and the loose and often informal way OGL 1.1 is written errs towards the latter. This is a problem.
The issues with subsection A appear in both the OGL: Non-Commercial and OGL: Commercial – indeed, to my eyes those subsections are identical in both flavours of OGL 1.1. In fact, it looks like someone made a bit of a copy-paste goof here – in the OGL: Non-Commercial version the definition of “Your Content” says “This license permits You to combine Your content with the Licensed Content and commercially distribute the resulting works”, which is of course nonsense because the OGL: Non-Commercial licence absolutely does not permit you to commercially distribute your stuff – the clue is in the name! One suspects that OGL: Commercial was drafted first and then quickly copy-pasted and edited to yield OGL: Non-Commercial, resulting in goofs like this.
B: Works Covered
This is framed the same way in both flavours of the licence – and makes it clear it only relates to RPG material published as printed media or “static electronic files” (basically epubs and PDFs). Everything else comes under Wizards’ fan content policy or bespoke direct licences.
The associated commentary drives this home with a list of all the sort of material you cannot use OGL 1.1 for – “videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes”. Admittedly, some of this is the sort of thing where it would have previously been awkward to provide a copy of OGL 1.0a with them – what, you’re going to read it out at the start of your pantomime? – but some of it is stuff where not only would it have been entirely viable to put it out in an OGL-compliant way, not only have people used OGL 1.0a for that exact purpose previously, but Wizards in that 2004 FAQ gave helpful guidance on how you could use it with some of those things – computer software, which of course would include videogames, virtual tabletop software, and apps.
Again, Wizards claim that this narrowing of scope is intentional in the introduction to this document, so at least this part reflects their declared intentions. The problem is that their declared intentions are aggressive and mean-spirited, and go beyond the claimed goal of shutting down allegedly unintended uses of the licence and goes into the realm of blocking uses they had previously been absolutely happy to permit, and to provide advice to assist compliance in respect of.
C: Licensed Works
This provides the criteria a product needs to meet to use OGL 1.1, and provides our first exciting difference between the Non-Commercial and the Commercial flavours.
Three of the four requirements are the same in both versions: your product has to be a work which qualifies under the previous section, your product must include both Licensed Content and Your Content, and your product must not include any Unlicensed Content. (In a moment of sloppy editing, the OGL: Commercial states the latter part twice.) So far, so uncontroversial, save that if your product must include Your Content, that on the face of it means that you can’t just repackage and republish the SRD with nicer formatting (because that would solely include Licensed Content). That feels like a tightening of control, and an utterly pointless one at that because people could get around it by including a trivial amount of original material in their repackaging of the SRD.
Here’s where the difference comes in. In the Non-Commercial flavour of the licence, you have to include a copy of the licence in your work, just like under OGL 1.0a. In the Commercial version, you don’t have to do that – instead you have to slap on a “Creator Content” badge, which wasn’t included in the leak so we didn’t know what it was going to look like at this stage (though a version did eventually emerge in the 1.2 version of the licence). Given that this is a mark which one must bear in order to participate in the commercial marketplace, a thematically appropriate logo would be a nice, striking “666”.
Iron Maiden-themed joking aside, there’s a significant issue with removing the requirement to reproduce the licence in commercial products. Under OGL 1.0a, this would be how you would go about acknowledging any relevant copyrights involved in the Open Game Content you used – and required some adaptation based on which bits Open Game Content you had used. It was also convenient as a means to clearly specify which parts of your product are Open Game Content and which parts are Product Identity.
However, as we have already seen OGL 1.1 is not interested in providing a common pool of Open Game Content that multiple parties can contribute to, or permitting third parties to delineate their own Product Identity. It only cares about giving you access to a tightly defined set of Wizards-provided content, and has no intention of providing you with tools for sharing your own material in turn with other third parties. (As we shall see, it’s very interested in you sharing your stuff with Wizards…) Giving you a logo for your commercial product and removing the need to put the licence in there emphasises that – there is no room for variation of that copyright notice because there is no pool of copyrighted materials from multiple sources you may need to credit. There’s the SRD, and that’s it.
II: License
In both versions of the licence this states that if you follow the terms and conditions of the licence, you get a license to copy, use, modify, and distribute Licensed Content around the world as part of Licensed Works, either on a non-commercial basis (in the Non-Commercial version) or a commercial basis (in the commercial one). The accompanying commentary makes it clear that “non-commercial” means that you make the work available to people for free, without receiving compensation for it in any form. It’s fine to have a Kofi or Patreon setup where people can pay you tips if they want, but if you are using OGL: Non-Commercial then you can’t gatekeep access to the content behind a paywall.
There’s a couple of sub-paragraphs here in both versions. The first specifies that Wizards are allowed to give other people the ability to use Licensed or Unlicensed Content under any conditions they choose – in other words, it’s a “non-exclusive” licence. Uncontentious, though it’s a paragraph which could be reduced to a word had the licence not abandoned standard legal terminology in a misguided quest for clarity.
The second one, to me, looks to be a bit more dubious, because it says that you can’t transfer your rights and duties under OGL 1.1 “under any circumstance or for any reason” and that “This license is not sub-licensable”. The latter emphasises the idea that this isn’t a creative commons any more – OGL 1.0a being based on the idea that you can sub-licence – the former creates a commercial headache people haven’t commented on.
Let’s say you are a publisher of OGL products, and for whatever reason you decide to wrap up that product line. At the same time, you would like to be able to ensure that customers are still able to get your products, but you don’t want to just upload PDFs onto the Internet for them to download for free – partially so those who paid full whack for them don’t end up feeling like chumps, partially because you promised to give royalties to the contributors and you don’t want to cut them off from that income stream.
As a result, you negotiate with another OGL publisher to reach a deal to sell off the product line to them, surrendering all your rights and duties in relation to the products in question to that other publisher. They’ll inherit your licencing arrangement with Wizards, they’ll take up all the contractual obligations you had to your contributors, they’ll handle everything.
Under OGL 1.0a, that’s nice, clean, and easy: assign your intellectual property, assign your contractual duties and your licensing rights, sign the paperwork, done and dusted. Conversely, under OGL 1.1 it doesn’t seem like you can do that. Perhaps part of that comes down to the fact that under OGL: Commercial, you need to register yourself with Wizards – of which more later – and Wizards put this in so anyone taking on someone else’s product line would have to jump through the loops to register themselves under the OGL: Commercial rather than just inheriting your old registration. That makes sense, and seems to me to be the likely thinking behind this clause.
However, remember that a Licensed Work must incorporate both Licensed Content and Your Content – specifically your content constituting your own original contribution, not someone else’s content they used in a OGL 1.1 product that they produced and then sold the rights in to you. I can definitely see an overreaching Wizards attorney arguing that because you can’t transfer your OGL 1.1 rights, you can’t transfer your right to put out a product combining Your Content with Licensed Content to someone else, because the right to combine that specific original content of yours with Wizards’ SRD content couldn’t be transferred to you. Under this interpretation, if you want to put out OGL 1.1 Licensed Works, they need to contain your own “Your Content” – ie, stuff original to you – not stuff someone else made and then assigned the rights of to you. I suspect that this wasn’t really the plan, because I suspect Wizards’ never bothered thinking far enough ahead to consider what happens when a commercial licensee wants to cash out and stop making a product line – because they don’t particularly care about the long-term fates of their licensees.
(Another motive here might be to avoid an exploit where people could conceivably avoid owing royalties to WotC through an extremely cheesy gambit – which I will get into when I discuss the royalties stuff.)
