First of all, it’s great to see a true draft of OGL 1.2. I didn’t see the original documentation of OGL 1.1, but from all the reports I saw, it certainly didn’t sound like a draft, as many people have commented.
I’m not going to rehash the drama that’s been unfolding in the TTRPG space over the past few weeks. I’ve commented enough on Twitter, and if you do need a background, then please feel free to check out some of the links here:
- Dungeons and Dragons’ New License Tightens Its Grip on Competition
- Why are Dungeons and Dragons Fans So Upset?
- Mark Hulmes video
- Starting the OGL Playtest
So let’s start at the very beginning, shall we? A very good place to start. Wizards have opened up the core game mechanics and offered them under a Creative Commons license. The content this covers, based on the existing documentation and pages referenced is: Ability Scores; level progression; Backgrounds; Equipment; Combat, Monster mechanics, and Conditions.
Core Mechanics and Creative Commons
Throughout the conversations that have occurred in recent weeks, it’s been pointed out multiple times that game mechanics cannot be copyrighted. A great example I saw was that you can create a game where you have a square board that you travel around, buying property, placing houses and hotels on it, and picking up cards that impact your gameplay, BUT what you do have to do is rewrite the rules as an original document (and not call it Monopoly, obviously).
So while we can argue the idea that releasing this info under creative commons is nothing but PR because they couldn’t copyright it anyway. The Wizards of the Coast expression of those mechanics could be considered IP. It’s why I’ve been involved in discussions throughout this to rewrite the SRD from the ground up, so that we could potentially still publish content a safe enough distance from Wizards to not get sued, but close enough that anyone picking it up would still know how to meld the two together.
By releasing these pages of the SRD under Creative Commons, Wizards is saving us from having to do that. No one now has to publish a document where the stats are, say, Might, Agility, Beefiness, Wit, Knowledge, and Presence because the core mechanics as expressed in the SRD are available to be used freely.
And yes, it’s possible that may have been the case anyway, but now we don’t have to try and test it in a court of law before we know for certain.
Deauthorising the OGL
This is and has been probably the biggest discussion point throughout all of this. Forget royalties and license-backs, the big thing is people wanting to actually have nothing change and the original OGL 1.0a remain as is, where is, without any editing (save to add the word ‘irrevocable’ in there somewhere).
I don’t want to spend too much time here, and definitely not on the backstory about the OGL. Again, that’s been done a lot and lots of people with more experience in OGL 1.0a than me have had their say on this.
(Comments below are under the disclaimer that I am not a lawyer. I did, however, study law at university, I have been involved in a number of positions in my career where I have had to read, understand, and interpret legislation, and I am confident in my belief that while I may not have the level of understanding of a trained legal professional, I do have significantly above average understanding of these matters.)
As it stands, though, I don’t see how you can have both licenses in effect. Provided the “effective date” listed in the OGL 1.2 discussion paper is far enough in the future (say, 2024 like the original royalties claim was supposed to be) I think that gives enough time for anyone with a work in progress to get it out into the market under 1.0a and then start working under 1.2 moving forward.
I’ve heard comments such as ‘if it ain’t broke don’t fix it,’ or claiming that there’s no need to update 1.0a at all, but Wizards do have a point here. The world has moved forward since 2000 when the OGL was originally written, and things have changed, especially in the Tabletop Roleplaying Game space with the increase in digital use and consumption that the original document could leave ambiguities in place that put Wizards at risk.
And we do still have to remember, this is still Wizards’ Intellectual Property. Risk to them still then applies to the rest of us as creators using that IP.
OGL1.2 – A brief analysis
So, applying the above disclaimer again about my own background in the legal space, I’m not going to do a “deep dive” into the entire document and pull it apart line by line, rather I want to just look at the overall position and maybe pull out some of the aspects that don’t work for me. Effectively, what you’re reading here will be my feedback into the survey as well.
Let’s be honest, this is a far sight better than what was seen in OGL 1.1. The royalties clauses have gone, as have the reporting requirements, the ability for WOTC to steal our creations, and a few other things. There are, however, still a few sticking points that leave me a little concerned.
And one must remember, at a negotiating table, you always start in the best position that you think you can get for yourself. Given how far WOTC / Hasbro has come in from 1.1 to 1.2, the #OpenDnD and #DnDBegone campaigns had a massive impact within the company. Executives talk money, so when the revenue figures started crashing, they were forced to listen.
I have concerns around some of the clauses in section 6, and would probably suggest the following changes:
(c) No Infringement. Your Licensed Works do not and will not knowingly or intentionally infringe any third party’s intellectual property rights or any of our rights not licensed to you via this license or any other.
Only a few lines above this, WOTC declared that “access and substantial similarity” would be, in their opinion, insufficient proof that they have copied a third party’s content. It is only fair that this language be duplicated in reverse. There are a lot of creatives working in this space, and it is bound to happen that substantially similar ideas are conceived independently of one another. What’s good for WOTC and Hasbro must also be good for the licensees.
