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Wizards of the Coast Threatened to Detonate a 20-Year-Old Legal Time Bomb, But It Was All a Misunderstanding

Dungeons and Dragons LogoFor those of you who are involved in tabletop gaming and Dungeons and Dragons specifically, it’s been an interesting couple of weeks.  Wizards of the Coast (publisher of D&D) seemingly threatened to embark on a scorched earth campaign against the industry, then wet its pants and said it was all a misunderstanding.

Was it?

Probably not.

If your exposure to the world of legal licenses begins and ends with explaining the Gnu Public License to your boss, you might be amused to know there’s been a parallel evolution of libre licensing in the tabletop roleplaying world.  Read on.

The Open Gaming License

D&D began in the 1970s and by the year 2000, owners Wizards of the Coast were planning to release the 3rd Edition.  They broke with previous practice and release the game under the Open Gaming License (OGL).  This was ersion 1.0a to be specific, and as you’ll see, we need to be.  A large body of material (called the System Reference Document) was freely licensed to anyone who wanted to use or remix it.

If you wanted to publish a D&D adventure, expansion, or supplement, you were allowed to use a vast library of rules, monsters, terms, and game lingo under a very libre license.  Some core brand-identity things such as adventures, worlds, characters, and some rules were kept as WOTC-only  (e.g., you couldn’t use the name Mordenkainen) but a vast amount of material was released under the OGL.

This lead to a huge explosion of third-party publishers.  Today, sites like DriveThruRPG.com have tons and tons (and tons!) of D&D-compatible games, extensions, and material.

In 2007, WOTC stumbled when 4th edition was released.  Not only was the game itself controversial with the D&D players (and is still is) but WOTC published it under a new Game System License, which was far more restrictive and less publisher-friendly than the OGL.  This lead to publisher Paizo to take the SRD, add in the missing pieces with its own rules, settings, and adventures, and publish the Pathfinder RPG, which continued the 3rd Edition ruleset.  Pathfinder grew into a huge community apart from WOTC and today Paizo’s sales are in the tens of millions annually (though this is not all Pathfinder).

With 5th Edition (2016), WOTC seemed to have learned their lesson and returned to the OGL.  Once again, the ecosystem flourished.  All of the GSL controversy evaporated and the community calmed down.  Paizo’s Pathfinder continued as a sort of Protestant denomination in the broad D&D church and in general that worked for everyone.  Most people played 5e and were quite happy with it and there was tons of content.

Terms and Conditions

Before we get into recent developments, let’s highlight some key points of the OGL 1.0a.  As the Dungeon Dudes pointed out, it’s not a long document: about 900 words and fits on a single page if you use finer print.  The agreement essentially states that you’re allowed to use anything in the SRD, you have to give credit, and you can’t use what’s not in the SRD.

Note point 9:

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

This sounds very much like the GPL.  Most of us would interpret this (and certainly publishers have for 20 years) to say “down the road, we may change terms on future products, but for what we’re publishing here in the SRD, these terms cannot be changed by us.”

Indeed, WOTC once published a FAQ on the OGL (which is available on archive.org) in which they clarified things:

Q: Can’t Wizards of the Coast change the License in a way that I wouldn’t like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

We’re good, right?

OGL 1.1

In 2023, Wizards of the Coast is expected to release D&D “6th Edition” which they are branding as “D&D One”.  In response to a question, they stated in December that D&D One would be released under “an OGL”.

This raised eyebrows, which nearly went into orbit when a copy of the proposed OGL 1.1 was leaked.

Let’s start by noting that OGL 1.1 clocked in at 9,000 words, an order of magnitude increase in legalese.

OGL 1.1 explicitly states that OGL 1.0a is “no longer an authorized license agreement”.  You probably read the word “authorized” in point 9 quoted above as a past-tense, completed-action adjective.  “You may use any authorized version of this License” to me sounds like I can use any version in history.  WOTC apparently meant “we determine which versions are authorized and we’ve deauthorized 1.0a”.

This isn’t a mistake or some paranoid analysis.  Gizmodo quoted the leaked agreement as saying “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.”

Now you’re probably asking yourself, well, if 1.0a is dead, why shouldn’t publishers just publish under the OGL 1.1?

Probably because it was written in a commercially rapacious fashion.

For example, there are now mandatory revenue-tiered royalties that publishers will need to pay to Wizards of the Coast.  These are phrased as revenue royalties: “whether they’re profitable or not”.  These are hilariously termed “Initiate Tier,” “Intermediate Tier,” and “Expert Tier”.  At scale, WOTC is demanding 25% of revenue.  And apparently there are serious reporting criteria as well.  Wouldn’t it be fun to be audited by Wizards of the Coast accountants looking for more revenue…

Also gone is any notion of community publishing or free content.  The license requires prior registration with WOTC before any publication, including description, contact info, your publishing plans, etc.

There’s also some bizarre commercial complications.  As reported, if you raise money on Kickstarter for your project, you have to give WOTC 20% of it, which is already ridiculous.  But if you raise money on any platform it’s 25%.  Why?  Who knows.

We Saved the Best Part for Last

If you look at the original OGL, point 4 reads:

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

In 1.1, things are a bit different:

  • You grant WOTC a “nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license” to use your content “for any purpose”
  • Meanwhile, WOTC can ““can modify or terminate this agreement for any reason whatsoever, provided We give thirty (30) days’ notice.”

