Friday, April 19, 2024

Wizards of the Coast Do Not Understand the OGL

It was recently announced that Cynthia Williams, CEO of Wizards of the Coast, the company which controls the Dungeons and Dragons brand, will be resigning.  Wherever else she goes on to, within the D&D hobby, Cynthia Williams will forevermore be known as the woman who oversaw the OGL scandal and completely tanked all brand trust for the official D&D brand.  I originally wrote this last year in January, during the height of the OGL fiasco.   Before I could publish it, WOTC completely folded to public pressure and released the entire SRD 5.1 under a CC-BY license.  Despite the last-minute act to salvage public good will, the OGL scandal continues to plague WOTC and D&D.  With the recent announcement that Cynthia Williams will be leaving, I thought it worthwhile to revisit the OGL fiasco.


My last post was a very long break-down of the OGL situation, describing how the OGL works, its purpose, the nature of what Wizards of the Coast (WOTC) are doing, and what I hope would happen.

Since writing that, more news in the area has occurred, including the draft OGL 1.2.

What is clear to me, is that many people, including WOTC, do not understand even what the OGL is in the first place.  So in this post I just want to clarify in as brief a way I can how the OGL works, how it does not work, and why this is a big deal.

This is going to be a very in-depth look at the legal wording of both the original OGL 1.0, and the proposed OGL 1.2.  My thesis in this is, that WOTC do not understand the OGL 1.0, do not know what it is, and have been misconstruing it (deliberately or not) in order to push forward with their plans.

Open and Closed

Let's begin at the beginning.  What is this license?  They both tell us.

OGL 1.0a says, in 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. 

OGL 1.2 says, in the paragraph before section 1:

This is a License between Wizards of the Coast LLC (“Wizards,” “us,” “we,” “our”) and anyone who wants to use the licensed content in their own TTRPG (“you,” “your”).

There is a key difference between the two of these.  One of these is an open license, while the other is decidedly a closed license.

I don't think WOTC understand this difference.  Or they do and are cynically pretending they don't.

In a closed license, there is a licensor who owns the IP, and a licensee who is contracting with licensor to use the IP to create some derivative work.  For instance, the guy who makes hats with Captain America on them.  He has a contract with Marvel, to use the Captain America image.  

A closed license is with the licensee, to specific IP, under specific terms.  These terms are decided, usually between lawyers at the two companies, in a private arrangement.

There is nothing inherently wrong about a closed license.  The Tolkien estate, for instance, is extremely closed with licensing their works.  Even with Amazon to the tune of billions of dollars, they were only willing to part with licensing a few appendices from one of the books.  And that's fine.

An open license also has a licensee, licensor, and IP.  But it is open precisely because there is no centralized control over who can use the licensed work, nor any direct relationship between the licensee and licensor.  The licensor states the terms for using the work and attaches them to the work itself, and anyone can use the work by simply following those terms attached, without needing to bring lawyers into a private board room to discuss.  That's an open license.

The Open Gaming License (OGL) was inspired by open software licenses.  The VP at the time, Ryan Dancey, saw the power of open licenses to develop brand identity, goodwill, consumer trust, and build a community relying on your software.  Under old management, the former D&D brand owners (TSR) were constantly suing small-time publishers for making "competing" adventures.  But with the OGL, WOTC turned those publishers to effectively working *for* WOTC, producing quality content for WOTC's own brand, increasing the community using WOTC's rules and other products.

While the OGL 1.2 is a license with WOTC to use the SRD 5.1, the OGL 1.0 is a license to open gaming content, with anyone who has ever released anything using the OGL. 

Many people get this point wrong.  For instance, one of the several legal analysis podcasts making its rounds has been this one by Opening Arguments.  I started writing an entire blog post responding minute-by-minute to this podcast, but then I realized it takes a single sentence.

The OGL is not a license with WOTC to use their SRD 5.1, but rather a license with the entire community of game publishers to all of the things that have ever been published as open game content using the OGL.  There is no limit to what can be licensed by it, nor does the license itself even mention the SRD directly.

One of the things originally published as open game content under the OGL was the SRD 5.1.  The OGL was also used to publish SRD 3.0 and SRD 3.5.  These SRDs are without argument the most important works published under the OGL.  

But the OGL is not limited to only the SRDs published by WOTC.  The OGL has also been used to publish even more.  Because anyone can publish material under the OGL, and anyone can use any material published under the OGL.  That's what makes it open.

