The incredible firestorm surrounding the attempt by Wizards of the Coast to snuff out any Dungeons and Dragons but theirs has finally yanked WotC back to some semblance of reality. But are they really stepping back? Or is this just more smoke screen and lies? It looked pretty humble until we gave things a closer look.
The statement is by Kyle Brink, the new D&D producer, who did not have an account on the D&D Beyond web site more than 15 minutes before posting this latest missive. He’s not responsible for this messaging. He’s the WotC scapeboat. Wizards of the Coast is hoping that Brink’s name will bump the search results and put his name on this mess instead of theirs.
It almost goes without saying that the author of this article is not a lawyer, and that nothing here should be construed as legal advice.
If you have questions, consult your own legal counsel, and do not rely on statements made here.
This new statement is just more gaslighting and smokescreen, and is a delaying tactic.
Nothing — Repeat, NOTHING — Has Changed
Our first take on this is that this new statement has changed absolutely nothing over their previous response. They have conceded nothing.
Wizards of the Coast’s backpedal from last week tried to pretend that nothing about the OGL would change with respect to most creators (it will), and that the leaked OGL 1.1 that had been sent to a handful of creators for them to sign wasn’t actually the finished version of the document but a draft sent to them to open a discussion about what should be in it.
No. No it freaking wasn’t. It was sent out under an NDA, and the only reason we know about it is that some brave soul decided to leak it. That doesn’t sound like an open discussion to us. They’re still lying to us about this.
Their Latest Attempt to Smooth Things Over
Posted on the D&D Beyond web site at approximately 9 AM Pacific Time this morning is the following open letter from Kyle Brink, the Executive Producer on Dungeons and Dragons. Notable is the fact that they’re now doing what they should have done in the first place: apologize, and take it all back.
Hi. I’m Kyle Brink, the Executive Producer on D&D. It’s my team that makes the game we all play.
D&D has been a huge part of my life long before I worked at Wizards and will be for a long time after I’m done. My mission, and that of the entire D&D team, is to help bring everyone the creative joy and lifelong friendships that D&D has given us.
These past days and weeks have been incredibly tough for everyone. As players, fans, and stewards of the game, we can’t–and we won’t–let things continue like this.
I am here today to talk about a path forward.
First, though, let me start with an apology. We are sorry. We got it wrong.
Our language and requirements in the draft OGL were disruptive to creators and not in support of our core goals of protecting and cultivating an inclusive play environment and limiting the OGL to TTRPGs. Then we compounded things by being silent for too long. We hurt fans and creators, when more frequent and clear communications could have prevented so much of this.
Starting now, we’re going to do this a better way: more open and transparent, with our entire community of creators. With the time to iterate, to get feedback, to improve.
If this sounds familiar, it’s because it’s how we do it for the game itself. So let’s do it that way for the OGL, too.
We’ll listen to you, and then we will share with you what we’ve heard, much like we do in our Unearthed Arcana and One D&D playtests. This will be a robust conversation before we release any future version of the OGL.
Here’s what to expect.
- On or before Friday, January 20th, we’ll share new proposed OGL documentation for your review and feedback, much as we do with playtest materials.
- After you review the proposed OGL, you will be able to fill out a quick survey–much like Unearthed Arcana playtest feedback surveys. It will ask you specific questions about the document and include open form fields to share any other feedback you have.
- The survey will remain open for at least two weeks, and we’ll give you advance notice before it closes so that everyone who wants to participate can complete the survey. Then we will compile, analyze, react to, and present back what we heard from you.
Finally, you deserve some stability and clarity. We are committed to giving creators both input into, and room to prepare for, any update to the OGL. Also, there’s a ton of stuff that isn’t going to be affected by an OGL update. So today, right now, we’ll lay out all the areas that this conversation won’t touch.
Any changes to the OGL will have no impact on at least these creative efforts:
- Your video content. Whether you are a commentator, streamer, podcaster, liveplay cast member, or other video creator on platforms like YouTube and Twitch and TikTok, you have always been covered by the Wizards Fan Content Policy. The OGL doesn’t (and won’t) touch any of this.
- Your accessories for your owned content. No changes to the OGL will affect your ability to sell minis, novels, apparel, dice, and other items related to your creations, characters, and worlds.
- Non-published works, for instance contracted services. You use the OGL if you want to publish your works that reference fifth edition content through the SRD. That means commissioned work, paid DM services, consulting, and so on aren’t affected by the OGL.
- VTT content. Any updates to the OGL will still allow any creator to publish content on VTTs and will still allow VTT publishers to use OGL content on their platform.
- DMs Guild content. The content you release on DMs Guild is published under a Community Content Agreement with Dungeon Masters Guild. This is not changing.
- Your OGL 1.0a content. Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a.
- Your revenue. There will be no royalty or financial reporting requirements.
- Your ownership of your content. You will continue to own your content with no license-back requirements.
That’s all from me for now. You will hear again from us on or before Friday as described above, and we look forward to the conversation.
Executive Producer, Dungeons & Dragons
The Lies Continue
While the tone of the latest missive is improved, we’re still being gaslit. WotC is uttering soothing words without actually giving us anything the original OGL 1.0a didn’t guarantee us, so they’re not actually giving us anything we didn’t already have.
Still missing from the open letter is a promise that they will not attempt to “deauthorize” the original OGL 1.0a licensing agreement. From this perspective, nothing has really changed except the tone of the letter. They obviously still plan to rewrite the OGL and sunset the old agreement (which we believe they cannot do), so any promises of us keeping our right to publish our content under the new OGL would be conditional on acceptance of the terms of the new agreement (which nobody has seen). What does it matter if we’re allowed to publish under the new OGL if the other conditions are so onerous that nobody can meet them?
