The OGL, or Open Game License, is Wizards of the Coasts’ guarantee that you can make any third party stuff for Dungeons and Dragons you want to without having to worry about paying them royalties—or it used to. Now Wizards of the Coast, a division of Hasbro and owners of the Dungeons and Dragons gaming system, have decided to make what appear to be radical and draconian changes to this licensing agreement. For starters, they want to kill it.
A copy of the upcoming agreement, OGL 1.1, has been leaked to Gizmodo, and it contains some remarkable revisions. One of the most remarkable changes is that the original OGL, which purported to grant third parties the right to create and market their Dungeons and Dragons add-ons and work-alikes in perpetuity and without having to pay royalties, is being revoked. How that jibes with “in perpetuity”, we’re having trouble understanding.
None the less, the OGL has always been a revokeable license, just not in blanket terms. WotC had a clause in version 1.0a of the agreement that said that they could revoke a license if, after having been given advance notice, a third party content producer had not addressed their objections to what they were producing within 30 days. Apart from that, it appears that WotC doesn’t have the legal authority to simply cancel the agreement, or nullify it, or render it inoperative in any way. The original OGL contains language that strongly suggests that it is meant to be a safety net to allow others to create content without worrying about the legalities of it.
No part of this artcile should be construed as legal advice. It was not written by a lawyer.
For more, see the next article, SHOTS FIRED! PATHFINDER PUBLISHER PAIZO TO CREATE NEW OPEN RPG CREATIVE LICENSE (ORC)
One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement.” By ending the original OGL, many licensed publishers will have to completely overhaul their products and distribution in order to comply with the updated rules. Large publishers who focus almost exclusively on products based on the original OGL, including Paizo, Kobold Press, and Green Ronin, will be under pressure to update their business model incredibly fast.
The new agreements states that “the Open Game License was always intended to allow the community to help grow D&D and expand it creatively. It wasn’t intended to subsidize major competitors, especially now that PDF is by far the most common form of distribution.”
This sentiment is reiterated later in the document: The “OGL wasn’t intended to fund major competitors and it wasn’t intended to allow people to make D&D apps, videos, or anything other than printed (or printable) materials for use while gaming. We are updating the OGL in part to make that very clear.”
In point of fact, it doesn’t mention any particular differentiation of content format—only “Content”, which can be anything, and is not just limited to printable materials, so pretty much any content that expands on materials published by Wizards of the Coast appears to be allowed, without regard for the medium of that content.
The Actual Impact
The complaints by WotC that they should have seen all this coming 20 years ago and they’re fixing it now seems like an “Oh, oops!” But, just because it didn’t occur to them doesn’t mean they can necessarily arbitrarily revoke those rights after 20 years of taking no action, especially after a bunch of businesses based their entire business model on the permissions granted in the OGL.
All Your IP Now Belongs to Us
Another change is that Wizards of the Coast, in the new OGL, is claiming that it will have the right to use your content, without compensation, without limit. It can also terminate your agreement, meaning that while it’s unlikely that they would actually do this, they would have the legal means to begin publishing your creative content, pay you nothing for all your work, then revoke your license so that you can’t sell it yourself either.
To say that the tabletop RPG world is tweaked about this would be a rather dramatic understatement.
The new One D&D OGL adds a lot more red tape for third-party creators to go through. Any commercial publisher who sells homebrew Dungeons and Dragons content with this OGL will be required to register their products and earnings, no matter how much they make, though royalties will only be required for revenue made in excess of $750,000.
The language of the original agreement, however, seems to suggest that none of what Wizards of the Coast is attempting to do with Dungeons and Dragons is legal. WotC can revoke the license for any reason, but it can’t be done as a blanket, universal move. It can only revoke a publisher’s license if it finds something specific objectionable about what that publisher is doing with its intellectual property, and that publisher has to be given specific notice that it’s happening and why it’s happening. That means that yes, Wizards of the Coast can revoke your protection under the OGL, but it has to do this on a per-person or per-company basis.
The implication is that since the original OGL cannot be rescinded, producers are free to accept any version of the OGL they like.