Share and Share Alike

An open license has no central authority.  The content licensed by it can be used by anyone.  The only conditions are that the content must be designated open game content, must have the OGL attached to it, the user must specify the source of the game content, and the publisher must also include the OGL in the publication.

Imagine that I go to a yard sale, and find an old rulebook from 2002, written by a tiny company long out of business.  To give it a name, this book is called Game X.  Flipping through the book, I find a really neat spell description, for Spell A.  This spell would be perfect for an adventure I'm writing.  I'd like to use it.

I turn to the back (or front, or wherever) of the book and I find the OGL, which must also list which parts of the book are product identity (which remains protected and is not licensed) and which are open game content (which are openly licensed).  And I find that the spell is released as open game content.  This is great news.

According to the OGL, I don't need to track down the original publisher, or anyone who may own the copyrights of the original publisher, to ask for permission or negotiate a new licnse.  I don't need to search for a current version of the OGL.  I don't need to check in with WOTC about terms.  The book itself, by affixing the OGL, gives me the conditions for using the spell in my future work.  It is this license here in the book, that is also my license to use Spell A.

I must include that same license, and designate the open game content I use or create for the future.  That's how I can use this spell.

Imagine I make my adventure, Adventure Y, using Spell A.  Then twenty years later, after my adventure company has folded, someone finds an old copy of Adventure Y at a yard sale, flips through it, and sees the same Spell A.  This person wants to use this spell for their new character class idea in their upcoming Class Z.

They do not need to contact me, nor the original publishers of Spell A, nor even have access to the same Game X that I found at the earlier yard sale.  Because my adventure, by virtue of including this spell and complying with the OGL, has specified that this spell is open game content, that it should be credited to the original publishers, and that it can be used according to the terms of the OGL.

The person reading Adventure Y now knows how to use an idea I didn't even write, by virtue of reading my use of the license.

It was shared to me one way, so I have to share it in the same way.  This is the idea of share-alike in open licenses, and it is crucial.  Without this idea, open licenses cannot work.  Without this idea, there must be a central authority to keep tabs on the status of all the IP.

This is how the OGL was setup to work, and how it has worked for 23 years.

Deauthorizing With No Central Authority?

According to WOTC, in the introduction to the OGL 1.2, 
The Open Game License 1.0a is no longer an authorized license. This means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date). It does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content.
Now think back to my example of a spell (Spell A) published by an out-of-business publisher (in Game X), included in my adventure (Adventure Y), then discovered twenty years later by someone through my Adventure Y, forty years after the original rights holder to Game X ceased to exist.

In this context, what does "no longer authorized" mean?  The idea of a previously authorized version becoming "de-authorized" cannot make sense of this situation.

The book that Z reads clearly specifies how they may use the Spell A in their own work, and makes no reference to a requirement to check a centralized list to see whether this version of the license remains valid.  If this check were a requirement, then this would not be an open license.

WOTC claim that 1.0a is no longer authorized, but that work published under 1.0a remains licensed as per 1.0a.  According to the Opening Arguments podcast I mentioned earlier, despite his heavy pro-WOTC position, he stresses that obviously, obviously work originally licensed by 1.0a would still continue to operate under the terms of that contract.  Obviously.  You can't have a new OGL retroactively change a previous licensing agreement.

So what happens to this spell situation?

Spell A was released as open game content in Game X.  I took it from there and put it in Adventure Y.  A new person wants to put it in Class Z.  The license that comes affixed to Spell A indicates how to do this.  And apparently the terms of this license can expect to still remain valid.  So let's look at some of those terms.

One of those terms is, 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.
So this License, the one in Adventure Y listing Spell A as open game content, applies to Spell A.

In section 3:
3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License. 
The new publisher can agree to this License by merely using Spell A and following all the terms.

In section 4:
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. 
Once the new guy uses Spell A in accordance with this License, the original writers of Game X, whoever they were, have extended a license to the use of Spell A in this new Class Z, some 40 years after Game X was even written.

Notice, just for emphasis, that "the Contributors" are the ones granting the license.  Not WOTC.  Who are "the Contributors"?  It's defined in section 1, "'Contributors' means the copyright and/or trademark owners who have contributed Open Game Content."  So it is anyone, anywhere, who have released anything as Open Game Content.

In section 10:
10. Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute. 
The Class Z must print an entire copy of this License, the one found printed in Adventure Y, taken from Game X, inside, explaining the terms of use for future people wanting to publish Spell A.

