The story of D&D's revocation of its Open Gaming License has started hitting mainstream outlets. It's a story I've been following very closely.
My friend and I have a (very, very) small-time publishing company, that has once published something and made grand plans of publishing more. I think we've earned around $60, in total. It's really just a hobby. But this is sort of the point. A major part of D&D, of the fun of it, is being creative and imagining new things, designing new things, and sharing them with other people. This is something every DM does, to one degree or another. That's why I've been following the case.
For those who haven't been following, I'll give a quick summary of the situation and why this matters.
Dungeons and Dragons is the flagship tabletop roleplaying game. The brand is often used generically, like coke or kleenex or chapstick. When I play DCC with my friends (a different game), we just say we're playing D&D.
The name "Dungeons and Dragons," or "D&D" is a trademark of Wizards of the Coast (WOTC), which is itself owned by Hasbro, the toy conglomerate.
Since the year 2000, WOTC has published their game rules under the Open Gaming License (OGL), the center of our controversy. This allows anyone in the world to freely copy anything that has been released under the license and dubbed "open gaming content." As a show of goodwill, the overwhelming majority of the actual rules of D&D are publicly available for anyone to use, under the terms of the OGL.
That was OGL 1.0. A new OGL 1.1, now renamed OGL 2.0, is now claiming that this is revoked. (Treating OGL 2.0 as a different thing is merely a PR move, so I am going to continue to talk about both 1.1 and 2.0 as being OGL 2.0)
When the OGL 2.0 was first announced in December, everyone was calm because it is not going to change anything. We can still keep using the OGL 1.0. This was promised by WOTC, way back when. They promised (here), even if they change the OGL with new updates, the original will always be available for use, and will always be valid. Nothing to worry about.
WOTC's lawyers think they have found a loophole, and they are now claiming the OGL 1.0 is no longer valid.
The Explanation of the Anger
There is a lot of anger around this. Let me explain it, as I don't think even WOTC understands.
The issue is not that WOTC owns the IP and the trademark D&D and they aren't letting people use it. It's their IP, they made it (well... paid for it...), that's fine. I don't want anything to do with their IP, actually.
If WOTC wanted to release this new version of D&D (which they are calling "One D&D") and put it under the most restrictive license possible (and it's hard to imagine one more restrictive than OGL 2.0), that is completely their right. I have no right to be angry about how they lease their IP.
The issue is not the royalties, not their ability to cancel your entire product line at their discretion, not the agreement to license your entire IP to them forever with no royalties, not signing over your right to ever sue them. New product, new license, is perfectly fine.
That's not why we're angry.
We are angry that WOTC are in breach of contract.
WOTC made a legal promise, in legal writing and clarified through official communication, that developers could always rely on content released under OGL 1.0a to always be openly licensed. People trusted them, made business decisions, invested time and money, based on those promises. They developed content for D&D, which led to a thriving community around the game that sees it enjoying such amazing sales. That was the deal. D&D would gain a community of great content around it, benefiting its brand through network externalities. And the people doing this would get to use all of the game mechanics of D&D without needing to worry about legal action or future revocation.
WOTC lied. WOTC is breaking their word.
So while WOTC is free to put their IP under whatever kind of license they want, they chose and promised to put some of their IP under an open and unrestricted license, promising it would always be available. And now they are changing their mind.
I mentioned they're calling this One D&D. It is impossible to think the nerds at WOTC didn't know what they were doing when they called it that. It can only be interpreted in light of the One Ring from the Lord of the Rings. Sauron, under the guise of Annatar the Gift Giver, gave powerful rings to earn the trust of elves, men, and dwarves. Once he had their trust, he used these gifted rings to bind all the other races to the will of the One Ring. The One D&D is exactly that, but with gaming licenses. The terms of the OGL 2.0 are insulting, repulsive, and essentially regard 3pps as unpaid IP slaves.
This is what the outrage is over. It is because WOTC lied, and is using the brand we built for it plus the threat of a lawsuit to force people into compliance to impossible terms.
Birds-Eye View of the OGL
The OGL 1.0 was architected in part by Ryan Dancey, who has since given several interviews on youtube explaining not only how the OGL works and clarifying its revocability (spoiler: it's not), but also explaining clearly the business and legal strategy behind the OGL, beyond just getting great content for D&D. Here are some recent interviews:
Let me summarize or paraphrase what he's said in the interviews.