III. Ownership and IV. Identification of Licensed Content
These are all the same and constitute mostly uncontentious stuff – you agree that Wizards own the IP in the Licensed and Unlicensed Content, you agree to include suitable copyright notices, you agree to identify what Licensed Content you have used. All seems fairly reasonable.
The bit which gives me pause is the part which says you cannot apply different licence terms to the Licensed Content in any licence to your Licensed Work you give to someone. That is in principle reasonable – but we were literally just told you can’t sublicence under OGL 1.1, and I am not sure what licence you could reasonably offer to your Licensed Work which won’t require some sort of sublicence to the Licensed Content contained in that work. This feels like a part which could really have done with some clarification in the commentary – but no such clarification is offered.
At this point the two versions of the licence bifurcate – there’s two sections which only appear in the Non-Commercial licence and four which only appear in the Commercial version.
V. Share-Alike (Non-Commercial Only)
This bit is a mess. It says that when you put out a work under OGL: Non-Commercial, you have to offer the recipient a licence to the work under the same terms as OGL 1.1. In principle, this seems to be in the service of establishing a common pool of open content like under OGL 1.0a.
There’s several problems here, the first being that section II already told us you can’t sublicence under OGL 1.1, offering no exceptions, but this is more or less specifically directing you. That’s sloppy to begin with; either the Share-Alike section is a relic of a prior draft which should have been deleted, or the “no sublicence” clause should have said “except for the purposes of section V”.
Another problem is that the licence you have to offer is exactly the same as OGL 1.1, without modifications. This was the case under OGL 1.0a, and that was absolutely fine because that was drafted as a licence between Contributors and licensees thereof for use of the content the Contributors had stumped up.
By contrast, OGL 1.1 is solely drafted as an agreement between Wizards and licensees, and solely offers them use of Wizards’ Licensed Content, which solely consists of the SRD 5.1. If you reproduce it without modifications it is no use for making any other content, like the original parts of a licenced non-commercial work, available to others to use, making this “share-alike” provision more or less useless.
Notably, there is no equivalent share-alike provision in the commercial licence – drastically limiting the scope of products which could contribute to a shared pool of open content, even if this clause were effective for that purpose. Between that and how badly this clause were botched, this is one of those things which makes me suspect that whoever wrote this did not actually understand how OGL 1.0a worked, because if you did you would recognise how obviously useless this clause is, and either not include it or do a better job of disguising its utter pointlessness.
Beyond that, it’s hard to get a handle on what Wizards were thinking when they wrote this bit, because no commentary is offered here. Given the commitment to making the OGL clear and user-friendly, you would think an obvious comment to add here would be a worked example of how someone might implement this provision. That said, there’s more or less no commentary offered on the Non-Commercial-only clauses, suggesting that the non-commercial licence simply was not a priority for Wizards.
VI. Donations (Non-Commercial Only)
This clarifies that you can’t gate access to your noncommercial work behind a Patreon paywall or similar, but you can accept tips through such services.
V. Leveling Up Under This Agreement (Commercial Only)
This establishes three tiers of publishers of OGL: Commercial products. If you generate less than $50,000 of gross revenue – not profit – in a year from your entire OGL: Commercial product range, you are at Initiate tier. If it’s more than $50,000 but less than $750,000, you are at Intermediate Tier. If it is at $750,000 or more, you are at Expert Tier. (If it is exactly $50,000, you fall between the cracks, because Wizards fucked up and were imprecise in their language.)
Now, at those tier boundaries it would seem that only a tiny number of publishers in the industry would ever qualify for Expert tier, and many would never get to Intermediate – especially if they don’t put physical products into distribution and only put out low-cost PDFs on DriveThruRPG.
Note, however, that because Wizards believe they can update the licence and deauthorise old versions more or less on a whim, there is no reason to regard these tiers as being set in stone – with a revision to the licence they can move them as they see fit. This is especially significant in respect of the Expert tier boundary, which marks where you start paying royalties – if Wizards decided they wanted to squeeze more royalties out of the community (perhaps because the Hasbro board thinks that D&D is undermonetised) they could lower that boundary and not only expand the range of companies who fall into Expert tier, but also gouge more from the companies who are already there.
For example, say a company is generating a nice round million dollars in revenue per year from its OGL offerings. Under OGL 1.1, royalties are calculated based on the $250,000 of that which exceeds the $750,000 threshold – but nothing would stop Wizards updating that in OGL 1.1.1 a that the threshold is now, say, $400,000, so the company now has to pay royalties based on $600,000 of revenue exceeding that.
Wizards’ commentary on this, by the way, is infuriating. It’s one thing to want to use plain language when explaining a licence, and another thing to make glib, cutesy jokes in the middle of outlining a contract. This is a business matter, be professional and treat it as such, you absolute chucklefucks.
VI. Registration and Reporting (Commercial Only)
Every new product you put out under OGL 1.1 has to be registered with Wizards. What constitutes a “new” product could do with tightening up, to my mind. Let’s say you put out version 1 of a product. Then you notice some typos and errata, so you put out a corrected version 1.1. Do you need to register both versions, or are Wizards fine with you treating them as one product? What if you put out a version 1.2 with a small amount of extra material? A version 1.3 with a large amount of new stuff? Clearly a line must be drawn somewhere, but registering every little variant of a product would be burdensome to licensees and a pain for Wizards to keep track of and derive useful data from.
In addition, you need to start reporting revenue once you hit the Intermediate tier (ie, have a revenue across all your OGL 1.1 products of over $50,000). This means that Wizards will most likely have ample advance warning of when you are creeping up towards the royalties threshold; it also provides them with useful data for judging how much income they might get by lowering the threshold.
OGL 1.0a had no such reporting requirement – but it’s self-evident from this that Wizards were hoping to exert much more supervision over the market than previously. This would inevitably come across as intrusive in a market where previously Wizards didn’t give the sense that they were actively patrolling and policing content, just at most taking action against stuff they considered especially objectionable. (The Book of Erotic Fantasy is the only example I can think of, and there Wizards simply barred them from using the D20 STL for it and tightened it up to make it clear that you shouldn’t be using it for that type of product, and given how loud RPG fans are about drama I’d expect to be able to remember more incidents if Wizards were being especially litigious under OGL 1.0a.)
VII. Royalties (Commercial Only)
Here comes one of the parts which seriously upset people: the need for anyone generating over $750,000 of revenue (not profits – your revenue is going to be higher than your profits typically) in a year to pay royalties on the excess. I think there’s three major points worth commenting on here.
That Ruinous Royalty Rate
The royalty rate is 25% of your revenue in excess of the threshold, reduced to 20% of Kickstarter income.
Why Wizards would show this type of favouritism to Kickstarter specifically is an interesting question; we know Kickstarter negotiated the deal with them, because they said as much, and publicly claimed that they received no hidden kickbacks or benefits from Wizards for this. That feels like a bit of sneaky PR, because there’s no reason Kickstarter should have needed any hidden kickbacks: the preferential rate for Kickstarter projects is, in and of itself, amply beneficial to Kickstarter, because it means that it’s harder for OGL projects to justify using other crowdfunding platforms.
The real question there is “what did Wizards expect to get out of this?” – because it’s not clear why Wizards would give Kickstarter this sweetheart deal unless Wizards were deriving some benefit from the arrangement. Enhanced monitoring of OGL projects on Kickstarter? Preferential promotion (by algorithm or by hand) to ensure OGL projects – especially those likely to generate a chunk of change for Wizards – got more visibility and promotion via Kickstarter than non-OGL projects? We will likely never know, but it seems deeply unlikely that Wizards just wanted to give Kickstarter a corporate blowjob without reciprocation of some sort.