In section 6:
6.Notice of License Copyright: You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder's name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute. 
So Class Z must include this License, and the copyright notice section must give the same listing for Spell A as the publisher finds in my Adventure Y.  Something like, "Spell A, copyright X-Brand Game X Publishers, 2003".

I keep repeating and highlighting this License, because the terms o the license refer specifically and only to itself, and to no other license.  Not to some most-current license, but to that license, there, in the book, next to the work.

Those are the terms that Spell A was originally distributed under, and so it stands to reason that Spell A continues to operate under these terms, as WOTC have said.  So the publisher for Class Z can take Spell A straight out of my book, include the copyright attribution to Game X, and attach the OGL 1.0a, and be complying with the statement that "Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content."

So what about SRD 5.1?

Suppose that Game X were in fact the SRD 5.1 of D&D 5e.  Suppose that Spell A was actually a spell from within the SRD 5.1, published under OGL 1.0a as open game content.  The licensing situation of Spell A has not changed.  Nothing legally important has changed.  So why can we not continue to use SRD 5.1 in terms of the license under which it was originally issued?

Because obviously, obviously, terms of a license can't retroactively change.  Obviously.

And the Rest of It?

WOTC apparently have no idea what open game content is, and seem to think the OGL was purely a license to their SRD 5.1.  They don't seem aware that it licenses all kinds of other things.  Again, this is probably because the SRD 5.1 is the only thing they care about.  So they assume it's the only thing that is important.

But what about all of that stuff published by people other than WOTC, released as open game content, intended to be shared-alike by future publishers into the future?

What happens to Game X, and Spell A, and Adventure Y, and Class Z?  How can we license them?

I think I made a compelling case, that these are licensed exactly like we have been licensing them for 23 years, according to the OGL 1.0a.

But WOTC want to claim the OGL 1.0a is "deauthorized," so that it can no longer be used.  As it says in section 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. 
So if the license isn't "authorized", the terms state you can't use it.  This completely explodes the point of an open license, ruins the share-alike principle, and confuses the entire issue of releasing work for open use.  But it's the argument they're going with.

It's the argument they're going with, not because it makes sense, but because they need to lock down the SRD 5.1.

Assuming that the concept of "deauthorizing" makes sense... WOTC has just cast an unknowably large amount of intellectual property, most of it not theirs, into a confusing rights limbo.

Consider, for instance, SRD 3.5.  This is open game content.  It was released under OGL 1.0a.  If I can't still use SRD 5.1 under the OGL 1.0a, then it stands to reason  I can't still use SRD 3.5 under the OGL 1.0a.

Suppose that the original Game X had made use of content from SRD 3.5.  Maybe even in the description of Spell A it uses some terms from the SRD 3.5.  So now the distribution of Spell A is tied to the distribution of SRD 3.5, which is tied to the distribution of SRD 5.1.  

Since OGL 1.0a has been declared de-authorized, the publisher of Class Z cannot use Spell A, written by someone with no obvious relation to WOTC, in his own game content.  This means that material published under OGL 1.0a can no longer be used in accordance with the terms of OGL 1.0a.  But this material is also not licensed under OGL 1.2.  Only the SRD 5.1 is licensed under OGL 1.2.

So how can I use Spell A?

Its original authors clearly intended future game publishers to use their spell with attribution.  They are no longer here to directly license it, but they put it out under those terms.  I could have used it under the open license they published it with, but that license was declared "deauthorized."  It seems as though, by trying to stop people from using SRD 5.1, WOTC have inadvertently interfered in a contract between two parties unrelated to WOTC, over interests unrelated to WOTC's IP.  And that's illegal.

Consider the companies Paizo and WOTC.  Suppose Paizo puts out something under the OGL, and WOTC decide they will use it under the OGL.  But then suppose that I declare the OGL is deauthorized, and that this means WOTC cannot use Paizo's open game content.  That is an analogous scenario to WOTC deauthorizing.

Maybe WOTC's "deauthorization" is limited just to things WOTC has released?  Suppose that I publish my Adventure Y under the OGL 1.0a, and then a year later I change my mind and "deauthorize" OGL 1.0a for the license to my works.  And then Class Z comes along twenty years later, sees the OGL 1.0a in my Adventure Y, wants to use it, and is given every indication that merely obeying the terms of the OGL 1.0a printed there in the adventure is sufficient.  How is he supposed to know that he needed to check some official communication from me first to be sure I was still authorizing this adventure under OGL 1.0a?  There is no concept of this anywhere in the license.

