OGL 1.1 Rôle'N Play, Dragons, Chroniques oubliées and co... 2020

The Perfidious Treachery of WOTC

Does OGL 1.1 Mean the End of Open Gaming?

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For the last 12 years, my company Autarch has published my game Adventurer Conqueror King System under the terms of the Open Game License (OGL) 1.0. For the last 5 years, ACKS has been my full-time job.

Now, Wizards of the Coast, in what I can only describe as an act of perfidious treachery, has decided to retroactively deauthorize the OGL 1.0 and offer up a new Open Game License 1.1 to replace it.

What does this new license mean? Where do we go from here? Before we go further, please note that while I am a trained attorney (Harvard Law magna cum laude, in fact), I’m not a practicing intellectual property specialist. My thoughts should not be construed as legal advice about what you should do. These are just my thoughts about the situation Autarch has now found itself in, and what we need to do.

Can They Really Do That?!

When people learn that WOTC is deauthorizing the OGL, the first question they ask is “can they really do that?” It’s a fair question. After all, for more than 20 years we’ve all relied on the OGL to be irrevocable.

But the question isn’t whether they can do. They are doing it. Right now, on our watch. No, the question is “who is going to stop them from doing it?”

And the answer might be “no one.”

If you’re under the illusion that we live in a country with a court system that rewards the righteous, allow me to disabuse you of that notion. The American justice system is pay-to-play, and the amount you have to pay is unfathomable to those who haven’t gone through it. I consulted with one of New York’s top IP litigators last week to find out how much money I’d have to raise via GoFundMe to fight Wizards. When I asked him if $100,000 would be enough, he laughed. He said I’d need $500,000 to even have a chance of summary judgment, and $4 million for a trial. Wizards has a war chest measured in millions and will fight this out for 4-6 years.

Imagine if WOTC sued Autarch claiming that my game Ascendant was violating their copyright. Ascendant is a d100 superhero game that has nothing in common with D&D and uses no language from the SRD. WOTC would have legitimate claim whatsoever. If we had $4,000,000 to fight, we’d certainly win. But… we don’t have the money. So, we’d lose.

In real life courtroom dramas, the good guys don’t win. The rich guys win.

But Our Rich Guys Will Fight… Won’t They?

We do have a few “rich guys” that are affected by this situation, foremost among them the mighty Paizo. The OGL 1.1 is certainly an existential threat to Paizo’s business. But does that mean Paizo will litigate?

We can certainly hope so. They would be the greatest champions of the Open Gaming movement if they did. Lisa Stevens is a person of great integrity who has dealt with treachery from WOTC before. Erik Mona has a warriors ethos that has stood him in good stead in the struggle against WOTC. Few people can claim to have beaten WOTC at their own game!

Even so, we cannot be certain that Paizo will fight. In most cases, major companies work very hard to avoid law suits with their well-funded competitors; and even when there are lawsuits, they usually get settled privately in ways that don’t help or affect anyone else.

Imagine this hypothetical: Paizo files a lawsuit against Wizards. A year later, after about $500,000 of expense on motions, they begin to proceed to trial. Their lawyers estimate they have a 70% chance to win. At this point, WOTC now offers to settle, offering Paizo a perpetual irrevocable license for the 3.5E SRD in exchange for Paizo’s agreement not to exploit the 5.1 SRD in any way and other minor concessions. If you’re Paizo, do you spend another $3.5 million and 3 years in trial for a 70% win — or do you take that deal?

Most companies take that deal.

For similar reasons, we can ask whether Disney is really going to litigate with Hasbro over the KOTOR videogame from years ago. I, for one, doubt it. Any differences of opinion between Disney and Hasbro will probably just get worked out by some whiteshoe lawyers in private deals.

So we cannot rely on the hope that some rich litigator, some hero, is coming to save open gaming. We have to assume no one is coming to save us. Perhaps, given sufficient numbers, we could assemble a class action — but how many companies would still be alive after 2, 3, 4 years of being unable to safely invest in new product? Because according to Wizard, if you litigate with them, you immediately lose your license.

But WOTC Can’t Sue Everybody!

Many people believe that small independent studio won’t be affected because they can avoid being noticed. “WOTC can’t sue everybody,” they assert.

Allow me to disabuse you of this notion, too.

WOTC doesn’t have to sue everybody. All they need to do is to persuade the gatekeepers — Kickstarter, IndieGoGo, DriveThruRPG, Amazon, and a handful of other companies — that they are better off cooperating with WOTC than opposing it. Then the gatekeepers will deplatform us when WOTC tells them to.

Think of how easy it is to get de-platformed on YouTube if we use a string of music that’s a little too long, and it gets flagged by Warner Music. Think of how little recourse we have if Nintendo decides our Twitch stream violates their IP. The world we live in is one of centralized corporate control. They don’t have to litigate against us. They can simply wall us off, and leave it to us to sue them — which we cannot afford to do.

WOTC are Idiots If They Think This Will Work!

