The Good, the Bad, and the OGL-y, Part 3: Repairing the Pax Arcana

The story so far: two decades of the OGL 1.0a established a broadly understood regime for third party D&D support which, whilst perhaps unnecessary from a strict reading of IP law (in some interpretations), nonetheless represented at least a sense of legal certainty and confidence necessary to cajole third parties to attempt such products after the much harsher and more aggressive stance taken by TSR.

Then the leak of OGL 1.1 established that Wizards of the Coast were not only contemplating changing the OGL, but doing so in a way which simultaneously greatly contracted the range of material licensed under it (and the range of products that could be made under it), increased Wizards’ ability to monitor and control the market, and generally dented the interests of third parties. Moreover, it included a clause explicitly deauthorising OGL 1.0a – something which their own FAQ from 2004 implied was not actually possible.

The gamers outside looked from Wizards to TSR, and from TSR to Wizards, and from Wizards to TSR again; but already it was impossible to say which was which.

Kyle Brink, in interviews with podcasts, has claimed that Wizards were already planning to move away from OGL 1.1 when the leak happened because of feedback they had already received from those who’d had sight of it. That may well be true! The leak, however, did mean that a PR exercise around this was necessary. For this article, I’m going to cover their responses, do a deep dive into OGL 1.2, and then discuss Wizards’ total, humiliating, wretched capitulation to the outrage of the community.

The Initial Response

The first official word from Wizards was a bland statement credited to “D&D Beyond Staff”. It’s interesting in its own right that it’s the D&D Beyond website, rather than the main D&D site, that’s posting about this subject; it creates the impression that D&D Beyond is where the power and authority resides, and D&D is of secondary importance to the subscription service associated with it.

This leads off by outlining the goals that Wizards wanted to accomplish with OGL 1.1, and the principles underlying their goals. Let’s summarise those goals first, and think about how well OGL 1.1 met them.

  • “First, we wanted the ability to prevent the use of D&D content from being included in hateful and discriminatory products.”
  • “Second, we wanted to address those attempting to use D&D in web3, blockchain games, and NFTs by making clear that OGL content is limited to tabletop roleplaying content like campaigns, modules, and supplements.”
  • “And third, we wanted to ensure that the OGL is for the content creator, the homebrewer, the aspiring designer, our players, and the community—not major corporations to use for their own commercial and promotional purpose.”

That first goal is a worthwhile one to have, and it’s definitely something which OGL 1.0a by itself did not do – though because of its Product Identity provisions, the only D&D content which a product using OGL 1.0a could use was that designated as Open Game Content, and such products would have to actively skirt around Product Identity and give it a wider berth than would usually be the case under the law. OGL 1.1’s provisions would be effective at accomplishing that goal if and only if Wizards were true to their word and actually enforced the relevant clauses.

As for the second goal, it’s a pointless goal to set because you can’t “use D&D” in web3, blockchain games, and NFTs under OGL 1.0a anyway – because the Product Identity clause means you can’t touch the term D&D. You can put out a Generic Fantasy web3/blockchain thingy or NFTs on such themes under OGL 1.0a, but you can also just do the same without touching any licence whatsoever – it’s not like such grifts care that much about the actual content of the material anyway. I can see how some of the provisions in OGL 1.1 did end up addressing this point, but it’s a totally useless goal to pursue because nothing people could do under OGL 1.0a could associate D&D with an NFT or blockchain product anyway.

That third goal, I think, is wrongheaded in principle and was also sloppily executed. For one thing, there were no provisions in OGL 1.1 about the size of the commercial endeavour which could use it – a massive corporation could use it just as much as an individual homebrewer could, and indeed in some respects would be better placed to handle some of the requirements (like accounting for royalties) than a small operation would. You don’t stop big corporations from using your stuff by adding in a royalty requirement, because they can afford to price that in. You stop them from doing it by saying “You cannot use this licence if your company, or a company which owns a controlling interest in your company, has more than 1000 employees or an annual revenue of more than $100 million” or something along those lines.

The second reason that the goal was not well-executed is that a turnover of $750,000 a year is something which a very successful homebrewer, content creator, or aspiring designer might well achieve – a crowdfunding campaign which becomes a runaway success is very much possible in this industry. So not only is it not effective at locking out “major corporations”, but it also potentially bites on the very people you’re intending to protect.

The third reason is that the Non-Commercial licence ended up bring on very similar terms to the Commercial licence, with the significant differences being related to the matter of royalties and commercial exploitation. If Wizards really wanted to emphasise the idea that the OGL was for homebrew more than for corporate profit, it would have provided more in the way of carrots in the Non-Commercial licence.

A fourth reason is that the massive reduction of the pool of Open Game Content – is actively detrimental to homebrewers and the like because it slashes back the material available to them. If you’re here to help out aspiring designers, why would you snatch material out of their hands?

But aside from those four big reasons why this goal was not well-served in practice by OGL 1.1, I would also argue that it’s a poor goal to have in principle. Those aspiring designers and content creators would like to achieve their aspirations some day – if they know that if they hit a certain level of success they will be forced to either pay royalties to Wizards or stop putting out OGL products, that creates additional accounting and reporting burdens for them as a result of that success. In fact, because OGL 1.1 requires you to report revenue long before you start getting to the level where you are paying royalties, you only need to get a modest level of success there before Wizards starts laying those burdens on you. If you want to nurture aspiring designers and content creators, shouldn’t you be rewarding them for success, not making life harder once they get successful?

It’s also interesting to compare these declared goals to the overall effects of the new OGL I identified towards the end of last article, which are as follows:

  1. Tighter control of content offered, and an end to the pooled ecosystem. (Damages the third goal, doesn’t really advance the first or second.)
  2. Tighter control of the content produced, in a way previously reserved for licences offering greater access to trademarks and/or setting content. (Serves the first and second goal, damages the third goal.)
  3. Closer monitoring of commercial output. (Serves the first and second goal, arguably damages the third goal because meeting the monitoring requirements will be easier for major corporations than for small creators.)
  4. No OGL products outside of limited categories. (Serve the second goal, damages the third goal.)
  5. The end of OGL 1.0a, and the ability to make further changes at a whim in future. (Nothing to do with any of the goals.)
  6. Royalties. (Theoretically serves the third goal, but in practice damages it because major corporations can handle these better than small creators can.)