Really, though, whether you are talking about 20% or 25%, this level of revenue royalty is pretty horrendous. The RPG market tends to run on very tight margins, and suddenly having to pay that level of royalties on a product line represents a significant burden. In addition, let’s bear in mind the complication of a sizable royalty cut which kicks in once you hit a particular level of revenue; it means that your per-unit profit on your OGL product range abruptly declines once you hit the $750,000 mark. If you didn’t factor this possibility in ahead of hand – because you were gambling that your product line would never take off – then you can potentially end up in a situation where you end up making a loss on every product sold after a certain point.
If you factored Wizards’ cut into the product price, then at least you avoid the trap of every hard copy of your product making you a loss after that point – but even so, it presents you as a publisher with a distasteful choice. Do you price in Wizards’ cut from the start, potentially damaging your product line’s success in the market because of its higher price? Do you raise the price to account for Wizards’ cut once your revenue hits the limit, so once you come close to hitting Expert Tier you suddenly raise the prices on all your OGL products, potentially to the detriment of future sales? Or do you simply shut down the product line for the remainder of the year once you come close to hit that level, saving yourself the headache of figuring out the royalties calculation altogether? None of these options seem particularly attractive.
A Cheeky Exploit
Incidentally, remember when I said the non-transferability stuff might be a bid to avoid an exploit to avoid royalties? Here’s how I imagine that exploit going.
- Set up company A.
- Publish product line as company A.
- When you get close to the point where you would need to start paying royalties, set up company B, and have company A sell the entire product line to company B for a dollar.
- Now company A owes no royalties on the product, because their revenue for it never hit the target, but company B doesn’t owe royalties for it either, because they haven’t received any revenue for it.
- Keep selling product line as company B.
- Rinse and repeat whenever you get close to the danger zone.
You could even have your publishing brand be part of the IP you assign from company to company, so your Renegade Flumph Press products could formally speaking be put out by RFP Holding Company #1, then RFP Holding Company #2, and so on and so on down the line.
Now, on the one hand, it would be fairly evident to Wizards that you are doing this – but on the face of it, it seems to me that they would need to modify the licence to give themselves the right to unilaterally terminate your licence if you abuse it in this fashion. Then again, as we will see by agreeing to OGL 1.1 you’ll have bought into the idea that Wizards can not only modify and create new versions of the OGL, but also deauthorise old ones more or less on a whim, so if anyone tried this workaround I might expect Wizards to make suitable amendments.
Then again, they might not need to. Remember that point I noticed earlier about you not being allowed to sign over your rights under the OGL 1.1? I can certainly imagine Wizards trying to argue that this means that if you’ve put out a product under OGL 1.1, you can’t transfer the right to release that product to anyone else. That would block off this exploit – but would also bar entirely good-faith attempts by publishers to sell their product lines to others.
Is Anyone Actually Expected To Do This?
One last thought: it’s entirely possible that Wizards didn’t actually expect anyone to go along with this arrangement at all, at least not on a regular year-to-year basis.
Let me explain: back at the start of section V, the OGL: Commercial says that if you’re consistently meeting or exceeding the Expert Tier level, Wizards may reach out to set up a bespoke licensing agreement with you. My suspicion is that the Expert Tier royalty arrangements are, in effect, the stick to which bespoke licences are the corresponding carrot.
By merely planting the idea of bespoke licences so prominently, Wizards more or less guarantee that anyone staring down the barrel of Expert Tier will at least start wondering if they can get one of those bespoke licences – possibly to the extent of inquiring with Wizards ahead of time if they feel they are at risk of hitting that bar. Moreover, with the reporting regime in place, Wizards would be able to keep an eye on who’s drifting towards Expert Tier, and also have data on their annual income over the span of time they’ve been in Intermediate Tier, which would be useful in getting an idea of a particular successful licensee’s commercial cycles and help with the process of crafting a suitable licence.
From this perspective, it makes absolute sense that Expert Tier absolutely sucks: it’s meant to be annoying and burdensome, precisely because it’s the fallback position Wizards expect you to have to resort to if you won’t accept whatever bespoke deal they put on the table.
VIII. Fundraising (Commercial Only)
This describes how the royalties from Kickstarter and other crowdfunding campaigns work, how stretch goals work, how add-ons are adjudicated, and so on. On the face of it to me it seems more or less sensible, to the extent that campaigns involving a mix of products which would need licensing under the OGL and products which don’t need it mean any such set of rules is going to be slightly complicated anyway.
VII./IX. Warranties and Disclaimers
From this point on, the divergence of the Commercial and Non-Commercial flavours of licence ends and they round out with sections with, bar for different numbering due to the different number of Non-Commercial only/Commercial only sections, are broadly similar. For instance, in this section the major difference is in part F – which talks about the need to include the licence text in the Non-Commercial version, and talks about the need to use one of the creator content badges in the Commercial version.
By and large, none of the warranties and disclaimers seem to be especially outrageous – they require you to affirm that you’re legally able to enter a contract, you have to pinky-swear not to do illegal stuff, that’s all fine.
A clause which might have given some people concern, given other issues around the licence I’ll get into in a bit, is part I, where licensees commit not to do anything to damage the reputation of Wizards, D&D as a whole, the Licensed Content, or the Unlicensed Content. This is defined in fairly broad and vague terms. Had this been in a trademark licence like the D20 STL, which had similar provisions, I think this would be entirely uncontroversial. It looks a little odd from the perspective of someone coming from the 1.0a version of the OGL, because in that you can’t imply compatibility with Dungeons & Dragons or otherwise touch the brand at all, and so it’s hard to see how you can damage the reputation of the brand via your products.
Perhaps a reason to be a little concerned about how broad this clause is drafted is the polarised political environment in general, and in the US in particular, and in the known existence of bad actors who will do harassment campaigns in the tabletop RPG space. We live in an era, for instance, where the far right is very keen to paint any LGBT+ person as a “groomer”; are Wizards ready to receive bad faith nuisance complaints about every OGL product which incorporates any LGBT+ characters or plot elements whatsoever, or has a contributor who, say, does drag performances? I wish that example seemed as unlikely as it is ridiculous, but unfortunately that’s the way the hard right are playing it these days.
VIII./X. Termination
This has pretty much the same text in both flavours of the licence, which gives rises to some howlers – the non-commercial version refers to sales and royalties, which clearly aren’t going to be a thing in products under OGL: Non-Commercial. In addition, there’s references to sections VIII.G and VIII.H which are clearly nonsensical and which in context seem to be referring to sections G and H in the Warranties and Disclaimers section – so should be VII.G and VII.H in the Non-Commercial flavour and IX.G and IX.H in the Commercial version.
This was a controversial point, so it’s worth breaking this one down by subsection.
A. Modification
This is the bit where Wizards restate that they are allowed to make modifications to the OGL and put out updated versions, and where they explicitly try to deauthorise OGL 1.0a.
As I noted in the previous article, the relevant section of OGL 1.1 seems to at least imply that situations can arise where multiple authorised versions of the OGL can exist, and so merely updating does not automatically deauthorise old versions. As such, if they wanted to declare that OGL 1.0a was no longer available for use, they’d have needed to put in a statement to this effect anyway. The problem is that in the associated FAQ Wizards seemed to disavow the idea that they could deauthorise old versions if they wanted to, and as I noted anyone who put out OGL products on the basis of that FAQ could argue that the FAQ is relevant enough to their acceptance of the offer to be taken into account in any legal dispute on this.