It is clear this sort of confusion over how to re-use previously published open game content was never intended, as it destroys the entire point of an open license.  It puts WOTC in the position of policing licensing contracts made by other people with other people.  This confusion arises entirely because WOTC are deliberately misinterpreting the word "authorized" to mean something about their power to control what licenses are used.  

So what does that word really mean?

Understanding "Authorized"

The entire document repeatedly talks about use of open game content under "this License."  That is, under OGL 1.0a.  The only place there it uses a different phrase is section 9, which discusses updates to the license.  In the context of updates, it uses the word "authorized", here:
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. 
The original drafters of the OGL have spoken about what "authorized" means here.  But rather than ask them, let's be clear about what it cannot mean.

The term cannot mean that there exists somewhere (not stated by the license) a list of all versions of the license, and next to each version an indication as to its status, if still considered authorized or not.  If there were, it would be necessary to check in with some central authority on licenses.  This leads to the confusion over how to publish Spell A, creating a confusing legal mess of rights and use, or even implicates WOTC in tortious interference.  Clearly, to be fit for purpose, the license printed within the work itself must be sufficient to reuse anything issued as open game content using that version of the license.

So how else to understand the word?  Let's look at section 2 again,
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.
So I can't look at Spell A in Game X, take the OGL 1.0a out of Game X, but add in the sentence "and also all rights to the Forgotten Realms is open game content" in there.  That's the idea.

I think it it is appropriate to read that section 2 is explaining what "authorized" means later in the license.  It is a license which has only had its language changed as described by the license itself.  The license itself explains how it can be updated in section 9.  It says that only WOTC or its agents may put out updated licenses.  So an "authorized" license is one published by WOTC or its agents.

I think it is inappropriate to read section 9, which is titled "Updating the License" and is about the proper way of changing wording of the license, as a section about limiting the use of the license.  The terms of use are laid out in other sections.

Since this License (the OGL 1.0a) is a license that has been put out by Hasbro through the official provisions of sections 2 and 9, then this License is authorized.  Notice that "authorized" is not an issue of permission, but an issue of authorship.  The license was authored by WOTC.  If it was authored by WOTC, it can't be "de-authored."  That doesn't make sense.  This property cannot be altered.  Once WOTC has released a version of the OGL, it remains an authorized version.

How Did We Get OGL 1.2?

OGL 1.2 is an improvement from OGL 1.1.  Sure.  But no matter what they put in OGL 1.2, it will always be inferior to OGL 1.0a.  Since they can only "deauthorize" OGL 1.0a by illegally breaching contract with the entire community of their customers and fans, there is no scenario where they keep the deauthorization clause without angering everyone.

WOTC have made it clear through pronouncements.  They will cave on everything.  They will not cave on "deauthorizing" OGL 1.0a.

If seen from a neutral perspective, OGL 1.1 is actually not that absurd, with the exception of clause 12b.  This was the infamous license-back clause, that granted WOTC the ability to take your work, put their names on it, block you form printing it, print it themselves exactly as you wrote it, sell it, make money, and never pay you a dime, and your only recourse being to complain on twitter.

But with the exception of that, OGL 1.1 was actually a fairly generous closed licensing agreement.  I mentioned the Opening Arguments podcast earlier.  Their take was horrible, but it was horrible because they examined it from the perspective of a closed licensing agreement between an IP owner and manufacturers, and in that light it's pretty liberal in what others can do with the IP.

The royalties clauses, the morality clause, the termination clauses, the need to register, all of it, is actually normal and even permissive by closed license standards.  Just cut out the license-back, and it's something, under completely different circumstances, most licensees would be happy to sign.

But WOTC gave up all of those terms, in the face of criticism.

The only thing they held onto was their insistence that the OGL 1.0a was deauthorized.  That is all they want.  That is their Arkenstone, and they will trade the entire kingdom of the dwarves for it.  They will never be able to have it, and they will destroy their company seeking it.

How did they make such a horrible miscalculation?

It's easy to assume they're all hyperintelligent, greedy, and pure evil and are deliberately trying to ruin everyone's lives.  But I'm beginning to think they became short-sighted in their greed and were willing to overlook reality in favor of a world where their strategy worked.  As in chess, when one rushes a piece in thinking he can snag the opponents queen, only to find he opened his king to check.

It has since become clear, through leaks from inside WOTC, that this entire fiasco is about VTTs.  Current execs think digital is the future, and have been spending millions of dollars to develop the greatest virtual table top imaginable.  Based on what I've heard, it is a superior product to other 3D VTTs, and will bring D&D interactivity into a whole new immersive era.  If that is true, everyone would want to use their VTT, because it's the best.

