As many readers of this blog undoubtedly already know, Wizards of the Coast is rumored to have plans to "de-authorize" version 1.0a of the Open Game License. Leaving aside the big questions of whether the rumors are true and whether or not WotC has the legal authority to initiate such a monumental change, I find myself reminded of this:
That's the opening salvo in TSR's "war on the Internet" of the mid-1990s, when the company dubiously claimed that "any software, bet books, modules, tables, stories, or rules modifications which contain elements from our copyrighted properties, including characters, settings, realm names, noted magic items, spells, elements of the gaming system, such as ARMOR CLASS, HIT DICE, and so forth" were "infringements of TSR copyrights" unless they had been produced under license from TSR. Such belligerent and litigious behavior is what earned the company the nicknames T$R and They Sue Regularly.
Ryan Dancey, the architect of the Open Game License, intended it, in part, to be a "laying down of arms" by Wizards of the Coast, an act of good faith to demonstrate that the then-new custodians of the world's first roleplaying game – this was 2000, remember – would not behave as TSR had done. It was also a way to safeguard the mechanics and ideas of D&D by "freeing" them, echoing Ted Johnstone's cri de coeur that "D&D is too important to leave to Gary Gygax." Dancey felt that D&D was too important to leave even to WotC, the company of which he was vice president at the time.
People more knowledgeable than I have a better handle on the legal and other ramifications of this possible turn of events. I highly recommend Rob Conley's series of posts on this topic, but many others have likewise written capably about it. Speaking personally, my concern is solely for the possible repercussions on the Old School Renaissance, a lot of whose foundational texts, such as OSRIC, Labyrinth Lord, and Swords & Wizardry, owe their existence to the OGL. If WotC is able to rescind even Version 1.0a of the OGL, despite previous assurances that this was impossible, it would send shockwaves throughout the hobby by overturning a state of affairs that has existed for more than two decades.
I suppose it's still possible that the leaked Version 1.1 of the OGL is merely a draft or even a trial balloon, but, even if that were true, I think this whole affair undermines the faith publishers have in the safe harbor that the OGL is supposed to provide them. Indeed, I would not be the least bit surprised if more than a few notable publishers decide to decouple their games from both the OGL and the D20 SRD. If so, we might see a return to the situation that existed in the '70s and '80s when publishers hid behind slightly altered terminology, such as Judges Guild's "hits to kill" instead of "hit points," in order to produce material broadly compatible with D&D without the need for a license (and royalty scheme) from TSR.
I will definitely have further thoughts on this matter in the coming days. If nothing else, I'll likely revisit the history of TSR's ham-fisted attempts to put the RPG genie back in the bottle, as well as take a look at just how much of D&D's purported intellectual property is obviously derivative of prior art. Interesting times!
Ryan Dancey also recognized that TSR collapsed under the weight of dozens of marginally profitable (if that) supplements, and wanted an easy way to encourage third-party publishers to produce adventures and supplements for D&D, while WotC retained its position at the center of the RPG universe. In the present day, when WotC is arguably producing fewer D&D books annually than at any point in D&D's long history, it seems like that approach would make even more sense, but instead they now seem determined to discourage third party publishers via onerous contractual and financial terms. (A 25% royalty on gross lifetime revenue over $750K seems crippling for any publisher that is more than just one person in their apartment. And even those hobbyists in their apartments will likely be discouraged by many of the rest of the license's requirements.)
ReplyDeleteChris Gonnerman has decided to move BFRPG to Creative Commons, an extensive rewtite is already under way.
ReplyDeleteI was wondering what this piece of news may imply for the release of your own Sha-Artan
Fortunately, with each new draft of The Secrets of sha-Arthan strays more and more away from the material in the SRD. This wasn't intentional on my part, but it may turn out to have been fortunate.
DeleteExcellent, looking forward to it
DeleteAppreciate the shout out and links. And that you took the time to comment on the larger issues.
ReplyDelete“Ryan Dancey, the architect of the Open Game License, intended it, in part, to be a ‘laying down of arms’ by Wizards of the Coast, an act of good faith to demonstrate that the then-new custodians of the world's first roleplaying game – this was 2000, remember – would not behave as TSR had done.”
ReplyDeleteThis doesn’t fit with what Dancey was writing on rec.games.frp.moderated and rec.games.frp.dnd during 2000. He argued specifically, and often, that WoTC considered any "compatible with" or "designed for use with" materials to be derivative works of D&D. Also that any references to D&D monsters, places, stats, classes, etc., made the work a derivative work.
"So I, as a small press publisher, decide to write D&D modules. I *already could do this* legally.”
Ryan: "You cannot. You would be publishing an unauthorized derivative work, and could be restrained from doing so.”
He compared this to writing software for computers. If you write software for a specific computer, he wrote, it is automatically a derivative work owned by, for example, Apple. He wrote that “Apple provides compiler publishers with a license which they agree to make binding through EULAs, a non-exclusive, world-wide license to use the proprietary components of the Apple OS… Thus, the reslting code is an >AUTHORIZED< derivative work… If Apple did not do this, then the resulting work would fall into the same muddy legal area as >UNAUTHORIZED< D&D derivative works.”
(As a longtime programmer, including on the Macintosh, who has occasionally hand-compiled software without using an intervening compiler, I can tell you, that’s completely untrue from start to finish.)
The software analogy has unfortunately become closer to true in the present walled-garden App Store era, but it was completely insane in 2000.