So essentially, once you sign up and publish under this license, WOTC can turn around and publish anything you publish under its own banner.  Have a great idea?  WOTC may decide it’s so good it belongs in a future adventure they publish and make money from.  Heck, they can use your art and text as well.  And then they can terminate your license, retaining the right to publish your creations perpetually while you are forbidden from doing so.

Ha Ha…Just Kidding!

On January 13th, WOTC released a “OMG please stop kicking us” blog post.

“It’s clear from the reaction that we rolled a 1,” they said.  They have fully retreated from OGL 1.1, even though it’s never been published.

The next OGL will contain the provisions that allow us to protect and cultivate the inclusive environment we are trying to build and specify that it covers only content for TTRPGs. That means that other expressions, such as educational and charitable campaigns, livestreams, cosplay, VTT-uses, etc., will remain unaffected by any OGL update. Content already released under 1.0a will also remain unaffected.  What it will not contain is any royalty structure. It also will not include the license back provision that some people were afraid was a means for us to steal work. That thought never crossed our minds.

I’m almost half-tempted to believe this.  Imagine this scenario: WOTC’s in-house counsel is not experienced in this area (last revision was 20 years ago), so they hire a contractor.  Naturally, an attorney coming to the task “cold” – ignorant of history, tone deaf to the community, not versed on the nuances of applying licensing terms to tabletop gaming – will reflexively draw up the contract to maximize the client’s advantage.  Maybe this was a leaked first draft that some junior staffer saw and thought “OMG, this is totalitarian” and shot it off to the press, unaware that management was going to shoot it down.

Half-tempted.  Except for two reasons.

First, my belief fails is when I read that the leaked text comments how the original OGL “wasn’t intended to fund major competitors”.  This is obviously input from someone in WOTC management.

Second, the legal department and management would have no motivation to leak.  Leaks always happen because someone wants them leaked.  In this case, the document would have had to be circulated beyond the upper levels for some unnamed polyhedron-wielding Snowden to become aware of it and drop a dime to the media.  This implies leadership had already reviewed it.

Three days ago, an exec released a new statement and began to survey community input.

On or before Friday, January 20th, we’ll share new proposed OGL documentation for your review and feedback, much as we do with playtest materials.

After you review the proposed OGL, you will be able to fill out a quick survey–much like Unearthed Arcana playtest feedback surveys. It will ask you specific questions about the document and include open form fields to share any other feedback you have.

The survey will remain open for at least two weeks, and we’ll give you advance notice before it closes so that everyone who wants to participate can complete the survey. Then we will compile, analyze, react to, and present back what we heard from you.

And now there’s a FAQ about OGL 1.2.

So it appears there will not be a titanic legal fight for the ages, or a scorched earth.  Instead WOTC will spend 2023 repairing damage instead of launching their critical new product.

Lesson Learned?  Doubt It

D&D is a valuable brand, but it’s one of those brands that comes with a community.  People who drink Coca-Cola don’t get together to talk about their soft drink.  Probably less than a tenth of 1% of Toyota owners ever join any kind of enthusiast forum.  But with Dungeons and Dragons, a very high percentage (I’m thinking 90%+) discuss the game in lively online and local communities.  The people buying D&D in 2023 are talking about role-playing games on social media and their local game stores.  They’re the captive community for WOTC products and WOTC needs to market to them primarily.

Sure, there will be newcomers to D&D (and actually with 5th Ed WOTC did some effective outreach marketing).  But a roleplaying game can’t be launched to a broad consumer market with a television ad campaign.  It’s a complex, non-mainstream product.  Launching a new version of D&D probably has more in common with bringing a new high performance fishing reel to market than a new automobile.

WOTC is in the commercially envious position of owning something a fanbase feels is precious.  The fanbase feels ownership in the product.  They feel they need to be listened to, and in this case, they’re right because without them, WOTC’s products will flop.  Had WOTC had any kind of substantive discussions with the community they would have known this kind of reaction would come swiftly and loudly.

Maybe WOTC regrets the OGL.  At this point, it’s probably impossible to judge the economic outcome of the OGL decision in 2000.  Did WOTC ultimately make more money by releasing the SRD under the OGL?

Sure, if only WOTC can publish D&D material, it gets 100% of that money.  But in the OGL/SRD model, the creativity of the entire community is leveraged.  Instead of only publishing whatever WOTC’s maximum books per year on D&D could be, call it X, in the OGL/SRD model X,000 books are published.  The D&D ecosystem becomes ever bigger and more attractive to gamers, and more difficult for competitors to imitate.  In theory, every supplement produced by third parties makes the essential D&D core rules more valuable.  It also avoids the nasty business of suing people and policing the community.  In fact, the community self-polices because the rules are clear.

On the other hand, WOTC board members are probably thinking “Paizo’s Pathfinder wouldn’t have happened without that idiotic OGL.”

It’s a lot more accurate to say that Paizo’s Pathfinder wouldn’t have happened without the 4th Edition reversion of the OGL (to the very restrictive GSL).  The Pathfinder story is WOTC falling off the virtuous path of freedom rather than conniving competitors.

Here’s how I see the history:

  • OGL: Chaotic Good
  • GSL: Neutral Evil
  • OGL 1.1: Lawful Evil
  • OGL 1.2: TBD


1 Comment

  1. MrNiceGuy:

    If you’re interested… What about the 800 pound ORC (License) n the room? Open RPG Creative License.

    Link to Paizo blog post: https://paizo.com/community/blog/v5748dyo6si7v

    January 23, 2023 @ 7:37 am | Reply

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