WOTC own the name of the hobby, D&D. They own the rights to all of the official rulebooks. Their business depends critically on the fact that they alone can print the big red "Dungeons & Dragons" on the cover. New players don't want to play some generic game. They want to play the game. The official game. So that is the game they will buy. They will buy D&D.
If you have a headache you might want to take Advil. But if you see store-brand ibuprofen on the shelf, and it tells you "Compare ingredients to Advil," and it is half the price... you'd probably buy it. If it's just as effective, why not?
It is perfectly legal to use someone else's trademark or brand name to describe your own product, either by comparison or compatibility, assuming it's an honest comparison. That is why the store brand can saying it's the same thing as Advil. It's why 3rd party car parts can tell you the brand of the car they go to.
Likewise, if you're looking for D&D, and you see the $60 per book price tag (and there're three books), then on the shelf you see another book which says on the label "Same game rules as 5th Edition Dungeons and Dragons", and it cost less than a third of the price... you might buy the generic.
Legally, whether or not you can print a book which exactly reproduces the game mechanics of 5th edition D&D is a tricky question. Trickier than you'd think. There are two obvious ends. Obviously, you can write a game that involves rolling dice and describing actions, pretending to be knights or dwarves fighting dragons. Absolutely none of that can be copyrighted. Also obviously, you can't word-for-word copy large or important sections of the D&D books and sell them as your own.
The US Supreme Court has decided that game mechanics cannot be copyrighted. They can be protected only under patent law. Not copyright law. None of the mechanics for D&D have been patented, and I doubt at this point that they even can be.
However, these rulings referred to games like Monopoly or Scrabble. They have not looked at games as complicated as Dungeons & Dragons. It is not known how much of the rulebook is creative expression, or how much is procedure. Are the six stats (STR, DEX, CON, WIS, INT, CHAR) a method, or are they an expression? The only way to decide this would be through a copyright law suit.
For the 3pp this would be extremely expensive. Millions of dollars and years to get a judge's decision. None of them can afford this. The kid in college who just wanted to share his elf-maze can absolutely not afford this. And even after all that, there is no guarantee at the end that the 3pp would win.
For WOTC, this is also expensive. And it runs the risk of losing everything. The most likely outcome of a trial on this, one that goes all the way to summary judgement, is that nothing in the D&D rulebook can be copyrighted, except for exact wording and proper names. None of it. It is all procedure and method, which can only be protected under patent law. All of it can be reproduced, except for the artistic expression and choice of words. This is the worst possible situation for WOTC. It immediately reduces them from the flagship RPG, to just another publishing pushing material for the their cute Forgotten Realms setting. It only takes one tiny two-guys-and-Adobe outfit who just stick to their game to make this happen.
Both 3pps and WOTC stand to lose everything in a lawsuit. It would be good for everyone involved, both parties, if there were no such lawsuit, and if instead some nice even ground could be found where everyone was safe to play.
That is what the OGL 1.0 is. It provides both 3pps and WOTC with clear rules of engagement. Through the OGL, WOTC releases their own set of rules, known as the System Reference Document (SRD) which are all of the game mechanics needed to play D&D, but stripped of any artistic expression or intellectual property. Through the OGL, this SRD becomes "Open Game Content", which can be used by anyone else using the license. Under the OGL, 3pps could publish exact replicas of the D&D rules and sell these exact mechanical replicas for profit. This is what WOTC gives up under the deal. In exchange, the 3pps are forbidden from comparing their games to D&D, or to any other game using the OGL that does not give specific permission.
It's important to note, anyone can release Open Game Content, not just WOTC. Plenty of other games have released rulesets through the OGL to make their own games publicly available, as well.
The 3pp is free to publish with legal certainty. WOTC has getting is brand protection. This allows both parties to do mostly what they want. Everyone is happy.
In order for this to work, there must be trust. People who begin relying on the OGL must trust that it will always be there. Otherwise, if it can later be revoked, it does not serve its purpose.
That is (in essence) how Ryan Dancey explains the situation.
The Battlelines Drawn
Now that you understand how the whole thing works, you can understand why WOTC's recent move to change the terms is so colossally stupid as a business decision. It is colossally stupid as a PR decision, and colossally stupid as a legal decision, but also as a business decision.
