Is the OGL Era Over?

The OGL 1.1 Leaks

The potentially company-shattering news in the roleplaying industry this morning is an alleged leak of the OGL 1.1 that Wizards previewed at the end of the year. It’s a little hard to tell if it’s Wizards’ actual text or not, since there’s some wonky language and the initial discussion was on sort of click-baity sites. Even the claims that io9 has an entire 9k-word OGL 1.1 isn’t a sure sign since AIs can increasingly pump out complete junk of that sort. But I personally lean slightly toward the “it’s real” camp, with the wonky language that’s been published being my main holdback.

(Whether it’s real or not, the fundamental discussions of the OGL are important for the industry.)

If the OGL 1.1 leaks are real, they’re deeply, deeply problematic — described by some folks as “worse than the GSL”, which was WotC’s D&D 4e license that was so bad that it led to a mass exodus of loyal third-party publishers for D&D, and may thus have contributed to the failure of 4e.

Prime points include:

20-25% royalties over $750k, which is a ruinous amount.
Ability for WotC to block the publication of books they don’t like, with no legal recourse for the publisher.
Ability for WotC to use any OGL content for any purpose.
Inability to use alternate SRDs, which could impact everything from Labyrinth Lord to Pathfinder.
Revocation of the OGL 1.0a.

Now the last point is the most interesting, contentious, and damaging, and it’s worth discussion whether this leak is real or not.

Revoking the OGL

The OGL was supposed to be forever. That was Ryan Dancey’s clear intent and the industry’s clear expectation (and if anyone wants that written in an affidavit for a court at some future time, hit me up). It was even stated in a FAQ on the Wizards web site.

But the possibility of Wizards trying to revoke the original OGL has brought out a lot of discussion of how it may be possible. It basically comes down to three points.

1. Authorization. The OGL 1.0 says that even if new versions of the OGL come out, publishers can continue to use any “authorized” version that they like. So that should mean that if Wizards releases an awful parody of an open license as OGL 1.1, publishers can continue using OGL 1.0a. Except the alleged leak says OGL 1.0a is being deauthorized.

There’s actually *nothing* in the OGL that says what authorized means. It’s a big gap in the license that no one previously talked about and is the sort of thing that lawyers make their fees on, by arguing why their interpretation is correct. It was presumably put in the contract to keep random-Joe from putting out a version of the OGL: clearly Wizards wouldn’t have authorized that. But now it’s being used to suggest that Wizards can authorize and deauthorize individual versions as they see fit.

2. Revocable. The OGL is said to be “perpetual”, which sounds like it should make the whole question of deauthorization moot. But lawyers have said that doesn’t mean what a lay person would think it means because the word “irrevocable” isn’t used, allowing the OGL to be revoked.

This is unfortunately an example of the “magical incantation” element of the law, which systemically keeps lawyers in business by making it dangerous for lay people to write contracts because they might not use the right magic words or might use the wrong ones. If the legal interpretation is correct, it’s another major flaw in the OGL’s armor.

3. Intent. But a lot of that comes down to the question of intent. Evidence of intent usually can’t overcome what’s written in a contract, but the question will be whether it can overcome ambiguity (“authorized”) and omission (“irrevocable”). I’d hope so, because if not publishers have produced 20+ years of support material for Wizards of the Coast based on a lie.

Publishing without an OGL

There’s of course another question in all of this: is an OGL even needed to to allow for the publication of material compatible with D&D? A lot of the response to the increasing rumors about an OGL revocation has been an angry “No”. But it’s not that simple.

Mayfair put out material compatible with D&D in the ’80s and was careful to follow what they expertly saw as the legal needs to protect TSR’s trademark. They got sued. Wizards put out material compatible with Palladium Fantasy in the ’90s and was careful to follow those same needs. They got sued. Mayfair’s lawsuit ended in them signing a contract with TSR that years later cost them their entire fantasy line. Wizards’ lawsuit almost put them out of business and ended in an apology and reparations to Palladium to make it go away, so that they could concentrate on Magic: The Gathering. In other words, neither ended well for the company involved.

So, maybe publishing D&D compatible material would still be legal for careful publishers. But many publishers wouldn’t have the legal knowhow to be “careful”, and even if they did, it’s still a minefield. The OGL removed that minefield for over 20 years, allowing the industry to concentrate on making games.

If Wizards is trying to sidestep that, it speaks to what I questioned in my yearly report: that they may now care about profits, not players. And definitely not the industry.

Yeah, the industry’s a lot bigger than D&D and the OGL. But D&D is still the main mover that accounts for the vast majority of the industry. If the OGL 1.1 is anything like the alleged leaks, it’s going to be a disaster for a lot of companies, and the big question will be if anyone is big enough to stand up to a lawsuit from Wizards (and if they want to even take that chance).

I dearly hope that Wizards has not decided to become the villain in the industry’s story.

This article was originally published as Advanced Designers & Dragons #74 on RPGnet. It followed the publication of the four-volume Designers & Dragons (2014) from Evil Hat, and was meant to complement those books. This story continues in “Is the OGL Era Over? (Part Two)”.