So as we can see from the above, the major effects of the changes in OGL 1.1 somewhat serve the first and second goal – but as I noted, the Product Identity provisions already went a long way towards this end, especially in terms of the second goal. They do nothing to support the third goal, and if anything do much more harm than good on that front.

In particular, I can’t see any way in which slashing back the pool of content available under the licence from “everything which has been put out as Open Game Content under OGL 1.0a” to “just SRD 5.1 and nothing else” serves any of Wizards’ declared goals. Sure, there’s the risk that some racist would put out hate literature and mark it as being Open Game Content available for people to use… but nobody is obligated to touch that, and the precise nature of OGL 1.0a means that people are largely responsible for what they themselves publish under it.

As mentioned, Wizards also named two guiding principles underpinning those goals: “Our job is to be good stewards of the game” and “the OGL exists for the benefit of the fans”. This first principle largely seems to have been served by the first and second goals, and the second principle by the third goal. What a surprise that the princple and goals best-served by OGL 1.1 involves Wizards exerting care and ownership of their intellectual property, whilst the principle and goal which OGL 1.1 actively sabotaged was the one with fans’ and homebrewers’ best interests centred! What a shock that a publicly traded corporation proved to be catastrophically bad at the “give” aspect of the give-and-take that’s at the heart of any community relationship!

Towards the end of their statement, Wizards came out with this astonishingly cheesy bit of language:

Second, you’re going to hear people say that they won, and we lost because making your voices heard forced us to change our plans. Those people will only be half right. They won—and so did we.

That put some people’s backs up – including me – because it sounds so horrendously smarmy. If you’re trying to get people to empathise with you and believe that you are on their side, you can’t sound this obnoxiously corporate. One of the biggest problems we have in the public sphere these days is the inability of people to just plain take an L and accept the ding to their ego that results, and that’s how it came across here.

To be fair, at that point Wizards hadn’t lost. As we shall see OGL 1.2 included a lot of the major features of OGL 1.1, was driven by much the same philosophy, and was generally a somewhat more tentative attempt to accomplish the same basic things. Wizards gave up on OGL 1.2 and have said they will leave OGL 1.0a in place, and has dumped a bunch of important IP forthem into Creative Commons. That’s the big loss. By comparison, this statement from Wizards is just them saying “Sure, we’re nine goals to nil down at half time, but we can really turn this game around in the second half!”

In between those two, Wizards outlined the aims of the new revision of the licence. Let’s call this the Litany of Promises – because they made a whole bunch of commitments here about what the new licence would and would not do, and it might be an interesting test of how much we can trust corporate statements from Wizards and how good their legal department is at sticking to previously-made commitments by seeing how many of those promises were abided by and how many were broken.

  1. The revision would include “the provisions that allow us to protect and cultivate the inclusive environment we are trying to build”.
  2. The new version will specify that it only covers content for tabletop RPGs.
  3. Non-tabletop RPG expressions “will remain unaffected by any OGL update”.
  4. Content already put out under OGL 1.0a would remain unaffected.
  5. The royalty structure would be removed.
  6. The license back provision would be removed.
  7. There would be clear language that people will own the content they create.
  8. There will be provisions to address the risk of people alleging copyright infringement getting in the way of “partnerships in film, television, and digital games”.

Following this there was another statement, this time signed off by Kyle Brink, saying much the same thing but in much less bland language, and then a little bit later the “playtest” of OGL 1.2 began. (Urgh, again, don’t use cutesy gamified language when you are discussing a business deal or a legal document, there’s a time and a place to be fucking serious.) So let’s take a look and pick that apart.

OGL 1.2: Olive Branch To the Community, Or OGL 1.1 In A Fake Moustache?

The Introductory Bit

This leads off with a summary of the different proposed routes for putting your D&D content out there. There’s the OGL, there’s the fan content policy, there’s a new virtual tabletop policy, and there’s a slim, near-useless (and possibly unprotectable under copyright anyway) slice of the SRD that was going to go into creative commons. Fine.

Next up, we get the creator content badges. With OGL 1.2 giving up on the Non-Commercial/Commercial distinction, now everyone using the OGL gets to use these. This isn’t a horrible idea! They’d potentially be quite attractive if they hadn’t become tainted by association with OGL 1.1.

Tucked down at the end of this page we have the first poison pill: a notice that OGL 1.0a is deauthorised, and that you can no longer put out new products under it, though stuff published before a cutoff point is fine. That’s clear enough, though I feel like some clarity could be offered on whether reprinting old products with corrected errata and the like is acceptable.

The deauthorisation of OGL 1.0a inevitably means that OGL 1.2 sets itself a high bar – if people felt it was a worse deal, they would resent it all the more for that. But it would not be impossible to offer an OGL 1.2 that offered a better deal, or a similar one. Irrevocability and limiting the extent to which Wizards could amend the licence in future would be good, but what will be crucial, to my mind, is grandfathering in more Open Game Content from OGL 1.0a than just SRD 5.1, as would ensuring that OGL 1.2 is legitimate for as wide a range of products as OGL 1.0a.

Unfortunately, Wizards dropped the ball on that almost right out of the gate…

Licence Preamble

This defines the licence as being between Wizards and licensees. This is a red flag to begin with because it once again reframes who the licence is between – remember, under OGL 1.0a the licensors are in effect not merely Wizards, but the Contributors as a whole, because OGL 1.0a is about sharing more content than just Wizards’ own.

1: Licensed Content

This is more or less reproducing points from OGL 1.1, with the accompanying negative effects on the field.