There currently exist on the market games which are near-exact mechanical copies of older versions of D&D. Games such as OSRIC, Swords & Wizardry (see the S&W creator's statement here; he is a lawyer), Old-School Essentials, and others. These games do not really use anything from the SRD, so really they could publish on their own and not actually be violating WOTC's copyright. But they publish with the OGL anyway, just to be safe. Publishing under the OGL anyway prevents them from writing "Reproduction of 1st Edition Advanced Dungeons & Dragons" on the cover. Instead they have to say something like "reproduces old-school gaming from the late 1970s."
Since there is no reason any sane business-person would ever publish under OGL 2.0, and since WOTC is claiming that OGL 1.0 is no longer authorized, most of the publishers of these games are just removing the OGL 1.0 altogether. May as well be hanged for a sheep as a lamb, right?
It's going to be a lawsuit. WOTC has ensured that this is now the only way to resolve issues with WOTC. They have ensured this, by offering an insulting and unacceptable OGL 2.0 as the only way to keep publishing without legal action.
WOTC has already lost brand protection, as now all of those retroclones reproducing old rules (or even games cloning the modern rules) might as well say that they reproduce Dungeons & Dragons. In fact, every single TTRPG can go ahead and print something like "Compare to Dungeon and Dragons" right there on the cover, under standard nominative fair-use of the D&D trademark.
WOTC also stands to lose absolutely everything through one of these trials, as all of the 3pp and majority of fans are banding together in what can only be, ultimately, a drawn-out copyright lawsuit that will decide the issue of how much of D&D can be copyrighted. And they may lose the entire ranch.
This brings the important point of a copyright lawsuit, opposed to a contract lawsuit.
Contracts and Copyrights, and the Nightmare Scenario
I'm not a lawyer. But I know enough to know it's not just one big pile of "law", but that there are distinct areas of law. There's criminal law, and there are particular specialties within criminal law. There's civil law, and there are distinct specialties within civil law. There are contract attorneys, family attorneys, IP attorneys, patent attorneys, personal injury attorneys, tax attorneys, etc. and etc. Lawsuits in one area of law are not the same as lawsuits in another area of law.
When news of this first broke, people wanted to know how bad this could be. Naturally, the voices most competent to speak to this are IP lawyers. The area of copyright/IP law just happens to be the most convoluted, complicated area. This means any lawsuit over copyright requires tons of discovery and research, which translates to time and money. Major industries have their livelihoods at stake in copyright lawsuits. The prices run into the millions, and could take years to get to a final answer.
Here are some places where IP lawyers have weighed in:
- Post from creator of ACKS, after speaking to an IP lawyer. The estimate was $4 million.
- Viral post from "MyLawyerFriend", an IP lawyer, who basically said there is no way to win.
Upon listening to the IP lawyers weight in, everyone immediately freaked out.
Even if you've never touched WOTC's IP, they can claim you did and simply sue you, for no reason, in copyright court. They have deeper pockets, so they can drag out the lawsuit over years and years, until WOTC bleeds you dry.
There is no publisher of fantasy roleplaying games who can even dream of approaching that kind of lawsuit --- remember, the OGL 2.0 is considering more than $750K in revenue (not profit) to define a "big" company. Don't even think about millions of dollars. You will either go bankrupt over legal fees, or simply give up and settle, even if you are completely within your rights.
WOTC can then put legal pressure on all means of distribution. The "Amazon of RPGs" is a site called DriveThruRPG, which hosts tons and tons of fan-made content for all sorts of RPGs. There are competitors, like itch.io. And there are print-on-demand stores like Lulu or others where you can buy 3pp content. WOTC can ask all of these to shut down any material published without the OGL 2.0, threatening to sue. None of these people want to face a lawsuit with WOTC over your $5 pdf. They will just comply.
This is the nightmare scenario. WOTC becoming a bully over its alleged IP, and publishers having no recourse for their rights.
I'm not doubting the IP lawyers. If you had to challenge WOTC over a copyright claim, I believe them that it will be a horrible nightmare. As horrible as they can imagine.
However, I do not think that is the situation we're in. I don't think it is necessary for anyone to enter into a lawsuit with WOTC over copyright.
The reason the OGL is so beneficial is because it takes the issue of copyright dispute, and turns it into an issue of contract dispute. So rather than trying to legally fight on copyright grounds, it should be fought on contract grounds.