Unilateral deauthorisation by Wizards opens up a bunch of headaches, in part because of an awkward asymmetry inherent in the way OGL 1.0a was written. As I’ve emphasised, OGL 1.0a was an agreement between Contributors (including, but not limited to, Wizards) and licensees wishing to use Open Game Content that the Contributors had provided. However, Wizards gave themselves the sole authority to make modifications to the OGL – without consultation with any of the other Contributors.
Does the authority to modify extend to the authority to deauthorise? That might be the major point of contention on which any argument in court would turn. My feeling on this is that it is a genuinely arguable point, because ultimately making a new version of the OGL is not the same thing as declaring that an old version no longer applies.
Wizards would most likely argue that because the idea of an authorised version of the OGL only appears in the section stating their power to update it, this would implicitly mean that they have the power to determine what is and is not an authorised version. The opposing argument would be that whilst OGL 1.0a does give Wizards the power to update, that only relates to producing new authorised versions – not killing off old authorised versions – and that because OGL 1.0a is a licence between the Contributors as a whole and licencees and Wizards is only one of many Contributors, any power which Wizards did not explicitly reserve for themselves in OGL 1.0a cannot be unilaterally exerted by Wizards alone without the consent of the other Contributors.
This is a mess, and is a mess partially because OGL 1.0a neither explicitly stated that old versions of the licence could not be deauthorised nor outlined what would happen in the event of an update. Based on that Wizards FAQ, it seems that the intention at the time was that it wouldn’t be deauthorisable to begin with, and that the only way Wizards would really want to update the OGL would be if they thought they could offer a more attractive package to the community by doing so.
What’s notable to me is that OGL 1.1 doesn’t really explain what deauthorisation means either – not in the licence text itself, not in the accompanying commentary. This probably made the controversy over this even worse than it might otherwise have been. The most Chicken Little-ish panics over it suggested that old products might end up losing their licenced status or compelled to update to OGL 1.1 – there was some suggestion that the Knights of the Old Republic games could be affected, even though those never used the OGL and were always based on a bespoke licence.
I genuinely don’t think that was ever Wizards’ intention, but they did themselves absolutely no favours by failing to include any commentary here on how they saw deauthorisation working in practice. Part of me suspects that they didn’t include that because they wanted to hedge their bets – they didn’t try to explain how it would work because they hadn’t yet decided how to make it work, perhaps because they didn’t yet know what objections might pop up and they wanted to craft a version of deauthorisation which would soothe people’s fears and avoid any major flaws people pointed out. Then again, it’s a goddamn silly thing to put something like this in a licence if you don’t have a plan in your head for how it would work in practice.
What is pretty undeniable is that whatever Wizards envisaged would happen with previously-published OGL products, new products going forwards would not be able to use OGL 1.0a. This has several knock-on effects.
The first and most obvious is that the range of products which can make use of the OGL provisions ends up being tightly squeezed – with OGL 1.1 only applying to RPG books (in hardcopy, PDFs, or ebook form) and the like, and 1.0a no longer being available, OGL-based videogames, virtual tabletops and the like would be suddenly and abruptly constrained. It is notable that a good chun of the higher-ups at Wizards/Hasbro these days are ex-Microsoft types with backgrounds in the XBox, and so perhaps they felt that they could demand more for D&D videogame licences if developers couldn’t just make a D&D-like computer game via the OGL. In addition, we know that Wizards have big plans for D&D Beyond offering their proprietary virtual tabletop setup – and what better way to encourage customers to migrated to that than to stop other virtual tabletops offering tools designed specifically for D&D?
The second issue is the impact on third parties which had used the OGL as a means of offering their own Open Game Content, rather than as a means of making use of Wizards’ offered Open Game Content. Suddenly, with OGL 1.0a deauthorised and OGL 1.1 only providing access to the 5.1 SRD, this no longer is a useful route to take. Since OGL 1.0a was only ever a non-exclusive licence, it is easy enough to come up with a replacement licensing arrangement if you are trying to make available Open Game Content which was 100% your own original work – indeed, ORC is just such an endeavour to make a new licensing arrangement, and Paizo are confident they will be able to use it for Pathfinder 2nd Edition since that uses minimal to no IP from Wizards to begin with (unlike the first edition of Pathfinder, which was very much based on the 3.X SRD).
It gets much more complicated, however, if your Open Game Content you have been licencing people to use is a mixture of your own original material and other people’s Open Game Content – whether those other people are Wizards or not – since your right to use those other people’s material was based on OGL 1.0a, and they might or might not have put an alternate broadly equivalent arrangement in place. (If they are Wizards, they almost certainly won’t have.) So deauthorisation causes massive headaches and burdens for anyone who hasn’t exclusively been using Wizards content – which, to be fair, is probably a situation Wizards is happy with, since the whole thrust of this licence so far has been to set up a situation where the only Open Game Content is the SRD 5.1.
Indeed, that’s the third big issue which arises as a result of deauthorisation – whereas Wizards were happy to let you use the 3.X SRDs (3.0, 3.5, and the Modern one) under OGL 1.0a, plus various other supplemental things they added to it, for OGL 1.1 they really seem to have wanted to do a hard reset on the pool of Open Game Content, trimming it way back to just the SRD 5.1. This would make things awkward even for third parties solely using Wizards’ own content – makers of straight retroclones, for instance, would be greatly inconvenienced by this. It’s hard not to see this as a bid to spur people away from trying to support old editions and get with the program already.
I would actually say that Wizards’ clear desire to drastically scale back the range of material they are giving people access to via the OGL is a major unacknowledged problem with OGL 1.1 – and one which has a particularly obnoxious overlap with this modification clause and the deauthorisation concept, because it means that at any time in the future Wizards could in theory just decide to yank even more material out of the pool of Open Game Content.
And that, really, is the major issue with the modification clause. If you accept the logic that Wizards can deauthorise old versions of the OGL at the drop of a hat – and buying into OGL 1.1 would imply that you do in fact accept that concept – then anything you put out under it, anything at all, could suddenly go from being a fine and legitimate to being no longer covered by the OGL (and therefore, if you used any Licensed Content at all, no longer commercially viable for you to produce), with only 30 days notice. Wizards could change the royalties arrangement so your current price structure goes from being viable to commercial self-destruction, with only 30 days notice. Wizards could shut down the OGL completely, with only 30 days notice. No RPG publisher with the slightest shred of a sense of self-preservation would take on that sort of risk.
The last issue I can see with the deauthorisation process is this: let’s suppose Wizards were always intending to let previously-published products under OGL 1.0a still use it. That’s a little weird in some respects, because it amounts to a partial deauthorisation (in that you aren’t authorised to use it for new products, but it is still authorised for the purposes of reprinting old content), but let’s go with that.
What happens if you need to correct a typo? What happens if you discover an artist you commissioned to produce illustrations plagiarised one of them and you need to remove it? What if one of your contributors transitions their gender, and would prefer you not to use their prior name in the credits in future reprints? What happens if anything else comes up with requires you to alter the content of the product? Are you able to put out corrected versions of the product – or are you (as seems more likely) stuck with the last version you put out under OGL 1.0a, unless you are able to update it to OGL 1.1? (And remember, updating an old product to OGL 1.1 may not be possible if it relied on material which was Open Game Content under OGL 1.0a, but isn’t found in the SRD 5.1.)
Again – these are all questions which really needed some clarity, but Wizards don’t offer any here. They just say OGL 1.0a is dead and move on.