Firstly, the definition of Licensed Content, Unlicensed Content, and Your Content is more or less the same – meaning that the pool of Licensed Content is restricted to SRD 5.1 (and future revisions thereof). It sweeps aside all the Open Game Content that third parties have made available under OGL 1.0a, it dumps a large amount of Open Game Content Wizards themselves have previously offered in the 3.X era in the bin. The former is fixable by third parties coming up with their own way of licensing their original contributions, provided those can be easily disentangled from stuff Wizards hasn’t put out under Creative Commons (which remember is very little under OGL 1.2), the latter is not fixable save by Wizards putting older SRDs into the pool of Licensed Content.

This they do not do; nor did they do that under OGL 1.1. I cannot see how denying access to the 3E SRDs serves the purpose of any of the goals that Wizards outlines; it would seem to only provide the function of royally screwing Pathfinder 1st Edition (2E has moved away from 3.X reliance) and any other retroclone of 3.X, and generally trying to pressure people to update to 5E or later editions. It vandalises the creative field for no purpose which is beneficial to the fans, and so is a betrayal of Wizards’ own declared principles.

The second problem with this section is that it once again restricts the OGL to RPG products. This is a breach of the promise that other types of content would not be affected – because with OGL 1.0a deauthorised and OGL 1.2 and other policies not giving such products a safe harbour, those products would inevitably be affected. Wizards’ smug insistence during the OGL 1.2 consultation process that other product types are not affected when OGL-based videogames in particular are clearly affected was infuriating.

Thirdly, and perhaps more minorly, the requirements for a product to include both Licensed Content and Your Content to qualify is retained – so a reformatted version of the SRD 5.1 arguably would not qualify because it would not include any original content.

2: License

This describes the nature of the licence offered. Notably, it states that the licence is irrevocable. People wanted irrevocability, so this provides irrevocability, right?

Well, here’s the thing. This clause does not simply state that the licence is irrevocable and leave it at that. If it had, then “irrevocable” would mean what it generally means in contract law as Washington State interprets it. OGL 1.2 immediately dilutes the irrevocability it offers by providing a narrower and more precise definition thereof, which I think most courts would regard as being the definition for the purpose of the licence, overriding the default interpretation of the term.

Really, check it! The phrasing used is that the licence is “irrevocable (meaning that content licensed under this license can never be withdrawn from the license)”. This means that as long as OGL 1.2 is made available, SRD 5.1 (and any subsequent revisions of the SRD – since revising the SRD is the only mechanism given for adding more Licensed Content) will be available for use under it. It doesn’t mean the terms of the licence given cannot change over time, and it does not mean that Wizards couldn’t abruptly announce that they were no longer offering the licence – so those who alreayd had the rights to use the Licensed Content could keep using it, but new people who had not previously published under OGL 1.2 could not take it up after that point.

In addition, the licence is given “In consideration for your compliance” – and indeed the termination clauses allow Wizards to terminate it if you do not comply. So the irrevocability is not unlimited in scope.

3: What You Own

This makes it clear that you own your own IP, but it’s entirely possible that Wizards or other licensees of theirs may independently cook up ideas of their own similar to yours, and if you want to sue them for stealing your ideas, you need to a) demonstrate that they knowingly and intentionally copied your stuff, rather than making something substantially similar, and b) restrict your claim to a breach of contract lawsuit for money damages, not for injunctive relief.

Essentially, this means that if Wizards or (for example) Hollywood studio they’ve given a movie licence to copies your shit, you can’t get an injunction to stop them putting out a game, movie, or whatever other thing you claim the copying takes place in – you can just go in and demand a monetary payoff. In some respects this is reasonable enough – D&D fantasy is, whilst fairly varied, just homogenous enough in its assumptions that two people coming up with the same D&D-ish idea independently of each other is very much possible.

On the other hand, the fact that you have to show knowing and intentional copying makes the bar for succeeding at such a case fairly high. There’s definitely a risk that someone could have their stuff ripped off under this provision and end up with nothng to show for it, simply because the people who ripped them off did a good enough job of taking their ideas and giving them just enough of a twist to make it look coincidental, and did a good job of not leaving behind a paper trail that this is what they did.

On the third hand, third party OGL publishers are also protected under this – they’re other licensees after all – which means it’s harder for someone to make a nuisance of themselves by bringing spurious claims against other OGL publishers, because in those situations as with the others, the bar for proving the case will be high and only money damages can be sought.

4: What We Own

Self-explanatory and uncontroversial.

5: You Control Your Content

This does not provide a mechanism for pooling Open Game Content directly, but does at least make it clear that if you want to license out your own content, you can do so under the terms you wish, but the bits of your product which are Licensed Content will only be available under OGL 1.2 terms. It provides some fairly sensible pointers on how you might do this.

Because of the leeway it gives other parties in what terms they licence their content under, it’s not really a substitute for the provisions in OGL 1.0a to make a pool of Open Game Content – because part of the point of that pool is that you can be sure that everything which is Open Game Content is available under exactly the same terms. It’s not nothing, however. In particular, if I remember right by the time OGL 1.2 came out Paizo and others had announced they were developing the ORC licence, and it seems like had OGL 1.2 gone ahead it would have been legit to put out products which mixed OGL 1.2 and ORC content. If Wizards had wanted to play hardball, they could have tried barring this.

6: Warranties and Disclaimers

This is, for the most part, uncontroversial. The big exception is part (f), the “No Hateful Content Or Conduct”. This brings in, as OGL 1.1 did, a bar on “harmful, discriminatory, illegal, obscene, or harassing” content, but also extends it to conduct as well.

In principle, this is a worthwhile thing to want. The difficulty here is that the clause states that Wizards have the sole right to make the determination on what conduct qualifies as such, and OGL 1.2 licensees agree that they will not use any legal action to dispute that.