Copyright lawsuits have to settle things about creativity and expression and inspiration, things that are naturally vague and impossible to pin down. But contracts are supposed to be simple and clear-cut. That's why we make them. They simplify human interactions to terms that have specific and enforceable meanings.
WOTC is trying to violate that meaning and breach their contract.
Without the OGL 1.0 as it was written, intended, and used for 23 years, the nightmare scenario is inevitable. But if we stick to the OGL as written, the path forward is clear.
The Way of The Bench Trial
The actions of Tyler Thompson, a lawyer and game publisher who represents Sad Fishe and Prudence Holdings, show exactly how simple this whole thing actually is. Tyler has written a letter to WOTC, which I think everyone worried needs to read through. Ryan Dancey has also expressed, this can be a matter of basic contract law. The kind of contract law you learn in your first year of law school. The kind of open-and-shut case that has so many centuries of precedence and protections that it impossible to even imagine what WOTC thinks they are doing.
The Language of the OGL
Section 1 gives definitions, like "contributor" or "trademark". The two most important definitions here are "product identity" and "open game content." The product identity are the things that artistic distinctives, such as the setting, the names of monsters, the cool trap you invented, the layout of the dungeon, the artwork you use. Things designated product identity are not shared by the OGL. The open game content are the things that are shared. Importantly, WOTC shares the SRD which contains the bare-bones rules of the game. You can use those.
Note, this is probably what you could do anyway. You couldn't use beholders or displacer beasts anyway, and you could probably use the d20 core mechanic anyway. All that's really being offered is the legal certainty.
Note, the OGL is not specific to the SRD. The OGL is not a license for the SRD and only the SRD. It is a license for anything released as open gaming content under the OGL. The SRD just happens to be a very important piece of open gaming content.
Sections 2-3, 5-8, 10-12 explain what the license is and how to use it properly. At the moment, the important sections are 4, 9, and 13.
Section 4 reads in full:
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.
Section 9 in full:
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.
Section 13 reads in full:
13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.
I have put some key terms in bold. The entire license can be read in the back of basically any roleplaying game material.
The Argument of WOTC
Here is the argument of WOTC (or at least of unaffiliated people arguing for WOTC).
The contract says it is perpetual. To a layman, that means the same thing as "it will never end." However, for a license, this just means there is no set end date for it. To mean literally that it will *never* end, it should also say "irrevocable." If it isn't irrevocable, then it can be revoked, which means the person issuing the license can end it at any time. That's what IP lawyers are saying, and they probably know what they're talking about.
WOTC's own argument hinges on the word "authorized" in section 9. Under their argument, the use of this word grants them the right to authorize or deauthorize licenses as suits their own business interest. Therefore, OGL 1.0 is no longer authorized, and the only way to utilize the 5th edition SRD is to use the OGL 2.0.
You can see this in the leaked OGL 1.1, in a single offhand sentence:
A. Modification: This agreement is, along with the OGL: Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement. We can modify or terminate this agreement for any reason whatsoever, provided We give thirty days’ notice.
Or in the purported (unconfirmed) leak of OGL 2.0 (see in this video), which says:
Can I keep using OGL 1.0a to develop fifth edition content?
No. OGL 1.0a only allows creators to use "authorized" versions of the OGL, which allows Wizards to determine which of its prior versions to continue to allow use of when we exercise our right to update the license. As pat of rolling out OGL 2.0, we are deauthorizing OGL 1.0a from future use and deleting it from our website. This means OGL 1.0a can no longer be used to develop content for release.
It's worth pointing out how confused WOTC's apparent understanding of the OGL is. Yes, the OGL does license a portion of the D&D rules, but it's not intended exclusively to license those; other sections explain how anyone can license game rules through the OGL, and many companies have. WOTC seems to conceive of the OGL solely as a means to use D&D's SRD. The SRD is just one piece of open gaming content under the OGL. When WOTC says the OGL 1.0 is "unauthorized," what does that even mean for everything that isn't their SRD?
That is basically their argument, or at least what of their argument we can see from the leaks of OGL 1.1 and OGL 2.0. Their argument is that a word is ambiguous, so it must mean they have the power to unilaterally cancel at will without consequence.
The Argument Against WOTC
This was laid out clearly by Tyler Thompson in his letter above, and I've heard reiterated by other lawyers. Let me lay it out in my own, non-expert words.
