A month after the initial leak, which revealed that Wizards of the Coast was working to revoke the OGL using highly questionable legal means, the whole saga is finally at an end (for now). Following the worst PR disaster in the history of the roleplaying industry, Wizards of the Coast has fully capitulated. Here’s some notes on their last few salvoes, the final result, and what’s likely to come next.
The OGL 1.2
Seeing how badly things were going, Wizards of the Coast brought in D&D Executive Producer Kyle Brink to act as their front-man starting on January 18. His apology was generally seen as a step forward, but it also continued to contain lies about the OGL 1.1 being a “draft”, even though third-party publishers were being given the contract to sign as far back as December, with some of them offered sweetheart deals to help grease the wheels.
The reason for the more friendly advance became obvious a day later, on January 19. Wizards was going to give it another try: a new statement from Brink included a draft (actually a draft this time!) of what was now being called the OGL 1.2. Though Wizards of the Coast had stepped back from their demands for royalties and from their ability to steal any content produced by any OGL publisher, the new license was still deeply problematic.
One of the biggest problems was that the new draft continued to claim that Wizards had the ability to deauthorize the OGL 1.0a, something not well-supported by the original license, and something widely seen as a bad-faith action given Wizards’ decades of claims that the OGL was eternal. Given that, the new license was widely interpreted through the same lens: how could a bad-faith actor manipulate the OGL 1.2 in improper ways?
- A morality clause (6f) was seen as the biggest problem. It gave Wizards the right to immediately terminate the OGL for any “harmful, discriminatory, illegal, obscene, or harassing” publication or conduct, with Wizards being the ultimate arbiter of what that meant and the licensee agreeing that they could not file any legal objection. This could allow a bad-faith Wizards to immediately end the OGL publications (and thus, for the most part, the business) of any publisher, with no recourse.
- Though the new license was clearly stated to be “irrevocable” (2), a variety of termination clauses lessened its power. Wizards’ ability to immediately terminate a licensee who infringed on their IP (7bi) was seen as another way for them to eliminate any licensee they wanted, since threading the line between protected and open-source IP that’s often intermingled can be difficult and open to honest mistakes; while a severability clause (7d) that allowed Wizards to terminate the entire license if any part of it was found invalid was seen as another get-out-of-jail-free card for a bad-faith actor: people found it likely that Wizards could get some part of the license found invalid if they really wanted.
Though these concerns might have seemed weird and conspiratorial just a month earlier, Wizards’ attempt to deauthorize the OGL 1.0a had led potential licensees (and the wider fandom) to scrutinize the new contract in a way that most lawyers would prefer: as if they would be interpreted by someone trying to manipulate it in the worst way possible.
Meanwhile, Wizards was still trying to claw back what benefits they could, which unsurprisingly was focused on Virtual Tabletops — another sign that Wizards might see digital releases as the future of the game. Most notable was a statement in their new Virtual Tabletop Policy that virtual tabletops (now generally permitted once more) could not include animations! Fans were not amused.
Even an announcement that Wizards would be releasing a minimal set of the D&D 5.1 SRD into the Creative Commons was seen as insufficient, as the released content was to largely be a mechanical infodump, focusing on the parts of the SRD that were most likely not protected as Intellectual Property in any case.
If the OGL 1.2 had been offered from the start, it could easily have succeeded, but with people now reading the contract with a dramatically darker point of view, it didn’t get much traction, as would be evidenced by the survey that Wizards conducted to discover what people thought of their revision.
The Wizards Capitulation
By January 27, Wizards had received survey feedback from 15,000 fans on the OGL 1.2. The results showed just how widespread the discontent was over Wizards’ actions of the previous month.
* 89% of fans were unhappy with Wizards’ attempt to deauthorize the OGL 1.0a. * 86% were unhappy with the Virtual Tabletop Policy. * 88% said they would not publish under an OGL 1.2.
As a result of this drubbing (and perhaps larger financial problems at Hasbro), Wizards announced that they were withdrawing their attempt to deauthorize the OGL 1.0a and that they had released the entirety of the 5.1 SRD (not just a few fragments) under a cc-by-40 Creative Commons license.
Though Wizards’ capitulation was total, there was remaining discontent over their month of threats toward to the OGL, capped by a decision not to close the loopholes that they claimed existed. Resolving that would have required an OGL 1.0b, identical to the OGL 1.0a but with new clauses stating its irrevocability and that there was no actual ability to deauthorize the license. But Wizards thus far has been either uncaring or oblivious to the possibility.
Irrespective of whether the Creative Commons is a better license or not, a general move from the OGL to CC is a big loss because of the huge quantity of Open Game Content (OGC) available under the OGL. That includes the 3.0 and 3.5 SRDs, which have been the basis of many OSR games as well as Pathfinder (2009), any amount of OGC from major supplemental materials such as Unearthed Arcana (2004) and the Psionics Handbooks (2001, 2004), and of course the decades of material added as OGC by tens of thousands of independent designers.
So, despite Wizards’ capitulation, there remains an opportunity for them to improve the situation they created. However, they seem laser focused on D&D 5e (and One D&D) and oblivious to the issues they’ve caused for users of previous game systems.
(It should be noted that there are real arguments over whether the Creative Commons or an OGL-like license is better for the roleplaying industry, contrasting the high level of professionalism for the Creative Commons with the game-specific virality of the OGL.)