As we’ll see in a second, an adverse finding under 6(f) means that your licence for your product terminates immediately – which means that Wizards are giving themselves the authority to shut down a competitor’s product instantaneously, at a moments notice, because they arbitrarily decide that something in it is “harmful, discriminatory, illegal, obscene, or harassing”. There is no comeback for the licensee if Wizards make a bad decision, and absolutely no requirement for Wizards to actually explain their reasoning.

As I said in the last article – content clauses are not new in D&D-related licences, the D20 STL had similar provisions and Wizards ended up using them to shut down the Book of Erotic Fantasy as a D20-branded product. However, the publishers of that were still free to just fall back on the OGL and take that route to release it – which was exactly what they did, bringing it out with a “Compatible with the OGL” logo on it they’d made up themselves rather than the 3.X-era D20 System logo. The former setup allowed Wizards to yank their trademarks and branding from being associated with a product they did not approve of – but this allows them to simply drive someone out of the OGL business if they get a wild hair to.

This raises a number of the same issues as the corresponding clauses in OGL 1.1 did. Once again, it puts us in the position of trusting the company that did the whole “Hadozee” thing and had the Orion Black controversy hit a while back will make sensible decisions in this respect. Just as hard right anti-woke sorts clutched their pearls over the idea of Wizards becoming very censorious in this respect, so too would others (including me) feel concerned that Wizards might give content a pass when it really, really shouldn’t, or be sloppy and inconsistent in how it applies its discretion in this area.

Moreover, extending the provision to conduct opens an additional can of words. To be fair, I definitely think people can exhibit conduct which makes them a net negative to the RPG community, or which makes me deeply disinclined to support them with my wallet. However, creating a situation where bad conduct on someone’s part can prompt Wizards to pull their OGL rights more or less guarantees that, had OGL 1.2 gone through, Wizards would have found themselves dragged into every controversy in the design space involving an OGL publisher, whether those controversies were valid or not.

On top of that, whilst Wizards’ declared intention with this clause was to bar racism, sexism, trans- and homophobia, and so on, the clause is broader than that. All sorts of behaviour can be described as at least one of “harmful, discriminatory, illegal, obscene, or harassing”, and it only takes one of those to constitute a violation of this clause. A lot of very dedicated people are putting a lot of energy into promoting the idea that the particular targets of their animus are specifically harmful or obscene – and this clause risks energising them.

For example, at the moment there’s an intense backlash against drag performances in the US. Is Wizards really happy to create a situation where far-right mobs are incentivised to target OGL creators who happen to do drag on the basis that, from the perspective of the extremists, drag is “harmful” and “obscene”? Sure, sure, the current regime at Wizards won’t give such objections any credence – but the mobs won’t care about that. The whole point is to kick off a controversy, and if that leads into a chance to yell at a big company for going woke as far as they are concerned, that’s a bonus. This clause would absolutely encourage that tactic.

Also, what if a billionaire transphobe ends up buying up Hasbro and decides to change their content policies to pander to their own political prejudices? It sounds like an absurd outcome, but it happened to Twitter.

During the OGL 1.2 feedback phase, some people tried to advocate for the idea of a neutral third party arbiter being involved in such decisions, so as to avoid the clear conflict of interest involved in Wizards being able to decide whether a potential competitor could stay in business. That’s nice in theory, but raises the question of who would pay for this – and whether such a third party could even be found that everyone would have confidence in. (And what if that particular arbitration service goes out of business?)

7: Modification Or Termination

This has a carrot and a stick in it. The carrot is that Wizards give up their right to modify OGL 1.2 beyond tweaking how attribution of Licensed Content works under section 5 and the notice provisions of section 9. The stick are the termination provisions – insta-termination if you infringe Wizards’ IP, get in an IP dispute over their Licensed Content, trademarks, or patents, break the law, or violate the hate content clause, and 30 days notice to either fix your shit or lose your licence if you breach any other term.

If Wizards were feeling really cheeky, they could use the modification clause to backdoor all manner of measures into the attribution and notice provisions sections. “You must include a current Wizards of the Coast Authorisation Certificate in your attribution section, provided to you in return for an administration free constituting 25% of annual revenue in excess of $750,000”, “You must give us notice of your annual revenue”, that sort of thing. It would be rude and sharp practice and a shitty thing to do and quite an unlikely gambit, but so was OGL 1.1.

8: Disclaimer of Warranties and Limitation of Liability

Standard boilerplate.

9: Miscellaneous

Much of this is innocuous. The bit which got the most attention was the severability clause, which states that if any part of the licence is held to be unenforceable or invalid, Wizards could declare OGL 1.2 100% dead. If they don’t elect to do this, then the licence remains enforced as if the part which is unenforceable doesn’t exist (a much more usual severability clause) – but there is no time limit stated on them electing to do this, so in principle if some minor part were found unenforceable or invalid, Wizards could use that as a sword of Damocles hanging over all the licensees indefinitely.

When OGL 1.2 was in its feedback phase, some raised a worry that Wizards might use this as a crafty loophole to get the thing killed – bringing an action to get the thing held unenforceable (perhaps themselves, perhaps via a sockpuppet plaintiff) so as to give themselves the opportunity to cancel it. I feel like that’s something of a stretch; it’s a gambit which would be hard to pull off unless you deliberately wrote the licence with a fatally flawed clause you could target if necessary, and if you did that you’d have the risk of someone coming after it when you weren’t ready to cancel the licence.

(Then again… if you used the modification provisions to add something absurd and unenforceable to the attribution or notice sections, and someone successfully challenged you, that could be a route towards a controlled demolition of OGL 1.2.)

That said, I can understand why people would be suspicious – OGL 1.1 was enough of a shock that there was a very limited amount of trust and goodwill being extended towards Wizards at the time, under such circumstances it’s understandable that people would regard OGL 1.2 with their most rules lawyer-y glasses to see ways in which Wizards might twist it to their advantage.