DeleteI don't really know what they're doing here; this wouldn't really increase their capacity to sue for copyright or patent (though it would likely make them threaten more). I can't imagine why this would be a good move from either a legal or a marketing perspective, but it's entirely possible I am missing something.
ReplyDeleteThe whole thing is very confusing.
ReplyDeleteIf the "leaked" version of the 1.1 license (which is not "open" in any sense) is real, then I cannot see anyone who creates content actually using it. *If* you qualify for the license *and* if WotC extends it to you, they will co-own your work and can do what they want with it, including using their distribution network to sell it.
I'm a lawyer (though I don't practice in this area) and I have seen clients push for "the sun and moon" in the initial drafting of a contract or when negotiating a deal, but unless I'm missing something critically important I do not see how anyone could sign off on the 1.1 license, including higher-ups at WotC or Hasbro.
It is a hammer to make the big publishers like Paizo look favorably on the more "mutually beneficial" contracts they have offered directly. Joe Publisher does not get the chance to even see those contracts, as their annual income isn't even a rounding error to Hasbro.
DeleteSo I imagine Paizo, Goodman, Green Ronin, Troll Lord's, and some others have seen a different contract and been given the "Box #1 or Box #2" treatment...
It's possible, though I know for a fact that at least one biggish OGL publisher has not (or not yet) been offered terms better than Joe Publisher.
DeleteThe Troll Lords have already said they're moving away from the OGL/SRD and won't be playing ball, and are even liquidating their 5E products. Alexander Macris has similarly stated that the forthcoming Imperial Imprint of ACKS will not include the OGL.
DeleteI expressed my initial opinions on Dragonsfoot a couple of days ago. Since reading and thinking about it more my hunch is that it isn't so much aimed at existing 3rd party developers as attempting to close off the risk of knock-offs following the release of the D&D movie in March.
ReplyDeleteIf the aim is to try and create a franchise around D&D then they'll want to minimise the risk of 'fake' or 3rd party merchandise which attempts to hide behind the existing OGL 1.0a.
That could very well be their intent, but the way they appear to be going about it will have far greater consequences.
DeleteI think it's aimed at killing 5e, so everyone switches over to 6e when it's released. I think they then want everyone to use their Virtual Table Top and get microtransactions to help "monetize" their player base. Killing the current OGL ensures that no one makes another Pathfinder replicating 5e. I don't think they care in the slightest whether anyone signs on to OGL 1.1. They really want to clear the field so only their system is being used by anyone claiming to play D&D. I think killing the OSR is probably just collateral damage to their mission to kill 5e and get everyone on their VTT.
Deleteagree with Rob
DeleteAn (online) open letter and petition to WotC was published, asking people to sign it if they want to oppose the new OGL, and keep the old/current OGL version.
ReplyDeleteCheck it out for details : https://www.opendnd.games
Griffon's Saddlebag, a creator of D&D 5E content, has confirmed that the leaked v1.1 was sent to creators with sample contracts to produce new material.
ReplyDeleteI'd already decided Hasbro wasn't getting any more of my cash, really disappointed to see what this will probably do to Old School Essentials (my present ruleset of choice)
ReplyDeleteIf Hasbro had the legal authority to rescind the OGL, why did they suffer Pathfinder to exist?
ReplyDeleteGood question. As I understand it, the OGL mentions it's a 'perpetual' license — which in legal terms only means that the license does not have an inherent expiration date, but still can be 'revoked'. And if a license does not explicitly say it is irrevocable, then it is revocable by default (which is the case for the OGL). So when it comes to Pathfinder, perhaps their interests simply changed ? I guess that way back when they introduced the OGL, they thought that 3th party products would be good for them: more people playing (D&D) would mean more people buying their products. And these days, with the enormous success of all those 3th party products and activities, they simply want a (big) piece of that pie ?
DeleteHasbro has wanted to kill the OGL for a long time now. I'm amazed they ever allowed it to happen in the first place. But since they couldn't revoke it, 4e was created for the sole purpose of circumventing it and introducing the absurdly restrictive GSL. That, of course, led to the creation of Pathfinder, which quickly proceeded to kick 4e's ass.
DeleteBut if Hasbro could have rescinded the OGL all along, why the need for the 4e subterfuge, and why allow WotC's biggest rival to continue publishing a competing product? What ammo do they suddenly have, that they haven't had for the last 23 years?
So I can't imagine they're going to try to revoke the original OGL. If they could, they would have already done it long ago. My suspicion is that the OGL 1.1 is really just the GSL 2.0. Hopefully it goes as well for them as it did the last time.
They can indeed update the license, but it doesn't seem like they can revoke old ones. Given that, people can just wander off and make stuff for 5e. Or 3.5e. Or 3e. Or whatever. It's just...they don't have the option of getting rid of it. I'm not sure they'd even survive a motion to dismiss. There is no case to answer.
ReplyDeleteThey especially would run into trouble when they got to the discovery process, and the defendant's lawyer got the e-mails where they no doubt discuss the specific wording of the damn license and its irrevocability is almost certainly acknowledged.
Frankly, given the shoddiness of a lot of modern D&D material, the shoddiness of this doesn't surprise me. The editorial screwups that seem to take place in modern D&D products seem to combine a lack of thoroughness, a lack of understanding how other people might think, and a lack of understanding of drafting rules. i.e. everything you need to be a decent lawyer.