B. Termination
Now that Wizards have got the modification clause done, they can actually talk about termination. You can terminate your licence with them by ceasing distribution entirely and providing them with written notice, or if you are on OGL: Commercial you can give up sales and make them available for free under OGL: Non-Commercial via a similar mechanism.
Wizards, on their side, have much more wide-ranging abilities to terminate the agreement. In some respects, this is an improvement over OGL 1.0a, which said that you have a 30 day time limit from becoming aware you’d breached some of its terms to make good on it or the licence terminated. The problem with that was that it wasn’t clear who was responsible for assessing whether you’d suitably fixed the situation – Wizards? The Contributors? – and also “becoming aware” could be hard to pin down.
Here, for most purposes you have a 30 day deadline to fix a breach once Wizards have made you aware of it. This means that there’s a much more easy to pin-down deadline, improving clarity for everyone, and Wizards are specifically responsible for letting you know you are in breach; odds are in most such situations they would tell you what you need to do to make good, or at least be open for discussing what you need to do if it’s unclear to you. That is an improvement.
Two other issues crept in here, however. The first is that Wizards can terminate your licence at the drop of a hat, no 30 day period to make good, if you bring a case against them challenging their ownership of the Licensed Content, Unlicensed Content, or any patent or trademark they own. Given that Unlicensed Content constitutes more or less all their D&D copyrighted material not put into the SRD, that pretty much means you can’t bring any sort of IP ownership case against them if you’ve bought into OGL 1.1 – which feels like an unfair surrender of rights if there is in fact an ownership question to settle.
The other issue is that they get to insta-terminate your licence if you infringe their IP, break the law in relation to your OGL activities, or if Wizards determine you have violated “Section VIII.G or Section VIII.H” – which contextually I think is meant to be subsections G and H in the respective Warranties and Disclaimers sections of the Non-Commercial and Commercial licences. G says “You will not violate the law in any way relating to this agreement or Your Licensed Works” and H is the bit forbidding using OGL content or works for “any harmful, discriminatory, illegal, obscene, or harassing purposes”.
The licence is explicit that Wizards is the sole authority in deciding whether you have violated warranties G or H. This can create absurd situations; for instance, in relation to G, it means that you can be 100% exonerated in court for an alleged crime committed by you in your OGL-related endeavours, but Wizards could arbitrarily decide that they know better than the court and you are in fact guilty as sin anyway and terminate your licence as though you had broken the law. In some respects this makes sense; if you think someone is probably a fraudster you should feel free to stop doing business with them, even if you haven’t proved to the “beyond reasonable doubt” standard of a criminal trial that they are a fraudster.
At the same time, it still feels a little arrogant on Wizards behalf – no, Wizards, you don’t have the sole right to decide whether someone violated the law in relation to OGL activities, the actual criminal justice system has a bit of a say there! The exact same discretion means that Wizards could, if they really wanted to, elect not to terminate the licence if you’re convicted of a crime related to your OGL activities if they arbitrarily decide you are innocent after all.
Wizards’ stated motivation for this is to let them step in if people are putting out “racist, sexist, homophobic, trans-phobic, bigoted or otherwise discriminatory content” using the OGL. This is a reasonable motivation, but there’s several issues here – the first being that if someone cares a lot about putting out RPG product hate literature, they can just do that and not need to use OGL 1.1 at all by simply never using any Licensed Content, thereby giving Wizards no basis to shut them down. I can see why the issue might be high in the mind of Wizards’ attorneys, due to the current legal issues with nu-TSR trying to put out a blatantly racist riff on Star Frontiers – but Star Frontiers was never Open Game Content anyway, and making it impossible for them to use SRD material in a Star Frontiers ripoff would be a speed bump but not much more than that.
A second problem is that the phrase “racist, sexist, homophobic, trans-phobic, bigoted or otherwise discriminatory content” isn’t in the licence – the phrasing in warranty H is that you shouldn’t use Licensed Content or works for any “harmful, discriminatory, illegal, obscene, or harassing purposes”. Let’s say a far-right billionaire buys Hasbro and decides that LGBT+ content is harmful or obscene – it would not be hard for them to use this provision to start shutting down products with such content. Indeed, because OGL 1.1 buys into the idea that Wizards can arbitrarily change the OGL, the provision is hardly an ironclad defence against such content being put out under the licence, because it just takes a change of personnel behind the scenes at Wizards for the commitment to stand against that content to go away.
And that leads into the third problem: I don’t think anyone trusts Wizards to be the final arbiter of what’s “racist, sexist, homophobic, trans-phobic, bigoted or otherwise discriminatory content”, especially since the licence lets them decide this more or less arbitrarily, or outright decline to take action if they don’t feel like it. Just as some of the more reactionary sections of the hobby looked at this clause and paniced about being cancelled by Wizards, so too did others more in line with my views remember that this is the publisher which let the whole Hadozee thing happen.
In other words, whilst some worry about Wizards over-reaching with this clause and going too censorious, others don’t 100% trust Wizards to consistently recognise this sort of content when they see it. Imagine what happens the first time there’s a big controversy over a product which ends up regarded as being a bit of an edge case, but about which there’s strong feelings on both sides of the line; it feels like Wizards are just setting themselves up to be at the heart of big controversies here.
That said, I don’t think this provision is necessarily all that controversial by itself – Wizards have reserved the right to do this sort of thing for a long time in other licensing agreements. The controversial bit comes from the attempt to apply this to the OGL specifically, when previously this sort of clause had been limited to agreements which gave you deeper access to Wizards’ IP – like the DM Vault terms and conditions or the D20 STL. In the latter context, this sort of clause was used to take the D20 licence away from the Book of Erotic Fantasy.
Extending this sort of clause into the realm of OGL stuff feels like a shift in gear – an expansion of the reach of Wizards’ ability to exert this sort of editorial veto. This prompts the question of “why?” – for under the Product Identity provisions of OGL 1.0a, people buying into the licence couldn’t touch the D&D brand directly (or even indicate compatibility with it) without separate licensing arrangements with Wizards. In that situation, Wizards were fine exerting no editorial control whatsoever – for if someone put out a product, assuming they weren’t in outright breach of the Product Identity provisions it would clearly be a third party product not endorsed by Wizards.
Any damage to the brand would be minimal, and there was nothing which stopped Wizards being suitably offended along with everyone else if someone put something out which attracted major opprobrium – an outcome which is frankly unlikely, because it’s not as though first-party D&D products attract moral panics in the mainstream media these days, and third-party products basically attract no attention outside of the hobby whatsoever. Inside the hobby, everyone knows the difference between an official Wizards product and an OGL knock-off. Wizards seem to be putting way too much effort to try and cover their ass in this respect given the low risks involved to them.
Unless, that is, there’s something different about the Product Identity provisions this time around, something which means that under OGL 1.1 it would actually be easier for a rogue publisher to taint the D&D brand than under OGL 1.0a… and I’ll get onto that later.
C. Upon Termination
This broadly makes sense, except it states that your obligation to pay royalties survives the termination of the agreement – makes sense in OGL: Commercial, utter nonsense in OGL: Non-Commercial, says it in both versions (and the Non-Commercial version of the clause also refers to sales). That’s just sloppy.
IX./XI. Indemnity
The first part of this states that if Wizards ends up facing any legal claims, fees, expenses, or penalties arising from your licenced works, that’s your fuckup and you have to pay for it – fair enough – and that Wizards might decide to stick their oar in on cases raised against you in relation to a Licensed Work. It all more or less seems fair enough, though I imagine Wizards would only do the latter if they feel like the case might set a precedent which damages the OGL somehow.