Another common refrain I’m hearing in the tabletop RPG community is “WOTC are idiots if they think this will work!” Do not make the error of underestimating your enemy. The Vice President and Chief of Staff to Hasbro is a man named Nicholas Mitchell. He spent 11 years as head of legal for Wizards of the Coast. Before that he was a law professor for 11 years specializing in intellectual property licensing. And before that he was an attorney for 3 years at Hughes Media Law Group. That’s 25 years of experience in intellectual property law. In short, Mr. Mitchell is as far from “idiot” as it comes. Whatever fancy legal claims may arise on Reddit (promissory estoppel, etc.), we can be certain he’s already thought about how he’ll handle it.

The New License Can’t Be That Bad, Though?

Since word first began to trickle out that the OGL was being changed, pro-WOTC pundits on the web have urged us to stay calm and not rush to judgment. “The new license won’t be that bad, they just want to take back control of their IP from people abusing the OGL.” Well, now the complete text of the OGL 1.1 has leaked. No, it’s not as bad as we thought — it’s much worse.

Let’s look at a few of the most awful terms found in this utterly egregious agreement:

A. Modification: This agreement is… an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement. We can modify or terminate this agreement for any reason whatsoever, provided We give thirty days’ notice. We will provide notice of any such changes by posting the revisions on Our website and by making public announcements of the changes through Our social media channels.

In this paragraph, WOTC is explicitly deauthorizing the OGL 1.0. Worse, they’re asserting the right to modify or terminate OGL 1.1 in the future without cause with just 30 days notice. Can we build a business on a license that can be withdrawn with a month’s notice? No, we cannot.

What if I don’t like these terms and don’t agree to the OGL: Commercial?

That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project. But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial.

This clause is intended to be reassuring, but it’s anything but. Read the first sentence: "you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023.” Now read the last sentence: “If you want to publish SRD-based content on or after January 13, 2023, your only option is to agree.”

Creating content and publishing content are not the same thing. The way this statement is phrased, WOTC has left it very unclear whether game studios can continue to publish works made under OGL 1.0. The first sentence suggests “yes, you can,” but the last sentence says “no, you can’t.” Until WOTC clarifies its intent, we can’t know for sure. Given how egregious the rest of the terms are, though, I’m not inclined to give them the benefit of the doubt. WOTC could be taking the position that no one is able to publish even existing OGL 1.0 material after the 13th.

Licensed Work includes Licensed Content (what used to be called “Open Game Content”). If the only way a reader can distinguish what You created from what We did is to check Your Licensed Work against the SRD, You are not in compliance with this provision.

In this provision WOTC is demanding that we index and identify every piece of Licensed Content that you use. Given that much of the Licensed Content is entirely embedded in the very vocabulary of RPGs, this is essentially impossible to comply with. I think its designed to be impossible. And that’s unfortunate because it means they can probably terminate us without 30 days notice…

i. We may terminate the agreement immediately if:

a. You infringe upon or misuse any of Our intellectual property, violate any law in relation to Your activities under this agreement, or if We determine in Our sole discretion that You have violated Section VIII.G or VIII.H. To be clear, We have the sole right to decide what conduct violates Section VIII.G or Section VIII.H and You covenant and agree that You will not contest any such determination via any suit or other legal action. To the extent necessary and allowed by law, You waive any duty of good faith and fair dealing We would otherwise have in making any such determination.

b. You breach any other term or condition in this agreement, and that breach is not cured within 30 days of Our providing You notice of the breach by communicating with You as provided in Section VIII.A.

c. You bring an action challenging Our ownership of the Licensed Content, Unlicensed Content, or any patent or trademark owned by Wizards of the Coast.

We know this may come off strong, but this is important: If You attempt to use the OGL as a basis to release blatantly racist, sexist, homophobic, trans-phobic, bigoted or otherwise discriminatory content, or do anything We think triggers these provisions, Your content is no longer licensed.

Here WOTC is asserting the right to retroactively decide that any piece of content we’ve ever made can be dubbed problematic and therefore in violation of the license. They also retain the exclusive right to make this determination, and demand we waive our right to contest their decisions legally. And if we do file a lawsuit, they make that a breach of the license. This is utterly destructive for the Open Gaming movement: No one can safely invest in developing content if under the risk of total obliteration at any time.

Not Usable D&D Content (“Unlicensed Content”) – This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and is not present in the SRD v. 5.1.

Here Wizards is asserting that the existing 3.0E, 3.5E, and 5.0 SRDs are no longer open game content! How this interacts with the deauthorization of OGL 1.0 isn’t clear, but it certainly suggests that they are planning a hardline stance. They also specifically call out “content that has been…produced by… its predecessors”, e.g. the old stuff by TSR, as being unlicensed content. This is a salvo fired at Pathfinder and the entire OSR movement.

To be clear, OGL: Commercial only allows for creation of roleplaying games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes.

At the time this was written, a game studio had just finished developed a computer game version of Autarch’s Domains at War, our OGL mass combat system. This provision puts that entire project in jeopardy, and the projects of virtually ever VTT, YouTube, and Patreon creator around. Again, an unconscionable change of the rules of doing business.