Meanwhile, there’s a question of whether Wizards is going to regret what seems like a hasty dump of the D&D 5.1 SRD into the Creative Commons. It obviously wasn’t well-vetted as it contains references to elements previously claimed as Product Identity, everything from Count Strahd to product-identity monsters such as beholders, mind flayers, and the yuan-ti. Those would have been protected as part of a OGL contract, but not under the Creative Commons.
Where Do We Go From Here?
Even if Wizards never resolves the potential problems in the OGL 1.0a, it’s likely that they’ve removed most of their incentive to deauthorize it. Previously, they might have hoped to regain a stronger control over Dungeons & Dragons, but now they’ve ensured they can never do that due to their donation of the 5.1 SRD to the Creative Commons. So any further assaults on the OGL 1.0a would solely be about attacking competitors in the roleplaying space, and that’s unlikely to be worth the massive PR consequences given Wizards’ size compared to the rest of the field.
And the PR consequences this time around were truly massive. Even following a complete reversal of Wizards’ position, they’ve created massive waves in the industry that aren’t going to die down. That’s in large part because they’ve likely destroyed the community’s trust in them as a good-faith actor and in the OGL as a strong foundation for the d20-inspired side of the industry. Absent the release of a “fixed” OGL 1.0b, no large company can depend on it at this point without constantly exposing themselves to the existential threats that revealed themselves this month.
Obviously we don’t know the future, but the following feels like a best guess at what comes next:
- ORC Becomes the New Open License for the Industry. Paizo has confirmed that they’re continuing work on ORC, for release in February. As long as it remains what’s been promised — which is an independent open license that any SRD can be added to, and which doesn’t by default contain a censorious “morality” clause — it’ll likely become the de facto Open License for the industry. Honestly, the release of a variety of non-d20 games from Legend (2011) to Fate Core (2013) under the OGL always felt odd, and this last month has demonstrated why releasing under a license owned by another company can be dangerous; now, ORC can make the larger idea work through true independence. The biggest problem is that the pool of OGC will initially be reset to zero.
- ORC Gets a Few D&D-alikes in its Open Content Pool. However, it could grow quite quickly, and it might even include a D&D-alike game in the near future. We now know that Kobold Press’ Project Black Flag has been in process since last summer, so it’s likely work will continue. It’s currently planned to be released under ORC, and it could become a de facto standard for third-party books meant to supplement D&D, much as Cepheus is for Mongoose’s Traveller.
- The D&D 5.1 SRD Becomes a Major New Open-Content Tool. Meanwhile, it seems obvious that the full D&D 5.1 SRD being rather unexpectedly dumped into the Creative Commons is going to become a powerful new tool. The first generation of the OSR was able to develop the 3e SRD into retroclones of many classic games. This was possible because the SRD contained most of the copyrightable elements of any D&D game, such as spells and classes. The designers just had to carefully work around “artistic presentation”: mechanics from earlier versions of the game that weren’t simple and algorithmic, and thus might be protected under copyright law. The D&D 5.1 SRD could similarly be used to recreate many of those classic retroclones and/or any other version of D&D ever, and it’s not really open to threat like the OGL was, thanks to the strength of the Creative Commons. (An open question for IP attorneys: will it be possible to bridge the CC content into ORC? If so, then ORC becomes much more powerful.)
- Much of the Third-Party Ecosystem Moves Away from the OGL. Obviously, unless Wizards quickly releases a “fixed” OGL 1.0b, a lot of the community is going to move away from the OGL. That’s unfortunate given how much OGC will be left on the table, but a lot of that could also be moved to ORC if desired by the creators.
- Smaller Publishers Continue to Build on the OGL. There’s doubtless also a portion of the market, probably consisting largely of publishers who are not full-time, who will stick with the OGL as good enough, so that they don’t have to rebuild their games and/or the OGC commons. (And obviously this percentage will be a lot larger if an OGL 1.0b is produced, but even then there’s likely to be an exodus, just because of the now-obvious threats of Wizards owning the OGL license.)
- One D&D Remains an Open Question. Finally there’s a question of what happens to One D&D. Is Wizards trying to turn it into a digital-only game as some people suggested during the OGL crisis? Or, will they move it further from the D&D 5.1 SRD now that they’ve released that into the wild? It seems obvious that there is a wide swath of management at Wizards who have no understanding of the tabletop RPG industry or the advantages that the OGL has brought to Wizards over the last few decades. So, these ridiculous options are both possibilities — and could result in a new crisis a year from now. But the current OGL crisis has also likely reminded most third-party publishers why they don’t want to be dependent on Wizards, so trying to lock up One D&D would probably look a lot different from what happened when D&D 4e moved to the GSL: the publishing community may already be moving on.
As a whole, it’s been a very hectic month in the roleplaying industry, probably the most newsworthy since the collapse and purchase of TSR in 1997 … by Wizards of the Coast. TSR had owned D&D for twenty-three-and-a-half years when they died, a number that Wizards surpassed during the pandemic. And now Wizards are the ones in spotlight, with as much negativity directed toward them as there ever was toward T. Whether the’ll be able to rebuild their reputation among that community remains an open question.
This article was originally published as Advanced Designers & Dragons #76 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 has a December coda in “Is the OGL Era Over? (Part Four)”.