X./XII. Other Products
This is another bit which outraged people, and in this case I think the outrage is legitimate because it represents a particularly outrageous bit of overreach – because it’s the part that states that when it comes to your Licensed Work, nothing stops Wizards from putting out substantially similar products, and you give Wizards a “nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license” to use the original bits of your OGL 1.1 products for whatever the hell they like. (Note that Wizards are not giving you the right to use the SRD for anything you like! You can’t use it for videogames, for instance.)
Now, per the preamble and Wizards’ subsequent comments, it’s pretty evident that they were worried about the classic Hollywood thing of “Oh, your big expensive new project is clearly based on one of my ideas, I’m going to demand a payoff in return for not obstructing your production”. However, this is massive overkill for dealing with that – indeed, OGL 1.2 tried to address the same problem in a much less objectionable way.
Sure, Wizards said that whilst this clause meant that they technically could just flat-out take your product, republish it as theirs, and not pay you a penny for it – but they never actually intended to do that, or dreamed that they might. That’s all very well – but saying “This thing gives me the right to do this, but don’t worry, I will never actually exercise that right” is hardly an encouraging stance – and even if it were true that the current regime at Wizards would never use such a clause that way, that’s hardly encouraging when personnel churn in that company is what it is; at some point in the future you could end up with a slate of executives who think that mass appropriation of licensees’ IP is cool and good. No serious commercial publisher would ever touch a licence with such a clause, and for good reason.
XI./XIII. Disclaimer of Warranties and XII./XIV. Limitation of Liability
Essentially uncontroversial boilerplate.
XIII./XV. Miscellaneous
This is a mixture of uncontentious boilerplate and trickier matters.
For instance, clause B states that OGL 1.1 governs your use of the Licensed Content and “any prior agreements between Us and You are no longer in force” – which I think could be interpreted as meaning that not only is OGL 1.0a deauthorised under OGL 1.1, but also if you end up accepting OGL 1.1 that means all of your existing OGL 1.0a products using any Wizards content (ie, where Wizards is one of the Contributors for the purposes of your product) are now no longer legitimate licensed products, because by buying into OGL 1.1 you’ve agreed that all prior agreements between Wizards and you are no longer in force. Particularly since OGL 1.1 purports to be an update of OGL 1.0a (even though it has almost no text in common), it feels like OGL 1.0a would be regarded as just such a “prior agreement” in this context. That said, I suspect that wasn’t Wizards’ intention so much as an unintended consequence of drafting this part of the licence in this way.
Part C reaffirms Wizards’ right to update the agreement, and then states that once they give notice of an update, you can either proceed under the updated version or follow the procedure to terminate your licence – so explicitly in this version, updating the licence definitely does deauthorise old versions. Ironically, this may in some respects hurt any position that under OGL 1.0a updating the licence would automatically deauthorise old versions, or that by Wizards having the power under 1.0a to update the licence they also have the right to deauthorise old versions – if that were the intention, why didn’t it include words to this effect?
Part E reaffirms that you can’t assign the rights you get under OGL 1.1 to others without Wizards’ permission, perhaps for the reasons I outlined earlier.
What’s Missing: the OGL 1.0a Product Identity Restrictions
Although OGL 1.1 does say you can’t make use of Unlicensed Content, there’s no clause in it saying that you can’t indicate compatibility with Dungeons & Dragons – indicating compatibility with a trademarked product being the sort of thing which the courts would unlikely to consider to be a significant use of that content, to my eyes at least.
This is weird on two levels: firstly, OGL 1.0a was very clear that you weren’t allowed to indicate compatibility with stuff labelled as Product Identity, so you would think that Wizards would want to be explicit about that here to make it clear nothing has changed on that front. Secondly, Wizards’ one of overtly declared intents with the OGL 1.1 was to stop bad actors from tarnishing the brand, and you would think that if you wanted to do that, you would be really explicit about saying you can’t indicate compatibility with the brand.
(Indeed, this doesn’t just relate to indicating compatibility – OGL 1.0a explicitly said you couldn’t do all sorts of things with Product Identity which Wizards themselves admitted you would otherwise be able to do by default under other circumstances, and OGL 1.1 doesn’t explicitly reproduce those restrictions – it just says you can’t use Unlicensed Content. But indicating compatibility with Dungeons & Dragons feels like it would be the major thing people might want to do which they could not do under OGL 1.0a, and which you’d at least have a shot of a court ruling that it doesn’t constitute “using” Unlicensed Content if you do it.)
To my eyes, one of three things seems to be the case:
- Wizards didn’t intend to change the Product Identity rules and still wanted to bar you from indicating compatibility, but were astonishingly sloppy about stating this, despite the fact that doing so would directly serve the “don’t tarnish the brand” aim.
- Wizards intended to allow people to indicate compatibility with D&D with OGL 1.1 products, but did an absolutely sloppy job of indicating that they were making this concession in the commentary in the licence, thereby losing an opportunity to get good PR. This makes some of the “don’t tarnish the brand” stuff much more understandable – if you’re making a decision to suddenly allow people to do this, you’re going to want to add safety rails.
- Whoever drafted OGL 1.1 didn’t goddamn understand OGL 1.0a, they didn’t realise it barred people from indicating compatibility, they didn’t think of incorporating such a clause in OGL 1.1, and they generally did a sloppy job all around.
In other words, however you cut it the legal department at Wizards are running a sloppy shop. In particular, whoever drafted this was unusually and surprisingly clumsy with respect to the “don’t indicate compatibility” thing here, which is particularly weird because as I showed during my analysis of OGL 1.0a, this was clearly something they cared about when they drafted that – not only because of the inclusion of that clause to begin with, but also because they made a big point of clarifying it in the accompanying FAQ.
This used to be one of their red lines. Whether they’ve abandoned it or retained it, it’s weird that they don’t directly mention it.
What Does This Mean and Why Was This Important Again?
Way back during the Zak S. controversy, Patrick Stuart of False Machine put out a blog post on the subject. Formerly a defender of Zak’s, by the time Mandy Morbid’s narrative came to light Patrick had come around to the idea that Zak was not such a good dude, and he came out with a bit of phrasing I thought was especially apt. It’s about how it felt like there were two Zaks, a cool and clever and witty one and this second Zak, the one who gets into heated online debates and comes at people really hard and is kind of a headache to deal with, even when coercive sexual relationships aren’t in the equation.
At first it seems like the vituperative shit online is just a flaw in the larger person. Something you will have to put up with, a manageable flaw in an otherwise good man.
It takes a long fucking time to work out that the second guy is the real actual guy. That is the person making the decisions and for whom the decisions are made. The first person, the good guy, is just a set of behaviours he puts on like clothes.
If this can be true of a person, it can be especially true of a corporation. After Wizards raised the white flag and surrendered over the OGL revisions (for the time being), Kyle Brink of the D&D team was sent out on the interview rounds to try and soothe the waters. Brink’s been saying a lot of understandable, sympathetic things about the whole process, but let’s not fool themselves. Brink is the face that Wizards is showing to the world, the friendly fellow gamer that Wizards wants us to identify with, so we think that someone is in charge of D&D who understands our concern. He is not, to use Patrick’s phrase, one of the people “making the decisions, and for whom the decisions are made”.