The rest of the TTRPG world wants them to abandon any thoughts of rewriting the OGL, yet Wizards of the Coast is hell bent on changing a document which has served both WotC and the gaming community well for 23 years. We, and they, have thrived, and under it, WotC’s Dungeons and Dragons has become more popular than at any time in the game’s history.
Specifically, there is this line in the above:
Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a.
The statement is a sticking point. They’re saying we can continue to publish anything released under the OGL 1.0a. However, what is apalling by its absence is the subsequent statement that we can continue to make new things under the original agreement. Wizards of the Coast has changed its approach and is now accepting feedback over a two week period. Two weeks isn’t long enough for anybody with a dog in the fight to even properly analyze what’s being proposed, let alone formulate a response.
So much of this mess hinges on the word “irrevokable”. The argument is that this word, separate from the phrase “in perpetuity”, is absent from the original OGL 1.0a agreement. Contract law currently generally asserts that unless a contract says in it that it is irrrevocable, then it’s revocable.
The problem with this is that 20 years ago, open source licenses did not require the word “irrevocable” in order to be irrevocable. The phrase “in perpetuity” covered the concept.
Also missing from the new statement is anything mentioning that Wizards of the Coast won’t reserve the right to change the agreement at any time. This would effectively render any reliance on the new OGL to be foolish and dangerous, since WotC could arbitrarily change and rearrange the rules at the slightest whim.
Wizards of the Coast will have a very hard time with this whole OGL replacement idea. Here are four big reasons why:
- In contract law, there is something called the “Four Corners Rule”: if it isn’t within the four corners of the original document, it legally doesn’t exist. The original OGL makes no mention of “deauthorization”, only “authorization”. Therefore, there is no process by which the OGL can be deauthorized. In particular, “deauthorization” is not even a legal concept. This is not a thing. In absence of a description of what that means in the original OGL, there should be no way to just make up a definition after the fact and pretend it applies. Hasbro has a lot of money riding on this. They might find a way, but it’s unlikely. They’re pressing on the very veins and arteries of law itself here..
- There is also something called “Promissory Estoppel”, which prevents companies from entering into contracts, getting people to rely on their words and actions over time, and then arbitrarily revoking or removing terms within those contracts to the damage or detriment of participating parties to the contract. Revoking the original OGL would stop game companies from releasing any new content based on the OGL and would cause them serious harm.
- “Original Intent” is a legal doctrine that maintains that in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the contract to accomplish, the actual text of the document notwithstanding.The people who originally wrote the OGL for WotC 23 years ago are still around, and they mostly all work for Paizo now, the creators of the D&D workalike games Pathfinder and Starfinder. They will testify in court, if needed, to the original intent of the OGL 1.0a,
- WotC is trying to claim that because the word “irrevokable” doesn’t appear in the original OGL contract, that makes it “revokable”. This is widely considered to be a pretty thin argument, but it is the entire basis for their claim to be able to revoke it. Specifically, back when the OGL 1.0a was written, it was sufficient to say that the document applied “in perpetuity”. The OGL was modeled on open source licenses, and the word “irrevocable” did not appear in them either. Though individual cases have been won and lost on either side of the GNU Public License, the GPL itself has never been successfully challenged since its creation by Richard Stallman in 1989. The GPL doesn’t contain the word “irrevocable”, so it would be easy to argue that the OGL wouldn’t need it either and could not be revoked.
In opposition to these four issues, all the Wizards of the Coast has is the argument that missing word “irrevokable” means they can pull the tablecloth out from under the table settings. Their entire argument appears to hinge on this one very fragile point, along with the apparently mythical concept of deauthorization, which has no meaning at all in contract law. We believe they’re just hoping everybody’s too afraid to take them on it court where they’d have to prove it.
These four issues are really pretty big ones, and even with limited knowledge of the law, they were easy to identify.
Just imagine what a judge will do with it.
End of Quarter Reporting Will Tell the Tale
Major news outlets like Motley Fool, The Guardian, Forbes, and Financial Times (paywall) are carrying the story now. It’s climbing outside the nerdosphere and getting covered in mainstream media where the investors can see it. Not a single one of these articles is painting WotC in a good light over this.
As the Motley Fool puts it in their article,
The company may eventually come out with a new OGL, but the chances of this document generating significant income for Hasbro now appear to be nil — while the damage to the company’s reputation is considerably more than nil.
Do we trust them at this point? After what they’ve put us all through, do we have any reason to?
The #StopTheSub movement has resulted in the loss of over 40,000 subscribers to the D&D Beyond service as far as we know today. That service has since removed the Unsubscribe feature from their web site and forces you to file a trouble ticket, and makes you jump through an inordinate number of hoops to unsubscribe, but since it’s a trouble ticket system now with tens of thousands of backlogged tickets, it ends up being a “we’ll get to it when we get to it” situation.
Hasbro, WotC, fix this hot mess. Now.
We want to hear them say the words. They’re still trying to gaslight us into believing that they can and will try to revoke the license and create a new license that makes it impossible for existing established gaming companies to stay in business. If you’re a small company, you can’t afford to go toe to toe with Hasbro even if you’re totally in the right. Even just having to defend yourself against a frivolous lawsuit could bankrupt a small company within the first month of proceedings.
There are a lot of dissenting voices, many of them actually lawyers, who have grave doubts that they even have the ability to do this, but we want to hear WotC say it.
Come on, WotC, you can do it: “We’re making a new Open Gaming License, but you can keep creating new content under the old one, just like it says in black and white. Forever.”
President of Krypton Media Group, Inc., radio personality and station manager of SCIFI.radio. Part writer, part animator, part musician, part illustrator, part programmer, part entrepreneur – all geek.