As I mentioned above, I think a more viable cancellation scenario would have been Wizards simply saying “We are no longer offering OGL 1.2 for new licensees; if you did not already have licence rights under OGL 1.2, you cannot now obtain them.” This sort of unilateral canning of the licence wouldn’t have been viable for OGL 1.0a, because that was a licence between a collective of Contributors and the licensees – and whilst Wizards could modify the licence off their own bat, it did not give them an explicit right to take the entire offering of the licence off the table, and it didn’t give them means to unilaterally pull their own content out of the OGL and stop being Contributors (because if you could yank your material out of the pool of Open Game Content the licence would be useless).

However, because OGL 1.2 is a licence between Wizards themselves and licensees, it’s much easier for Wizards as sole licensor in the equation to say “OK, offer’s not on the table any more as of this date, hope you all enjoyed it.” That would not mean that people’s existing products would stop being fine – after all, the licence to the content is irrevocable – but it would mean that the licence would no longer be available to use by new licensees.

The Virtual Tabletop Policy

This isn’t part of OGL 1.2 – which, after all, explicitly doesn’t cover anything other than RPG books and PDFs and the like – but it was unveiled alongside it. It’s not a licence, so close analysis of the language isn’t so helpful, and it was explicitly presented as the start of a conversation, but we can get some broad brushstrokes of where Wizards was coming from here.

Wizards’ ostensible purpose here is to draw a distinction between virtual tabletops and videogames. That may have even been their actual motivation, if they believe they’ve lost out on getting better videogame licensing deals as a result of OGL 1.0a making it possible to make videogames using D&D mechanics – but even if they were being on the level about that, this still means that they are deliberately setting up a licensing situation where videogames are frozen out of any open licensing arrangement or general permission to use the IP, whereas videogames were previously within the scope of OGL 1.0a. This would make it a hard sell in any event.

An additional problem is that they draw the line between videogames and virtual tabletop in a weird place by citing animations as something which would push something too far into the videogame space. This, if the policy were implemented, would have made headaches for any VTT platform with animations included trying to incorporate 5E support.

To my mind, a better place to draw the line is in automation: is it possible on your platform to drop a mob of mooks on the tabletop and have the players play through a combat with them without you making any further input, because the mooks make their own decisions and participate in combat automatically, or does a human being have to be making all the decisions for the NPCs? The latter feels like it’s in VTT-land still, no matter how many flashy animations are baked in; the former, with the automation, starts to feel like something like Neverwinter Nights, which even in GMed modules I would say resembles a videogame more than it resembles a virtual tabletop.

Excellent, especially in GMed modules, but not a virtual tabletop.

The suspicion here was that the videogame thing was either just a figleaf or, if it was a real concern, not the whole agenda here – that part of the point of the virtual tabletop policy was to deliberately hamstring competing VTTs so as to give D&D Beyond the edge in terms of providing a VTT with 5E support. This may or may not have been the case – we’ll never know, Wizards backed off from this whole scheme. Either way, intentionally or not the message being sent to other VTT creators was “stay in your lane”, which was unlikely to go down well in any event and went down especially poorly in the wake of OGL 1.1.

Conclusions On OGL 1.2

So, what to make of the package on offer with OGL 1.2? Well, first off let’s go back to that list of promises Wizards made about what it would and would not include and see whether it delivered on those commitments.

  1. The revision would include “the provisions that allow us to protect and cultivate the inclusive environment we are trying to build”. (Yes!)
  2. The new version will specify that it only covers content for tabletop RPGs. (Yes!)
  3. Non-tabletop RPG expressions “will remain unaffected by any OGL update”. (Promise broken! Precisely because OGL 1.0a is deauthorised by OGL 1.2, and OGL 1.2 greatly shrinks the range of products it covers, non-RPG products would inevitably be affected.)
  4. Content already put out under OGL 1.0a would remain unaffected. (Yes!)
  5. The royalty structure would be removed. (Yes!)
  6. The license back provision would be removed. (Yes!)
  7. There would be clear language that people will own the content they create. (Yes!)
  8. There will be provisions to address the risk of people alleging copyright infringement getting in the way of “partnerships in film, television, and digital games”. (Yes!)

It will be noted that promise 2 and promise 3 were always kind of contradictory anyway, though there would have been ways around it. (A statement could have been made that non-RPG products could keep using OGL 1.0a, and it was only deauthorised in respect of RPG products, for instance.)

It will also be noted that this is a list of promises which largely boil down to “we promise to do what we were going to do anyway”. Promises 1 and 2 were also true of OGL 1.1. Promise 8 was effectively true of OGL 1.1 – OGL 1.2 just came at the problem from a different route. Hell, promise 7 was true of OGL 1.1 – sure, it included those license back provisions, but it did say you own the IP in your own creations (Wizards are just allowed to use it for free). Furthermore, there’s nothing in OGL 1.1 which clarifies how existing OGL 1.0a products are affected – so promise 4 may have always been intend to be the case. Only promises 5 and 6 really represented substantial changes of course from OGL 1.1, all told.

So, of the eight promises that I identified, we have:

  • Half of them which were just promising to do stuff which OGL 1.1 tried to do anyway, though sometimes through different means.
  • One of them which was outright broken by OGL 1.2.
  • One of them which might have been true of OGL 1.1 anyway, but wasn’t clear.
  • Two of them which represent genuine changes from OGL 1.1, and which OGL 1.2 followed through on.

It’s not an especially valuable set of promises, all told – and the fact that one of the promises was outright broken and Wizards tried to blah blah blah their way past that point was especially obnoxious.

Another problem with that set of commitments is that not merely fails to address some of the issues the community had a problem with, but also made sticking to some of them near-inevitable. Kyle Brink was very clear that deauthorising OGL 1.0a was still on the agenda, ostensibly because without that the anti-hate speech provisions would not bite. But again: if you enforced your Product Identity stuff you could keep the hatemongers well away from your brand!