First, irrevocability. This is a key word people are focusing on. The OGL doesn't say it is irrevocable. That's likely because it can be revoked. It says so in the contract. The terms under which it can be revoked are laid out in Section 13, the termination section. None of those terms includes "the whims of WOTC."
The convention that licenses must always include the word "irrevocable" to indicate they can't be ended on a whim developed after the OGL was originally authored -- remember that it's over 20 years old. But it can be revoked, explicitly, and the reasons for revocation are listed. It's a pretty short list. WOTC is now trying to revoke (or terminate) the license for reasons other than those granted by the license itself, even with people complying with the contract as it was written.
Second, authorization. This is another key word. Within the context of the license, it is apparent what this means. For instance, Section 2:
2. The License: This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.
Clearly an "authorized" license is one that conforms with section 2, one that hasn't been arbitrarily altered by some guy on the internet, but only by the allowed process. The allowed process is given in Section 9, where the word authorized appears. WOTC can change the license and issue a new one. This is what makes them authorized; they are the ones WOTC puts out according to sections 2 and 9.
Within the context of Section 9, it is clearly saying the exact opposite of what WOTC is saying. WOTC is claiming that a newer license can deauthorize a newer one. In fact, it's saying both licenses are authorized, the new and the old, and distributors can choose either.
There is no section on deauthorization, nor any power granted for deauthorization. The concept of deauthorization doesn't even occur in the text of the document. That is because deauthorization is not a power that WOTC originally wanted to hold for themselves when the license was authored. It is axiomatic to the OGL 1.0 that it cannot ever be deauthorized, or else it fails at its only goal.
Given the clear explanation of the purpose of the OGL, it is not fit for purpose if it can be revoked or deauthorized.
This word, "authorized," only appears in Section 9, and is not explicitly defined. Implicitly, it is clear what it means within the license. However, because it is not defined, it is ambiguous. There are guidelines for interpreting ambiguous language in a contract. For instance, interpretation of a contract drafted by a single party usually goes against the drafter. Interpretation will also take into account original intent, past communications, or other past precedent pointing to a specific meaning of the language.
As far as original intent, both of the architects of the license are alive, and have even been quite vocal about the intent. Ryan Dancey and Brian Lewis were the brains behind it. Dancy made the strategy of an open license and explained what it needed to do, Lewis penned the words. Both are clear that it can be revoked only for the reasons listed in section 13 and that it can never be deauthorized. In fact, Lewis is currently on the legal team of Paizo, one of the major 3pps preparing to sue WOTC.
As far as past communications, WOTC has had available on their own website for decades an FAQ explaining the OGL and how businesses can use. This FAQ assures businesses that even if WOTC issues a new license, the old licenses will always be available for use, so that they can always choose which license to use.
There are 23 years of past business precedent showing WOTC has always interpreted the OGL to be irrevocable, and that for 23 years everyone else has assumed it was irrevocable, and conducted business under this assumption. One of the most obvious instances was during the time of 4th edition D&D, when WOTC had to learn this same lesson for the second time (the first was in the 90s). The rules for 4th edition were not released under the OGL, but under a much more restrictive license called the GSL. The GSL shares many things in common with the OGL 2.0. Most publishers found those terms unacceptable, so they did not publish under them. As a result, the D&D brand nearly died. The entirety of the market share went instead to a competitor of WOTC, called Paizo. Paizo used the OGL 1.0a and the system reference document containing the rules of the earlier 3rd edition D&D to make a game that was basically 3rd edition D&D. If WOTC believed they had the power to deauthorize the OGL and revoke use of content released as open gaming content, then they arguably should have done so during this time. Instead they suffered declining sales and declining brand for several years, until they yielded and released a new game, once again under the OGL 1.0. This new game was 5th edition D&D, which has been the most successful version of the game ever.
All of this shows that WOTC originally intended the OGL to be irrevocable, understood it to be irrevocable, and that they have believed and communicated it was irrevocable for the past 23 years.
When a contract is beneficial to both parties, as opposed to only one, it is usually assumed to be irrevocable except under the terms given. I've already explained how the OGL serves both parties. Therefore, because both parties gain from it, and because the termination section does not include anything about "at our whim," it cannot be revoked at a whim. Notice, if WOTC had wanted to maintain the power to revoke at a whim, they could have added that. The current OGL 2.0 does contain language allowing them to revoke at their own whim. The OGL 1.0 does not.