VIII. FUNDRAISING. We don’t object to You crowdfunding for Your Licensed Works, but We need to address concerns about overreaching and prevent the funding of infringing products. Because of that, this section has very specific requirements. If You are planning on crowdfunding, You must read this whole section carefully, and be sure You are fully compliant with it.

A. You may crowdfund, provided:

i. You may only crowdfund the production of Licensed Works.

ii. No infringing materials are given out as perks or rewards.

B. The primary product for Your campaign must be a Licensed Work, such as a campaign setting. You may have stretch goals that are not Licensed Works, provided they do not infringe upon Our intellectual property.

C. Your entire campaign, including stretch goals, is considered one product for the purposes of the royalty threshold.

Read that again. WOTC is asserting that if you sign OGL 1.1, you may only crowdfund Licensed Works. This clause does not say “If your crowdfunding campaign includes Licensed Works, the following applies.” The terms here are unlimited in their scope. Imagine we signed this agreement, and then later wanted to run a crowdfunding campaign for, say, a card game, a movie, a better jukebox. Sorry, we’re no longer allowed to: You may only crowdfund the production of Licensed Works. Yes, that’s absurd and unreasonable — but this entire agreement is absurd and unreasonable, and if I didn’t know it was real, I’d assume it was a satire.

Worse, if we do crowdfund, the whole campaign counts as one product for royalty purposes. Did we want to do a crowdfunding campaign for our OGL 1.1. sourcebook with custom miniatures? We’ll pay royalties on the miniatures, not just the book.

And now the finale…

B. You own the new and original content You create. You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose,

A. Nothing prohibits Us from developing, distributing, selling, or promoting something that is substantially similar to a Licensed Work.

This is the money shot. I’ve presented these in reverse order because it makes it more clear exactly the situation this license puts us in. If Autarch were to sign OGL 1.1, we would be giving WOTC a perpetual irrevocable royalty-free license to all of our new and original content. There is no provision to exclude what used to be call “product identity.” Wizards has proclaimed that ITS license to us is revocable at any time, but if we use its license, then we give it an irrevocable license. This is beyond unconscionable — it’s grotesque.

And, of course, having secured the rights to all of our work if we sign, WOTC explicitly claims the right to make substantially similar products. Did we have an innovative monster? A fresh new setting concept? It’s WOTC’s now and they can do what they want with out, without attribution, without royalties.

To summarize it all: Under the old Open Game License, the licensor made its content open to the licensee. But under the new Open Game License, the licensee makes its content open to the licensor!

What Is to Be Done?

So here we are. It feels surreal. I’ve been writing OGL material for 12 years and now it’s all in jeopardy. What is to be done?

The OGL 1.1 is a non-starter. From its unconscionable claim on licensee IP to its grotesque provisions for termination, it is entirely unacceptable to us. Autarch will not agree to its terms. If that’s the hill we die on, so be it.

The OGL 1.0 is unreliable. What does being deauthorized actually do? No one knows, and only a court can say for sure. What does WOTC mean when it says that after January 13, 2023 we can’t “publish” work under the original OGL — does it mean publish new work, or publish legacy work? No one knows except Nick Mitchell, and he isn’t talking. An unreliable license is no basis to build a business on.

Therefore, the only choice is to abandon the OGL entirely. Going forward, Autarch will no longer produce material under the Open Game License. We will be launching our upcoming Adventurer Conqueror King System: Imperial Imprint (ACKS II) in May without any WOTC SRD material. We will put in place a new license - a truly open license — that will make the core rules of ACKS II available to every other OSR developer in the space. And all of our future products, on DriveThruRPG, Kickstarter, Patreon, and elsewhere, will be released to be compatible with ACKS II or Ascendant, not with anything owned or touched by WOTC.

Whether we will be able to continue to publish our existing OGL games remains to be seen. Our intent is to continue to do so until forced to stop. Whether we will be de-platformed also remains to be seen. If so, we will find or build new platforms. I’ve done it before.

To my comrades in the OSR community — I know that your situation is similar to mine, perhaps even more difficult if your game of choice is closer to TSR/WOTC’s designs. What will happen to OSE — can a perfect replica of BX be sustained without the OGL? What will happen to DCC? What will happen to LL, to LOTFP? Every developer in the OSR is endangered. I welcome any and all collaborators who would like to build on ACKS II and support any independent efforts you are making to help reclaim a space for open OSR gaming. Reach out, friend.

To my comrades in the 5E community — You deserved so much better from WOTC than you have been given. I was gratified to learn that a number of independent developers are already working on a 5E-compatible but WOTC-free SRD that will be available under the creative commons. These fine people have the right idea and I hope they will gain your support. My own work is not and has never been 5E compatible, but these efforts have my full support all the same.

With the deauthorization of OGL 1.0a and the release of OGL 1.1, Wizards of the Coast has attempted to bring an end to the open gaming movement which has made our hobby more popular than ever. But if our movement sticks together, this does not need to be the end of open gaming. This can be a new beginning.

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