Sure, opposing hate literature is good in its own right, but don’t tell me that Hasbro, the publicly traded company with a fiduciary duty to its shareholders, was planning to be the RPG Content Police out of a sense of moral responsibility; institutionally, corporations don’t really have that, even if individuals in corporations do. As a company, Hasbro’s main concern there would be to ensure that the D&D brand was not tainted by hate speech – and with the Product Identity provisions in OGL 1.0a

Even if the hate speech thing were a genuine motivation (as I think it was, albeit probably for more selfish reasons than claimed), deauthorising OGL 1.0a was also essential to another agenda being served by OGL 1.1 and OGL 1.2, one which Kyle Brink did not explicitly and overtly spell out, but which some parts (the virtual tabletop policy in particular) exposed – namely, shutting down the ability for people to use OGL 1.0a to make videogames with D&D mechanics. I keep going on about that bit, but that’s because it keeps coming up, and I have strong suspicious that either Wizards/Hasbro actually had a videogame deal which either ran into difficulty or outright got derailed because of this, or the Hasbro board’s videogame industry veterans were very nervous about that prospect.

The enunciated promises about what OGL 1.2 would contain are not the only lens by which we can judge it; we can also compare the general overall effect of OGL 1.2 to the list of major big picture effects of OGL 1.1 I compiled. After all, if OGL 1.2 undoes most of those effects, then it seems like a truly major concession, whereas if it keeps most of them intact it starts to look like OGL 1.1 in a fake moustache and with some of the more contentious clauses trimmed off. How does that shake out?

  1. Tighter control of content offered, and an end to the pooled ecosystem. This was retained.
  2. Tighter control of the content produced, in a way previously reserved for licences offering greater access to trademarks and/or setting content. This was retained, mostly – the major concession here being abandoning the license-back provisions giving Wizards free access to people’s original contributions.
  3. Closer monitoring of commercial output. This was abandoned.
  4. No OGL products outside of limited categories. Still here.
  5. The end of OGL 1.0a, and the ability to make further changes at a whim in future. Achieved in a limited fashion. The capacity to make further changes was significantly constrained, but there were routes by which Wizards could have conceivably worked around this if they wanted to be a bit cheesy (through gambits like dumping a load of extra clauses into the attribution or notice sections).
  6. Royalties. This was killed dead.

In other words, two of those major effects are gone, three are completely intact, and one is mildly compromised but is still present to the extent that it has significant impacts (by killing OGL 1.0a). From this perspective, the major concession that Wizards made was giving up on the royalties – the monitoring of products produced was arguably only there to serve the collection of royalties, so once the royalties idea was given up on, conceding that was easy.

On the whole, the underlying philosophy of OGL 1.2 is much more like OGL 1.1 than OGL 1.0a. It’s still pivoting from being a licence between Contributors (including Wizards but not limited to them) and licensees to a licence between Wizards alone and licensees. It’s still not explicitly stating the Product Identity provisions around declaring compatibility, which is particularly weird given the apparent importance of the “don’t let hate speech tarnish the brand” angle – if that was a major motive, you would surely want to grandfather those restrictions in.

If nobody had seen OGL 1.1 before OGL 1.2 was wheeled out, I think there would still be issues with it. People would not be happy with the massive restriction in the range of Open Game Content available, they would not be happy with the restriction in the range of products which could use the OGL, they would not be happy with Wizards setting themselves up as the RPG Content Police. However, there may have been a more constructive back and forth with the community over the licence which might have led to it arriving at a better place.

However, OGL 1.1 was such an astonishingly sloppy and greedy draft that its leak more or less guaranteed that OGL 1.2 would be met with open hostility – and, indeed, it was so outrageous that it’s not really surprising that the leak happened in the first place. It’s one thing to ask the industry and hobbyists to accept a lot of these changes; it’s one thing to get caught asking for something greedy, say sorry, and then immediately ask for essentially the same thing again. It puts you in the position of the GM in this classic K.C. Green comic, and the end result (as delivered through the fedback form) was much the same.

Wizards Surrender Like Scolded Dogs

Wizards’ capitulation was near-total. They shut down the feedback process well before the initial cut-off date, because the feedback was so overwhelming and so firmly all pointed in the same direction that it was hardly worth continuing. The statistics offered by Brink made for grim reading; people hated OGL 1.2, people hated OGL 1.0a being taken away, people hated the virtual tabletop policy, and whilst a clear majority liked the idea of at least some of the SRD going into Creative Commons, there was a loud minority yelling that what was put on offer through that avenue simply wasn’t sufficient.

Wizards therefore declared they were going to leave OGL 1.0a in place, and as a goodwill gesture dumped the entire 5.1 SRD into Creative Commons under a CC-BY-4.0 licence. This essentially makes all material in that SRD available to use by anyone, forever, in commercial or noncommercial projects, provided they abide by the fairly simple attribution rules in that version of the licence, with no obligation to sharealike whatsoever.

What Wizards didn’t do – and indeed, were careful not to do – was to declare that OGL 1.0a was irrevocable (or use its modification clause to add in a statement that it is irrevocable). This means that in principle they are leaving the door open to attempting to deauthorise OGL 1.0a in future. Placing SRD 5.1 in Creative Commons is irrevocable – but there’s lots of Open Game Content available via OGL 1.0a which isn’t yet in Creative Commons, including any material in the 3.X SRDs which was not reproduced in the 5.1 SRD and a great swathe of third party content at that.

As such, the decision between Creative Commons and OGL 1.0a is not quite a no-brainer. Given that Wizards has lost a ton of goodwill, and has pointedly failed to declare OGL 1.0a irrevocable, I can imagine that many publishers will mistrust OGL 1.0a going forwards – and if they can put out their product by relying on Creative Commons for access to any D&D content they need access to, they will take that route instead. However, if they find they need to use something which was in the 3.X SRDs for whatever reason, there may be a temptation to use OGL 1.0a instead – despite the risk of Wizards later deciding to try and take it down again.