This, against an ambiguous word in the contract WOTC authored.
Copyright lawsuits take forever, because all of these details of creativity and opinion have to be hammered out. People need to show how ideas originated, or show that certain forms of expression can or cannot be protected. All of that research takes time, and a judge has to hear all the arguments about it. Judges aren't art experts. The judge can't just read the offending work and opine on it.
A contract lawsuit can be easy. Judges are legal experts. They understand how contract language works. They can simply read the contract, hear the interpretations of both sides, and decide what the contract really means. The OGL is just around 900 words. A judge could, conceivably, rule on it in a single day.
I do not think any judge in any court in this country would ever side with WOTC's interpretation of their contract.
Courts do not like wasting years of precious time on stupid and erroneous weasel-logic interpretations. A court of law has every incentive to settle this in the fastest way possible, and will readily agree to rule on it as quickly as they can. A judge will have no patience for listening to WOTC's lawyers hem and haw about the meanings of words. It could be over quickly, and decisively.
The Path of the ORC and the Certainty of Battle
Many people have decided, because WOTC is claiming to deauthorize the OGL 1.0, that they should just eject it entirely. Books previously published using the OGL are scrubbing anything that sounds too much like the SRD and taking the text of the OGL out of their book.
Paizo and others have also announced a new license, the Open RPG Content license (ORC), which will release a set of system-agnostic rules under a general public gaming license, and the license will be operated by some neutral third party that has nothing to do with publishing game content.
This is a great idea for how an open gaming license should work. I hope it succeeds.
However, the ORC implies abandoning the OGL 1.0, and without the OGL 1.0 a battle over copyright IP is inevitable.
Remember the situation in the first place. 3pps want to make creative game content, but are scared WOTC may sue them if they do. Even if your work has nothing to do with official D&D, WOTC can just claim that it does and sue you for copyright violation. You won't lose the legal fight. But you will be forced to give up when you run out of money, and for WOTC those are the same thing.
The OGL 1.0 protects you from WOTC because WOTC has released their own game mechanics using the OGL 1.0. So as long as you only use that content, and stay within the terms of the license, you are protected from a copyright lawsuit.
The ORC will not protect you from WOTC, because WOTC has not released anything under the ORC, and very likely will not release anything under the ORC. At least not for 6th edition -- it is inevitable 7th edition will be under the ORC.
But in the meantime, WOTC has made it clear what they want. They want complete market dominance, and all to be bent to the power of the One D&D. They want all publishers to work for them, make IP for them, give their money to them, and be thankful they are even allowed to do so. If they can't have this by compliance to the OGL 2.0, they will have it through crushing lawsuits.
This means that ejecting the OGL form works, and even turning to ORC as a license, will only lead to the nightmare scenario the IP lawyers warned us of: a copyright battle with WOTC.
It is possible, by all of these publishers agreeing in a united front to the ORC, that it can act as a pool of resources to successfully counter the lawsuits of WOTC. Maybe all of them together can pool together the $4 million predicted to get to a summary judgment. And maybe that summary judgement will be the thing that finally frees the game from the tyrannical rule of WOTC. Maybe the outcome of this inevitable copyright lawsuit will be the final decision: none of the rules of D&D can be protected by copyright.
While that ruling would free publishers of the game, it may not be exactly what they want either. It will cut both ways. It will also mean none of the rules of Pathfinder 2e can be protected by copyright; none of the rules of DCC RPG can be protected by copyright. Or maybe it is what they are willing to live with, if it means no further fear of lawsuits just for wanting to make some money from a creative hobby.
While maybe this is a more ultimate form of victory against WOTC, it involves passing through the horrible nightmare of the copyright lawsuit. While the nightmare lasts, perhaps all of this companies will be blocked from publishing. You may not see any content from them for a while, until they emerge victorious.
The Way Forward
I agree with Ryan Dancey. The way forward is by protecting the OGL 1.0. In the future, it would be great if market pressures force WOTC to release under the ORC. They inevitably will. But right now we need to fight the most obvious fight we can. Protect the OGL 1.0. Do not accept its revocation. It is too important to just give it up.