An attempt to rescind the 1.0a version of the OGL would affect a large chunk of the TTRPG industry, including the following publishers:
- Alderac Entertainment Group/Crafty Games, Spycraft 2.0
- Amarillo Design Bureau, Inc., “Prime Directive d20”, “Prime Directive PD20 Modern”
- Bards and Sages, Neiyar: Land of Heaven and the Abyss, Koboldnomicon
- Editora JBC, Defensores de Tóquio – Manual 4D&T
- Evil Hat Productions, Fate, Spirit of the Century, The Dresden Files RPG
- Green Ronin Publishing, True20 Adventure Roleplaying Game, Mutants & Masterminds Roleplaying Game
- Mongoose Publishing, OGL Ancients, OGL CyberNet: Cyberpunk Roleplaying, OGL Horror, OGL Manga, OGL Steampunk, OGL Wild West
- Necrotic Gnome, Old School Essentials,
- Lucasfilm Arts / Disney: Star Wars: Knights of the Old Republic
- Paizo Publishing, Pathfinder Roleplaying Game, Starfinder Roleplaying Game
- Pinnacle Entertainment, Pathfinder for Savage Worlds.
- Shewstone Publishing LLC, Magonomia, the RPG of Renaissance wizardry
- Skirmisher Publishing LLC, Nuisances
- Spica Publishing, third party publishers of products for the current edition of the Traveller SF RPG.
Wizards of the Coast reported in their annual shareholder meeting last December 20 that they made almost $1B last year alone on Dungeons and Dragons. It’s hard to imagine them not taking a tremendous hit after this attempt to yank the rug out from under their own consumer base.
WotC tried this gambit once before, when they introduced the widely panned Dungeons and Dragons 4.0. The gameplay was terrible, and the licensing agreement that went with it was, from reports, equally onerous, to the degree that few third party producers agreed to it. Paizo’s Pathfinder found fertile ground in a market that loathed D&D 4.0, both from a player and from a commercialization standpoint.
What’s Being Done About It
Essentially, there are basic rules of law that say that you can’t issue statements, have people depend on those statements to their detriment, and then change your mind later and change the rules without their consent.
Estoppel in pais (also called equitable estoppel) is a defense doctrine that prevents a party from using a right against another party when the right arises out of misleading actions from the person claiming the right.
One Tyler A. Thompson, an attorney at The Corporation Trust Company of Wilington, Delaware, represents two tabletop RPG publishers, Sad Fishe Games LLC anbd Prudence Holdings, LLC (aka Prudence Publishing). In a letter he sent to Wizards of the Coast on January 5, he explores the doctrine of estoppel in pais and states the following:
“Section 4 of the 1.0a Open Gaming License grants, from Contributors to include Wizards of the Coast and everyone who has used the license since, a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of [the] License to Use, the Open Game Content.” It is quite clear from this language that the license cannot be revoked, nor can Wizards of the Coast stop its future use.
“Section 9 authorizes Wizards to publish updated versions of the license, but also grants permission to “use any authorized version of this License to copy, modify, and distribute any Open Game Content originally distributed under any version of this License.” Some leaks suggest Wizards indends to claim the 1.0a license is no longer an “authorized version”, forcing future Contributors to use the 1.1 license. Notably, “authorized version” is not a defined term in the license. As you know, ambiguity in agreements such as these office whenever a dispute arises are interpreted against the drafter — the drafter being Wizards of the Coast. Even read charitably, Section 9 clearly does not empower Wizards to compel others to use only a new version. Quite the opposite, it appears to empower Contributors to use either version if desired.
“Section 13 sets forth the sole condition of termination of the license, namely a failure to cure any breach of it terms within 30 days of notice of a breach thereto. Outside of what is given, Wizards has no authority to terminate the license, both with respect to prior published content and future published content under the license.”
Thompson goes on to point out that the above interpretation is supported universally across U.S. courts, and he suspects more strongly so in European courts. WotC’s conduct over the past 23 years also supports this interpretation. From their own web site, in a FAQ published in 2004 but since removed by WotC, comes this Q&A:
Q: Can’t Wizards of the Coast change the License in a way that I wouldn’t like?
A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an early version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could contineuto use an earlier acceptable version as your option. In other words, there is no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.”
This is WotC telling us the correct way to interpret Section 9, and it’s how most people have been using it. Moreover, it’s been 23 years, and if Wizard had a problem with how the document was being applied by Dungeons and Dragons third party creators, they’ve had two decades to say something. There is a legal concept called “equitable estoppel”, which basically means that you can’t just let people do something under one agreement and then pull the rug out from under them afterwards.