One major advantage of the Creative Commons approach is that it means you are not taking on any of the restrictions around Product Identity which OGL 1.0a wired in. This means that, because SRD 5.1 mentions in passing (for example) a vampire character named Count Strahd von Zarovich, you can put a vampire with that name into your content under Creative Commons, because they gave that idea away with the rest of the SRD. You can’t bring in his official, canonical backstory or personality or other such content, mind, because those details are not in the SRD – but depending on the module you are writing and how you are using him, you may not need to.

In particular, as Wizards’ own FAQ from 2004 noted, OGL 1.0a’s Product Identity provisions mean you give up the ability to indicate compatibility with Dungeons & Dragons to the extent you would have otherwise legally been able to under standard trademark law. There’s no such restriction in the Creative Commons route, however. Admittedly, some care would be taken to stay well within the safe harbours for indicating compatibility provided by the law – but you could do it.

Perhaps the attractiveness of the Creative Commons approach – and additional material potentially available down the line via ORC or other licensing arrangements by other companies – is intended to make it easier to deauthorise OGL 1.0a in future; if the industry by and large shifts away from OGL 1.0a, because nobody trusts it any more, then it becomes easier for Wizards to say “Well, if nobody’s going to use it, we’re going to take it off the table.”

The Creative Commons thing also makes the whole “we must stop people using our content to produce hateful products” thing seem like an utter red herring – because there’s no content clause under the Creative Commons licence that Wizards used. There is nothing stopping anyone from writing a story about Count Strahd von Zarovich, the vampire who patiently explains to the reader why Hitler was right – or a module on that subject which they promote as being compatible with D&D!

On the other hand, nobody ever needed Wizards’ permission to write hate literature with a superficial generic fantasy spin to it, with our without arbitrary RPG-like stats tacked onto it. If someone wants to be a shithead like that, they can just do it. And the advantage here to Wizards of the Creative Commons approach is that, precisely because anyone can use Creative Commons stuff provided they meet a few very modest requirements, Wizards can’t be held to have any responsibility for what people do with the stuff they have put in Creative Commons, any more than anyone else putting out Creative Commons material is responsible for Nazis making use of their material. Nobody can blame you for failing to stop something you couldn’t have stopped anyway.

What the Fuck Was the Plan Here?

The U-turn involved in Wizards’ big capitulation suggests a major shift in policy behind the scenes at Wizards. It is more likely that not that someone, somewhere in the power structure at Wizards/Hasbro, quite possibly at the level of the board of directors, has privately had to eat a big fat helping of shit over this. OGL 1.1 and OGL 1.2, between them, tried to push through an agenda and strategy that has now been comprehensively abandoned. Can we exercise a little Kremlinology and figure out what they were trying to achieve here?

Given that the Creative Commons solution is outright counterproductive when it comes to stopping people putting out RPG hate literature, but does means that the brand is less likely to be tarnished by that, we can assume that a certain desire for brand protection was involved. Someone wanted to achieve this through active policing, it now appears that this is impossible.

It also appears that someone really wanted to carve out some types of products from being produced under an open licence altogether – videogames in particular – which suggests that they at least believed they could be in a much happier position in terms of licensing rights out in that sphere by killing the right to make OGL products other than tabletop RPG support.

Given that some of the communication around this point from Wizards is really weird and evasive, it is not impossible that some licensee problems had already come up. It’s possible that Wizards were in negotiatins on a big money deal, or had run into some from of contractual snarl-up on an existing deal, over issues which OGLs 1.1 and 1.2 were trying to patch. This could have been related to preventing hate speech becoming associated with D&D (even at the distant remove of appearing in a product not actually able to directly claim compatibility with D&D), though it’s just as likely that someone at Wizards genuinely wanted to benignly push back against such content through the licence (or simply wanted to better protect the brand in order to look good and make opponents of the new licences look bad).

More likely, however, any snarl-up with a major contractual partner (actual or potential) seems more likely to revolve around the scope for people to claim products had stolen their ideas, or the potential for people to put out D&D-inspired videogames and the like. The former is a perennial issue in Hollywood; the latter may be something the current Hasbro leadership, consisting of as many ex-Microsoft types as they do, might be expected to put a high priority on. If issues like these had cropped up, that may explain why Wizards were being extremely careful about their public statements on the matter – because publicly disclosing the sort of private negotiations in which those problems could have arisen is very much a no-no.

At the same time, the total capitulation – and the dumping of SRD 5.1 into Creative Commons – feels like it would exacerbate any such issue that had arisen. It doesn’t stop hate speech. It doesn’t stop people making videogames. It doesn’t stop people from claiming their ideas were stolen. In fact, it’s another means by which all of those things can end up happening. Did the other party throw their hands in the air and walk away, or did they say “fuck it, do what you want to calm down your fanbase, it’s not worth the aggro”? We may never know.

Lastly, I think the fact that the 3.X SRDs are still available under OGL 1.0a bugs the shit out of some people behind the scenes at Wizards. Perhaps it bothers them because it makes it easier for people to just keep playing that edition (or, via retroclones, older editions), rather than keeping up with the current edition and buying current products; one of the perennial problems the field has faced ever since the original D&D white box hit the market in 1974 was that people could just obtain one rulebook, never buy another product ever again, and participate in the hobby forever. From a monetisation point of view – and we know the Hasbro board believes that D&D is undermonetised – that’s a problem.

What of the Future?

Whatever the politics are behind the scenes, it’s clear that the reaction to OGL 1.1 and 1.2 has prompted a big rethink. However, we’ve been here before: though Wizards didn’t try to kill off OGL 1.0a when they brought out 4E, they did put 4E out under a different licence and hoped that third parties would go along with that. The lessons learned from that seemed to be fresh in their minds in the early 5E era – hence it using OGL 1.0a again – but the turnover of personnel means that institutional memory has likely faded. Similar churn in the future may mean we end up in situations like this again.