I especially agree with Tyler Thompson's approach of filing against them. We do not need to wait for WOTC to sue us. They have told us, they plan to breach their contract. If we anticipate a party will breach a contract, and have good reason to think so, we can sue them. We can sue them now, request a judge give a quick bench ruling, and have the OGL 1.0 back. All the publishers using it can continue publishing, and in the meanwhile the ORC can prepare for a lawsuit.
The sooner this is over with, the sooner we can resume enjoying our elf games.
I think the ORC is the only long-term future solution. The OGL 1.0 needs to be saved, and needs to be saved by a court ruling, but it is not enough. WOTC will put out One D&D under their restrictive license, leaving prior material under OGL 1.0, and their market share will plummet to essentially nothing. There will be no content made for official D&D. Meanwhile the ORC will thrive. WOTC will have to release 7th edition of D&D under ORC, because no one will ever trust to be in charge of the license again.
In the end, the good guys will win, the bad guys will be driven out of their jobs, and the ORC will guarantee we aren't forced to teach WOTC this same lesson yet again.
The hobby is about sharing creativity. D&D gives a common language or expressing our fantastic worlds and adventures. If you stifle that, you stifle the heart of the game, and you will fail. The IP holders of D&D learned this in the 90s, they learned it under 4th edition, they're learning it now, and I hope they never have to learn it again.
Assuaging Lingering Doubts
I take a very dim view of WOTC's legal strategy, but I'm no lawyer. The guys at WOTC have lawyers, and they must be pretty good lawyers to work at a major corporation. So if this is such a dumb idea, why are they doing it?
It's not that I'm so smart that I know so much more than them. It's what lots of other people are so smart, and I've listened to what they've said to synthesize and understanding.
There was an article published in the past few years called "Free the Wizards," which pointed out that the majority of Hasbro's profit comes from WOTC, and therefore by D&D (Ryan Dancey discusses this in his interviews). In effect, D&D subsidizes the rest of their product line. Since then, there has been tremendous pressure from shareholders to somehow increase the profitability of D&D, somehow, anyhow. All these new executives were brought on to squeeze out even more money.
The corporate strategy was set by people only thinking about increasing profit. Yeah, sales are great and we make billions in profit, but there's even more money out there these other guys are getting; let's get that money too!
People who do not understand D&D proposed a plan to lock in all 3pps under WOTC's contract terms. That's what has to be done. So now the lawyers have to find a way to make it work. They found a way. It's a stupid way, but really the only way to do what corporate demands is to make a stupid interpretation of a contract.
It's easy to make a trap for a raccoon. You make a thin whole just big enough for its hand, and you put a shiny object inside. The raccoon reaches in, grabs it, and now his hand can't get out while holding the object. Sure, he can just let go and escape. But the raccoon won't. He wants the shiny.
WOTC is the raccoon, making the stupid decision that dooms themselves because they are overcome by greed for the few crumbs that 3pps make.
I take a very hopeful view of the legal situation. But I'm not a lawyer. People who are lawyers keep saying this will be horrible, expensive, and time consuming. So if lawyers think otherwise, who am I to contradict them?
When you hear a horrifying report from a lawyer, look to see if it is from an IP lawyer talking about copyright claims, or a lawyer talking about the simple license terms. Yes, if 3pps try to fight this under copyright law it will be bad. But listen to some other lawyers analyzing this through contract law. This is really an issue of a breach of contract, not a violation of copyright.
I'm no lawyer. And I don't have money to get in a legal fight. But if I were a lawyer, or if I had money, two interesting ideas come to me as fun ways to legally challenge WOTC.
One of those, is to take the 5th edition rulebooks, write a new book from scratch that implements the same rules but using my own language, and publish that. Call it, I dunno, Alliteration & Ampersands. I think it would be good to maybe get rival toy company Mattel on board with it, so we can sell it in Targets and Barnes and Nobles, and put there on the cover "Same game mechanics as 5th edition Dungeons and Dragons." WOTC wants to play with fire? Let them see how badly they can get burned.
Another, is to wait until they claim the OGL 1.0 is expired, then disseminate a monster write up using the OGL 1.0, quoting directly form the SRD, describing the horrible monster the Synthizoid of Guilhelm. Let them try to stop me from using open gaming content released under an open license.
But I'm not a lawyer, and I don't have the money to pay a lawyer. So I'm not going to try those. But I wish someone would.