(e) No Illegal Conduct. You will not violate any law applicable in your jurisdiction of residence, or the laws of the State of Washington in any way relating to this license or Your Licensed Works.
It’s already been pointed out that it’s absolutely unreasonable for a publisher to be expected to comply with the laws of every country and jurisdiction that may have access to their products. The above wording may not be perfectly accurate, but effectively I’m suggesting that as long as you’re not breaking the law of your own country/jurisdiction, and also not breaking the Governing Law/Jurisdiction as per Section 9.(e), that should classify as doing one’s due diligence in publishing material under this license.
(f) No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. This means content or conduct that breaches any anti-discrimination, harassment, or other laws as defined by your country of residence or the laws of the State of Washington.
Sorry, but no, Wizards, you cannot expect to be the arbiter of morality. I am absolutely supportive of this clause, and am convinced that the only people who need to be concerned about such measures are the ones who argue about “political correctness.” However, WOTC should not be the ones – especially the only ones – deciding what is “harmful, discriminatory, illegal, obscene, or harassing.” Secondly, if a license is withdrawn (per Section 7.(b)(i) the independent publisher absolutely should have the right of appeal. In the event that the license has been revoked correctly (ie. The third party content did breach anti-discrimination or other legislation), this should be easy for WOTC to prove in court.
Speaking of termination, I feel like the “immediately terminate your license if you … bring an action…” needs some kind of clarification that the termination will be overturned in case of a court of law finding against WOTC in these cases. This broad termination clause essentially reads as a threat that even if they do something wrong, if you try to bring a suit against WOTC they’ll terminate your license and you’ll be forced out of the ecosystem anyway.
We’ve all seen that WOTC / Hasbro are not above trying to force the hands of the independent publishers who have actually been instrumental in building the D&D brand. They can argue that they need this for their protection, but if they’re going to behave ethically, then there’s no reason for them to believe that they wouldn’t win a lawsuit that is brought against them for any of these reasons.
I’d also suggest that the 30-day cure applied in Section 7(b)(ii) needs to be defined as applicable to digital material, with a longer time period applied to printed products.
The last thing that stands out to me is the Severability clause in Section 9.(d). This reeks of WOTC / Hasbro suggesting that they’ll take their bat and ball and go home if it turns out they lose face with this document. Standard severability clauses usually make the distinction that if, for some reason, a section of a contract can’t be enforced, the rest of the contract remains in place as best it can. This is another “Get out of Jail Free” card for WOTC, since effectively it says that if something doesn’t go their way, they’re going to pull the entire rug out from under you – or from under all of us.
Right. Onto the…
Virtual Tabletop Policy
It’s no secret that WOTC are looking to grow the D&D Beyond brand to include it’s own Virtual Tabletop, which is no doubt why they had attempted to shut down any VTT competition in OGL 1.1.
This document is fairly bare-boned at the moment, and the main concern that is there is the idea that using almost anything dynamic on a VTT suddenly makes it “more like a video game.”
I’ve backed a couple of very cool mapmaking projects on Kickstarter in recent times, and one in particular offers the ability to create maps that can be rendered in 3d with aspects of movement and animation within them. This is going well beyond the VTT Policy’s idea that “an animation of the Magic Missile streaking across the board to strike your target.” The whole point of digital media is to enhance the experience, and VTTs offer that in a fantastic manner. I’m already on the objectionable side of NFTs, so I’m happy for them to ban this aspect of licensed content, but to suggest that we can’t use animations to enhance the Virtual Tabletop Experience, that’s a no from me.
Also, where is the line drawn in that situation if you’ve got one of those gaming tables with a screen built in? Can you use an animated Magic Missile then?
The Future of Dungeons and Dragons
The reality is, I’m not sure whether the damage has been done to WOTC and Hasbro throughout this mess. I’ve been heavily involved in the Twittersphere and watching the conversations there, but outside of this space some of the conversations I’ve had have been far less incensed and passionate. The good news is that the people participating in the uproar have been many of the DMs and Content Creators that I know and follow, and they’re really the important people in this entire discussion
For me personally, I just don’t know. I’ll still provide my feedback, and I’ll probably still run some Dungeons and Dragons games because I have so much great third party content that I want to explore, and I think I can do that without supporting the brand anymore.
The thing is that this entire situation has opened my eyes to things that I was deliberately not really looking at previously. I’d had a glance at some other systems, and it was kind of in the back of my mind to broaden my horizons eventually, but this has really just added motivation to that. I’m looking forward to trialling new games and systems, and exploring the expanded world of storytelling that comes with that.
As for my own creative endeavours, I think I’m in a similar boat. Kelara was originally being built as a Dungeons and Dragons-based setting, but only because of familiarity. Given that the only thing I really have to do is redesign some classes, I think it’s going to be pretty easy to continue working on it with a different system in place.
And with Paizo’s ORC license just around the corner, why would I continue playing WOTC / Hasbro’s game?