That being the case, it seems likely that well-informed third parties will avoid the OGL going forwards unless they have a reason to use it which is sufficiently compelling to override the risks. The irrevocability question has not been definitively settled, and since Wizards has had several chances to put that to bed and declined to, there is little reason to expect them to make that concession – and without that I just don’t see them bridging the trust gap this whole debacle has opened up.

There will probably be people putting out hate literature under Creative Commons or the OGL, because there’s already people putting out racist RPGs (Varg Vikernes, for instance, puts more energy into his Aryan-tastic Myfarog RPG than into making new Burzum albums these days). Someone stanning for Wizards will probably blame the outcry over the licence for this. Nonetheless, I think the objection would be wrong-headed; there are ways to push back against hate content without breaking explicitly made promises, which is what deauthorising OGL 1.0a amounted to in light of that 2004 FAQ. Kyle Brink, in his statement announcing the abandonment of Wizards’ plan to replace OGL 1.0a, explicitly said that because they couldn’t deauthorise that, they’d need to rely more on the community calling out and shunning bad actors, which is fine and arguably the only strategy that could work in the long term anyway.

The ORC – the new licensing setup arranged by a group of companies spearheaded by Paizo, which will be managed by a neutral third party and which will provide a genuinely open creative environment (we are promised) has not come out yet – Paizo were talking about February for its release, but the cancellation of Wizards’ OGL 1.2 plans means there’s less urgency than there was. I don’t regard the delay as a bad sign – with this sort of thing, it’s best to take a while and make sure you’ve got the draft right. Goodness knows, that would have helped Wizards.

Eventually, the churn of executives at Hasbro/Wizards will continue. It seems likely that the current leadership will cycle out, particularly given the investor misgivings about their handling of this and other situations. In will come people with new perspectives. Unless we are lucky, they won’t be participants in the hobby, and they won’t understand the community’s priorities. The corporation will eventually do something goofy again in the future, because that is how big publicly traded companies work. The community, whose institutional memory seems to be somewhat better than Wizards’ when it comes to these matters, will be all the more emboldened to push back, having won this emphatic victory.

To go back to the analogy I have been weaving through this article series: the war has ended with an abrupt ceasefire. After the residents of the borderlands, refusing to be annexed as a full Imperial province, assassinated the newly-appointed Governor Wunp Oin Twun before they even estabished a regional headquarters, they barricaded the passes and refused entry to the replacement Governor Wunp Oin Tuuh. The previous voice of Imperial authority in the borderlands, Commissioner Wunp Oin Toeway, has been reinstated – but the goodwill and reputation for fair dealing the Commissioner established with the settlers has been squandered, because they no longer trust that the empire will honour the Commissioner’s promises.

Back in the Imperial capital, arguments rage behind closed doors. Fingers are pointed. Blame is assigned. Concessions are made to prevent the unrest in the borderlands damaging relations with other nations like the Holy Wood. An entire chunk of the borderlands has been ceded entirely to the Creative Commune – a flank where, notably, the defensive cordon around indications of compatibility is weak. Settlers are already defecting to the Commune, or lending their fealty to a new Orcish clan that has arisen beyond the border.

It is not the sort of crisis which you would expect would lead, by itself, to the collapse of the empire. Empires simply do not collapse that quickly.

But it is the sort of crisis which can be a symptom of an empire in decline – an empire where more and more such crises are to be expected as time goes by, until the institutions of the empire are undermined completely.

Orion Black’s open letter was worrying, wasn’t it?

Weis and Hickman sure had to go through a lot of hassle to get their new Dragonlance novel published.

Gale Force 9 certainly had a lot of issues with their licence.

That Hadozee thing was certainly embarrassing.

I hear there was some kind of fuss about a $1000 Magic: the Gathering booster.

Good thing those are all isolated incidents, and not markers of systemic problems within Wizards/Hasbro as a whole, right?


2 thoughts on “The Good, the Bad, and the OGL-y, Part 3: Repairing the Pax Arcana

  1. RogerBW

    (My comments on earlier posts in this series don’t seem to be visible. Spamtrap?)

    With all this specific calling-out of NFTs as a Bad Thing (which I agree they are), it’s worth bearing in mind that Hasbro was selling at the time, and continues now to sell, NFTs related to other IPs (e.g. Power Rangers, Starting Lineup). So one suspects “NFTs that we don’t control” might be more to the point.

    Warranties and Disclaimers – once again we see the thumb on the scales. I’m pretty sure that if they tried this in E&W law it would come under Unfair Contract Terms provisions; of course US law in general is much more flexible on this, generally ignoring power imbalances between contracting parties.

    Also, it’s been pointed out recently that a GM could reasonably be said to be “performing”, and the anti-drag laws could easily be applied to non-cishet GMs too. (Though of course, the US right has always been entirely sensible and reasonable in its attitude to RPGs.) This could readily extend “that GM gets arrested and convicted because they ran a game at a convention in the wrong state”, already bad enough, via the illegal conduct provision to add “and the company they were working for loses its entire OGL1.2 business”.

    Miscellaneous – it’s highly unusual, though not un-heard-of, to say “if any part of this contract is invalid, the whole thing is void”. To say “we may decide at that point whether it is or not”… I don’t think I’ve ever come across that at all, and I suspect that that clause itself might be regarded as invalid.

    Since GPL and Creative Commons and GFDL, there’s much less need for a super special licence for RPGs only. It’s a truism among computerists that if you write a new licence for your free software project you’ve already condemned it to failure, because users already know how GPL and other licences work, and they don’t want to spend time and lawyers on finding out how yours is different.

    A specific difference from the videogame world: sure, there are mod makers, but it’s easy to see that world as “publishers” and “consumers”. But every RPGer I know sees themselves as a writer too, even if they aren’t doing it yet.

    1. You had one comment in the spam trap on the second article, which I have now freed. Dunno if there were any others.

      Re: GMs as performers – I think it depends slightly on context. At a home game of friends only? Probably not. At a con? Maybe. As a professional GM or a streamer? Seems likely, doesn’t it?

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