Those people are, ultimately, the Hasbro board of directors, and the shareholders towards whom the board have fiduciary duties (though in practice the board are going to be the ones primarily making decisions, with the shareholders not really that making many decisions themselves directly, absent a shareholder revolt to shake up the board or otherwise force through positions the board aren’t keen on via shareholder votes). Kyle is not on the board; unless he has pulled off a masterstroke of hidden investments and shell companies worthy of Dallas, there’s no way he owns enough Hasbro stock to appreciably move the needle one way or the other on a contentious vote. Kyle can say all sorts of things about what Wizards’ thinking was behind the scenes – but it would be foolish to think that Kyle can make any commitments on the part of Hasbro or Wizards which can’t be overturned tomorrow if enough people on the board decide to take things in a different direction.
This is why it’s still important to remember what OGL 1.1 said. As I pointed out at the start of this article, even if we give Wizards maximal benefit of the doubt and assume that it was, indeed, just a draft for negotiation, not a finalised text, it still represents an opening bargaining position – something Wizards/Hasbro felt happy with putting out there. Though the text was initially leaked, the intention was always that if it had been agreed to, it would have gone public – so this isn’t even Wizards going full mask-off. But it is an interesting glimpse behind the mask. Someone in the Wizards/Hasbro power structure, individually or collectively, had enough sway to try and get this agenda advanced.
In a big picture perspective, we can try and infer things about what that agenda was by looking at the broad overall effect of OGL 1.1 – stepping back from the implication of individual clauses to work out what the cumulative effect of the measures rolled out here would be.
1: Tighter control of content offered, and an end to the pooled creative ecosystem. OGL 1.1 only envisages giving licensees access to SRD 5.1. On the face of it, it does not seem to give access to prior versions of the SRD. Nor does it include a mechanism for third parties to add their own work to the pool of Open Game Content that OGL 1.0a envisioned. Nothing to my eye stops third parties from offering access to their original content – so long as it is not intermingled with anything which might be seen as Licensed Content – under their own terms, but the burden of working out how to do that is on third parties. Furthermore, in many instances original content and Licensed Content will be intermingled in a way which is difficult to untangle.
To my eyes, this seems to be rooted in a very top-down attitude to D&D and the hobby as a whole. OGL 1.0a envisaged a creative milieu in which Wizards certainly had a privileged position, but there could be a flow of ideas back and forth between Wizards and third parties, and between third parties for that matter. Under OGL 1.1 the vision seems to be that Wizards decides what gets shared, it’s going to be a limited pool, and whilst they are giving themselves full, free access to everything OGL 1.1 creators put out they aren’t going to do anything to make it easier to third parties to share ideas with each other.
2: Tighter control of the content produced, in a way previously reserved for licences offering greater access to trademarks and/or setting content. As I’ve been banging away at over the course of this article and the last, the concern about OGL 1.0a making it too easy for people to put out content that tarnishes the D&D brand does not make a whole lot of sense to me because the Product Identity provisions in that would seem to forbid people from associating their product with the brand without permission. Sure, hate content is bad whether or not it tarnishes someone’s brand, but from a corporate point of view protecting the brand is the important thing as far as business goes, discouraging hate content in general is a secondary concern, and arguably nobody necessarily expects or wants Wizards to become the RPG Police – expressing distaste and condemnation for material beyond the pale would surely be enough.
I’ve talked a lot about the possibility that someone in charge at Wizards doesn’t understand the OGL 1.0a measures protecting Product Identity, but there is another possibility – that they do understand it, but for whatever reason they do not think those provisions are fit for that purpose.
Why might that be the case? Well, one reason might be that they believe they have been too soft on it for too long. It has become standard for OGL publishers to market their stuff as being compatible with “the world’s most popular roleplaying game”, and as far as the Anglosphere is concerned that is generally understood as being D&D. Wizards have been fine with people doing that for ages – it doesn’t exactly hurt that people are describing their game in that way, after all.
The concern may be about the risk of a sufficiently controversial product coming out using that language, and mainstream media not having the same understanding that gamers do that this is a third party unofficial product, thereby damaging the brand and the brand might be damaged as a result – but Wizards being unable to get the publishers to stop using that language, because of having let it slide in many other cases, because that turn of phrase does not actually touch the Product Identity directly, and because Wizards wouldn’t want to spook every other publisher which has used that language in contexts Wizards don’t mind. Under such circumstances, it seems that Wizards would want the ability to take more actions to protect the brand than OGL 1.0a allows for.
Alternatively, it is possible that someone at Wizards has concluded that the Product Identity provisions in OGL 1.0a are simply broken. Maybe they have noticed some case law or legislative reform I haven’t which means that the Product Identity restrictions are not enforceable – which means that they can’t be used for brand protection the way Wizards had previously hoped.
That would certainly explain why OGL 1.1 does not reproduce the restrictions on indicating compatibility from OGL 1.0a – and why Wizards have evaded talking about this aspect for so long. If they have realised those provisions are partially or entirely unsound, they would be fools to advertise that.
Either way, it’s clear that some person or set of people within the Wizards power structure wanted the OGL to work much more like the D20 STL, complete with content clauses. Whether they understood that this is what they wanted is a different matter.
3: Closer monitoring of commercial output. This not only enables the royalties regime Wizards wanted, but also helps serve the purpose of maintaining tighter control of output (and assists in monitoring compliance).
4: No OGL products outside of limited categories. It seems pretty evident that someone at Wizards is under the impression – quite possibly correctly – that the OGL makes it harder to get really good licensing deals for other media, because if you want to make a CRPG using a D&D-like system and you aren’t really fussed about using the name or any other bit of Product Identity you may as well just do it under OGL 1.0a. Likewise, a lot of the chatter after the leak speculated that Wizards wanted to make it harder for third parties to compete with the official OneD&D virtual tabletop that’s in the pipeline, and shutting off their ability to use OGL material would certainly be a way to do that.
5: The end of OGL 1.0a, and the ability to make further changes at a whim in future. The deauthorisation clause is one thing, but quite another is the update clause – wherein Wizards can make a change at the drop of a hat and give you 30 days to either assent to it or stop making OGL products. That means that Wizards not only wants the ability to kill the old licence, but the ability to change the entire OGL setup more or less entirely going forwards.
6: Royalties. As OGL 1.1 is written, this would only constitute a chunk of change from the royalties generated by a small number of exceptionally successful publishers. Of course, the caveat here is that whilst the royalty scheme as outlined would likely only affect a small number of publishers, the information-gathering from above means that if Wizards in future decided to squeeze the market harder, they absolutely could do it, and would have a very good idea of how much they could get out of doing so.
The overall cumulative effect of all of the above, taken together, is a pivoting of the OGL away from being about a communal endeavour to create a pool of Open Game Content in which Wizards was an enthusiastic participant to being all about third party publishers existing downstream from Wizards. It represents a significant shift of authority and power into Wizards’ hands compared to OGL 1.0a, as would inevitably the the case when the licence shifts from being between the community of Contributors and licensees to merely being between Wizards and licencees.
Whilst some specifics about OGL 1.1 have been objected to here and there, I think that underlying philosophical shift explains why OGL 1.1 ended up being as controversial as it was – and why no such agreement would have in the long run been satisfying to the community. It was, in effect, an attempt by Wizards to suddenly and abruptly exert much more control over the OGL sphere, and push other parties out from being licensors under the OGL (by dint of being Contributors) altogether.
To continue the analogy to the fantasy empire I’ve been using, it’s like the empire decided that after years of the borderlands being a distant protectorate in which other parties were fine to settle and run things broadly how they saw fit, they were now going to declare the borderlands an imperial province, appoint a governor, and require all the communities there to rearrange themselves according to imperial standards. It is no wonder that war ensued when the mutually beneficial peace deal is torn up so aggressively.