Thompson goes on to say that he thinks the legal foundations of the new OGL are so unsound that the document couldn’t possibly be what WotC is actually thinking of implementing, but just in case it is, if Wizards of the Coast doesn’t respond to his office by January 15, 2023, that his office is going to start preparing a class action suit against them.
He closes his letter with the following:
“To be entirely clear, if it is the intention of Wizards or Hasbro to repudiate the 1.0a license and bully publishers such as my clients into accepting less favorable terms under the 1.1 license, creators are not going to be bullied. The Courts will ensure this at the end of the day.”
There is a potential fly in the ointment. The language used in legal documents often differs slightly from the commonly accepted definitions for that language. In case of point, “perpetual” does mean “without limit”, but it does not mean “nonrevokeable”. Wizards of the Coast is arguing that the OGL can be updated by them at any time, and that they have the right to “unauthorize” older versions of the license.
However, the OGL expressly states in section 9:
9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.
Everything seems to hinge on this word “authorized”, which in the 1.0a version of the OGL, released in 2000, fails to define. Wizards of the Coast seems to think they can toggle authorization on or off at will. However, a more rational reading of this section would suggest that signees are free to use any version of the OGL that had been an authorized release at any point in time, and without specific language in the document explaining otherwise, the courts tend to favor those parties constrained by the contract.
Simply put, according to this language, if you’ve agreed to any previous version of the OGL, Wizards of the Coast should not be able to simply take that away from you. Implicit in the use of the word “authorized”, sans express definition, is the implication that the authors of the agreement meant to say “any previously authorized” version of the document. If the courts see it that way, Wizards of the Coast’s entire house of cards collapses. Ryan Dancey, who spearheaded the creation of the OGL for Wizards of the Coast 23 years ago, has indicated a willingness to testify in that regard.
Another hinge point is the word “nonrevokeable”. This word does not appear in the original OGL, and in its absence, the courts generally assume contracts to be revokeable. However, this is counterbalanced both by the express statement that you may use any authorized version of the agreement that works for you, together with specifications in the document that it can be revoked only under specific circumstances by WotC, and only once you have been made aware that you’re in breach of the agreement. This language appears to suggest that Thompson is correct and that WotC doesn’t have the power to simply revoke the entire original OGL as a blanket action.
The letter from Tyler A. Thompson, attorney at law, was published in the Pathfinder2E Reddit forum, where it was stated that permission is given to share the document. That letter is reprinted below.
A WotC employee – who’s identity and confirmation of employment at WotC has been confirmed by journalist Codega of Gizmodo – explains management’s thought process, how the fan backlash is being processed, and the metric being used by WotC management (D&D Beyond subscriptions/cancellations) to gauge the fallout in hard (financial) numbers.
Other industry insiders have confirmed the veracity of the email and its sender as well.
The short answer is that WotC management doesn’t value the fanbase, but just the money it spends. If you have an active DnD Beyond subscription and want to protest, cancel it until OGL 1.1 is withdrawn.
Here is the transcript of the original email, presented verbatim:
“I’m sending this message because I fear for the health of a community I love, and I know what the leaders at WotC are looking at:
-They are briefly delaying rollout of the OGL changes due to backlash.
-Their decision making is based entirely on the provable impact to their bottom line.
-Specifically they are looking at Beyond subs and cancelations as it is the quickest financial data they currently have.
-They are still hoping the community forgets, moves on, and they can still push it through.
I have decided to reach out because at my time at WotC I have never once heard management refer to customers in a positive manner, their communication gives me the impression they see customers as obstacles between them and their money, the Beyond team was first told to prepare the new OGL changes and online portal when they got back from the holidays, and leadership doesn’t take any responsibility for the pain and stress they cause others. Leadership’s first communication to the rank and file on the OGL was 30 minutes on 1/11/23. This was the first time they made any effort to communicate their intentions about the OGL to employees, and even in this meeting they blamed the community for over-reacting.”
Apparently Wizards of the Coast is fully aware that they will get bad PR from the release of the new gaming license. They just do not care.
In this reporter’s opinion, it is time to vote with our feet. Cancelling your subscription to D&D Beyond is the only thing they’re looking at, so let’s hit them there.