But for WOTC, it isn't enough to just have the superior product.  They have to also force everyone to use it.  

This VTT is a combination of a new edition and new way to play.  But they had to promise this new edition would be mechanically compatible with 5e.  They have to promise that, because the minute they say they are making a new edition, sales of 5e books would plummet.  No one is going to buy 5e now, knowing it won't work in a year.

They also had to promise that the new edition would be under the OGL.  WOTC have tried releasing something under a different, closed license before.  It didn't work.  They are using "the OGL" more as a brand identity, indicating to fans a product that is safe for them to use.  Like calling it "certified organic."  It is absolutely not an open game license, as it requires registration.  But calling it an OGL makes it sound good.

The trouble is, the SRD for 5e has been released under the OGL 1.0a, and so there is no legal way to prevent competitors from putting out a rival VTT.  Unless... unless they can pretend 5e is no longer released under the OGL 1.0a.

Restrospective after the Fact

Over a year later (April of 2024), and D&D have not won back public trust.  They released the entire SRD 5.1 under a CC-BY license, effectively relinquishing all control of the game rules and requiring only attribution for use of the entire SRD 5.1.  This was an enormous move, but it was insufficient.  The deceptive, weaselly behavior as they bald-faced lied to their fans in an attempt to save face, has left a sour taste in the mouths of customers.  We still do not trust them.  We know they lied to us, and they knew they were lying to us, and they knew that we knew that they were lying, and yet they lied anyway, knowing they likely had the legal resources to get away with it.  

What they gave us -- the entire SRD 5.1 under CC-BY -- is an enormous gesture, but the gesture we needed was an affirmation that the OGL 1.0a cannot be "deautorized" or an updated OGL 1.0b stating as much.  The fact they didn't give us that, means they are willing to try this whole thing again with a new SRD.

A lot of people stopped playing official D&D, and have moved on to new games, and probably see no reason to go back.  Why pay $50 per book, for three books, which mostly just tell you to roll a d20 and succeed on high?

The OGL fiasco was almost certainly a result of higher-ups demanding a lock-down on the SRD, and the legal department scrambling around looking for weasel-logic to make it work.  It was very likely the demand came from Cynthia Williams herself, who has no idea and doesn't care about the TTRPG hobby at all beyond as a vehicle to make money.  Being told what they needed to do, someone in legal found a stupid loophole, and the company decided to run with it, not understanding the horrible situation they were about to face.

I actually don't even believe they caved because of public pressure.  For nearly a month they withstood the public pressure, even doubling-down on the "deauthorization" of the OGL.  Why would they cave?  They believed they had the ability to completely corner the entire market and consume all competitors into their monopoly.  I believe they only caved because they became aware that they could not have won in a lawsuit for breach of contract, possibly because of legal teams at small 3pps.  The legal argument from WOTC was so bad, and so confused, they would lost in a single day in court.  I think it was only then, with this realization. that they tried to reverse course as much as possible.

Sales of D&D continue to plummet, due to multiple stupid moves, not only the OGL fiasco.  Firstly, announcing a new edition over a year before releasing the new edition.  Why would I buy a rulebook that I know will be obsolete soon?  Those customers who would want to buy a rulebook, are waiting for the update, which continues to be delayed to time with the VTT.  Secondly, developing the VTT in-house, when they are a pen-and-paper roleplaying publisher and not a video game developer; the VTT was already late when the OGL fiasco broke, and is even more late over a year later, and their inability to launch it has severely hurt their market strategy.  And thirdly, it is worth mentioning the abysmal quality of most official D&D publications as they continue to produce worse and worse quality products in the interests of serving instead a social message: things like wheel-chair accessible dungeons and orcs are the good guys all along.

But the OGL scandal was definitely a big failure.  It drove life-long customers to their competitors, and crucially it alienated their core customer base right before the release of the D&D movie.  The decision of WOTC to scorch the earth with their fanbase no doubt absolutely pissed off the big wigs at Paramount, who spent millions on producing and advertising the film.  It definitely destroyed any future business relationship to produce more films, killing that entire avenue of brand marketing.

My hope has always been, that the D&D brand would tank so horribly that Hasbro would be forced to sell it off and then maybe Goodman Games would buy it up and re-release DCC as D&D 6e.  So it is with great sadness that I see Cynthia Williams leave her position.

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