What’s more is that this sort of move could never have worked if OGL 1.0a was still extant – because if it was still there, people could still use it and just ignore OGL 1.1. From that perspective, it makes sense that OGL 1.0a getting deauthorised was a clause in OGL 1.1. On the other hand, it’s no surprise that the community were outraged by it, because back in that FAQ Wizards had promised they would never do that, and encouraged people thinking of using the OGL to do so on the basis that if Wizards made updates the community didn’t like, people would be free to keep using old licences.
That last bit is the thing which has really taken a poleaxe to people’s trust in Wizards. That said, this is not the first time said trust has taken a blow in general – and as Shannon Appelcline of RPG.net and Designers & Dragons pointed out at the height of the kerfuffle, far from the first recent incident in history related to contracts. As Appelcline outlined in a Twitter thread, there have been two prior high-profile cases: the first was related to Margaret Weis and Tracy Hickman’s new Dragonlance novel, and the second related to Gale Force 9’s licence to make D&D accessories.
In each of those cases, Wizards were in a contractual arrangement with the other party, and tried to rules lawyer their way out of the spirit of the contract by simply refusing to engage with the product approval processes outlined in those contracts. In both incidents, Wizards eventually folded like a house of cards (as they would over the OGL), having severely damaged their relationship with the other party for the sake of being legalistic smartasses trying to back out of a deal they were no longer happy with. Between that and the OGL thing, there seems to be a real problem at Wizards with the sort of behaviour which would be unwelcome at many gaming tables – namely, acting like being technically correct by the letter of the rules is more important than the goodwill you get out of dealing with people in a fair manner with good faith.
Doing this sort of thing once can be written off as clumsiness – but the more it happens, the more it starts to look like a pattern of behaviour. To paraphrase Patrick Stuart’s quote – at first it might seem like the attempts by Wizards at legal chicanery in order to rules lawyer their way out of the spirit of their commitments is just a flaw in the larger organisation. Something you will have to put up with, a manageable flaw in an otherwise good publishing company.
But with this OGL thing, we’ve now worked out that the rules lawyer who tries to torture the letter of a contract to weasel out of its spirit, only to end up in an untenable position and having to surrender, is the real actual Wizards. That is the organisation making the decisions and for whom the decisions are made. The Kyle Brink version of Wizards, the group of fun-loving gamers just like us who are jazzed to be part of this vibrant, diverse community of roleplayers, is just a set of behaviours they put on like clothes.
Refereeing and Reflection 
Thank you for a very enlightening analysis!
A couple of paragraphs end abruptly, perhaps something is missing?
I.e., “policing content, just at most taking action against rs” and “On the face of it to me it seems more or less sensible, to the extent that”
I do wonder if Wizards could have achieved some of their goals (however misguided they may have been) if they had offered up an alternate OGL, one not deauthorizing OGL 1.0a but meant to live side-by-side, with carrots such as ability to explicitly claim compatibility with D&D.
Thanks for catching those – I’ve corrected. (Both were in areas where I had little to say, so get less love during the proofread, and I was working on this long enough that my own proofreading became near-worthless anyway.)
The problem with offering something like 1.1 as a parallel licence with trademark access – along the lines of the old D20 STL – is that it could be perceived as competing with DM Vault, which gives you extensive access not only to Wizards’ trademarks but also copyrighted setting stuff, though it’s under significantly more control (you have to go through their storefront, etc.).
A “middle ground” licence – giving you a bit of access to declaring compatibility and some other carrots, but no access to Wizards’ own settings – might have been something which some publishers considered worth it, especially if the carrots were juicy enough. On the face of it, though, I feel like they’d need to be very juicy carrots to be worth it, especially since I don’t think being able to say “compatible with D&D 5E” instead of “compatible the fifth edition of the world’s most popular roleplaying game”.
It might have gone a little way towards their overall strategic goals, but of the goals which can be inferred from OGL 1.1, it wouldn’t help most of them because it leaves OGL 1.0a alive. At most they might have been able to get some royalties trickling in from those who used that licence – but I genuinely think the royalties were fairly low on the prirority list. The broader aims of establishing tighter overall control and reducing the pool of content available for OGL use wouldn’t be served at all because people could evade the control by using OGL 1.0a and have access to the entire pool of Open Game Content to date.
Computer companies have been using “open” to mean “closed and proprietary” for decades. I think HasbroWotC was trying for something similar, hollowing out the shell of the OGL concept and filling it with parasitic wasps. At the level of the accountants who very often drive policy at large companies, all the changes seem to point in the same direction: “money is being made and we’re not getting enough of it”.
To me the class action clause essentially says “our thumb is on the scales”: just as you say, it’s an unlikely situation to happen, but just in case they’re asserting that the licence user has to knuckle under up front and essentially pre-concede any plausible suit against them, by giving up access to the one way in which this can be made affordable. (Similarly the terminate on lawsuit clause later.) The (civil) legal system, after all, exists in large part to remedy unjust situations; saying as the more powerful partner “we won’t let you use (parts of) the legal system” is saying “we want to be able to make unjust situations persist”.
Regarding transferability: might one possible intention have been that the departing licensee reassign their own Your Content to the new licensee absolutely (and the new licensee register with HasbroWotC as the owner of that content), so that HasbroWotC would continue to have just one entity to deal with, rather than having to worry about getting involved in arguments between original and new licensees? (I realise this isn’t what it says.)
I believe some US jurisdictions still have laws prohibiting “the abominable and despicable crime against nature” without ever actually specifying what that might be.
I should be interested (at some point) in your thoughts on Chaosium’s BRP licence update of a few years ago, which seems to have effectively killed off what was a – not thriving, but certainly enthusiastic, publishing sector. (In particular I think that that example, which passed largely unremarked outside the BRP world, may have been in HasbroWotC’s minds when setting this up.)
Was not aware of the BRP licence update – do you have any links for sources on what happened there/what the community reaction was?
Most of the discussion happened on Chaosium’s own forums, where it’s since been deleted, or on Olde Yoggie where it’s not public.
https://www.chaosium.com/brp-system-reference-document/ is still there. The main objection was to the long and fuzzy list of genres and mechanics that couldn’t be used , which could be (and was) extended at Chaosium’s whim. It’s also explicitly updatable and revocable by Chaosium at any time at no notice. (They did at least consider grandfathering and errata, though, a couple of revisions after release – less than 30% new content, you get to keep the version of the licence you used before, but this could still kill off your product line by preventing you from adding to it.)
Contemporaneous reaction at https://frank-mitchell.com/posts/why-srd-again/ .
Chaosium’s reaction to all objections was basically “tough, you’re wrong and we don’t care”.
There is still a BRP fan community but I’ve only heard of one publication under this licence, Toxandria (on dtrpg).
Was this a new licence altogether? I vaguely remember them rolling this out but don’t think they had an official open licence prior to that.
I am much less fussed about people making a more limited offer than OGL 1.0a as their initial offering than I am about Wizards making a bunch of promises around OGL 1.0a they then go back on. Promising little (including “we refuse to commit to not extending this exclusion list”) and delivering is vastly preferable to promising a lot and then going back on it.
Chaosium also have the headache that a lot of BRP features ended up being put out by Mongoose under the Runequest SRD via OGL 1.0a, and have also come to the conclusion that it’s their settings that really give them their commercial appeal, but the settings of Pendragon and CoC are mostly in public domain.
Between all that and the way they seem genuinely approachable in terms of setting up direct third party licences for stuff, I consider it a non-issue.
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