Response to the OGL 1.2 Survey

Wizards of the Coast has put out their survey about the new draft for their Open Game License version 1.2.

I’m not a lawyer, but I’ve spoken with one (as well as other creators, some of whom have also spoken with lawyers) about some of the changes contained in this licence and the potential consequences and risks that its terms pose to creators.

The long and the short of my opinion on the new OGL draft is that it is unacceptable. I’m sharing my answers to the survey in order to help illuminate others about what WotC is doing.

What is the OGL?

If you’ve never heard of the OGL, its the foundation for most of the current tabletop RPG (TTRPG) industry. The current version, enumerated 1.0a, has been around since 2000 and has been critical in growing D&D into the world’s largest roleplaying game.

Additional information can be found in this article examining WotC’s statement on January 13th, 2023.

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[Editor’s note: Because of the survey’s first question’s broad nature, the response is much more substantial than subsequent answers, some of which repeat certain elements of the first response. Don’t expect whole essays for each response. Some formatting has been adjusted to enhance readability.] 

Now that you’ve read the proposed OGL 1.2, what concerns or questions come to mind for you?

PREAMBLE

WotC’s attempt to de-authorize OGL 1.0a is an act of bad faith and is ethically and legally indefensible. The creators of 1.0a, as well as your own website, clearly stated that 1.0a was never intended to be revocable, and the licence declares itself to be perpetual (which negated revocability in the prevailing legal parlance at the time 1.0a was written). WotC can’t expect us to ever trust you to honour the terms of a licence again if you persist on this course. What you can expect are lawsuits.

If you want to win back the community’s trust, you will abandon this attempt to de-authorize 1.0a, publicly admit that it is not revocable, and waive your rights to ever attempt to de-authorize, cancel, or otherwise negate the licence as a whole. Too much of the TTRPG industry is based on 1.0a for any new OGL that tries to de-authorize 1.0a to be acceptable to me and to the community at large, no matter how sweet the new deal would be. It would signal that anything WotC offers it also feels entitled to take away, which is a mentality that I as a creator and a player simply can’t work with.

OGL 1.0a is forever. Until WotC concedes this, they will be at odds with the community.

Furthermore, I’m not moved by your decision to release content under the Creative Commons licence. OGL 1.0a allows creators to use all 403 pages of SRD 5.1. Separating out 58 of those pages—a selection that doesn’t include races, classes, spells, monsters, or even the planes—to be published as CC BY 4.0 content is, basically, an empty gesture. It’s less than 1/6th of the material to which creators have already been granted perpetual rights, and doesn’t sufficiently support any project other than the most agnostic d20 adventure.

All that said, it’s WotC’s prerogative to create a new OGL under which you can publish the rules of D&D’s next edition (OneD&D/6th edition). It’s from this perspective that I’ll be answering this survey, not out of any agreement that the new licence would be valid as a replacement for 1.0a in using content previously designated as open game content under that licence.

CONCERNS ABOUT OGL 1.2:

The draft version of OGL 1.2 has several glaring problems, outlined below.

(1) REVOCABILITY. The draft states that you offer this as an irrevocable licence, but you go on to include the following definition of ‘irrevocable’ in parentheses: “content licensed under this license can never be withdrawn from the license”.

This does not constitute true irrevocability. A truly irrevocable licence is one that can be used even if a subsequent version is released, like OGL 1.0a was stated to be (see above). Using evasive and misleading language like this is an enormous red flag that does nothing to assuage the community’s doubts of WotC’s integrity and sincerity.

(2) MODIFICATION/TERMINATION. The so-called ‘Darth Vader clause’ from your earlier OGL 1.1 has not been effectively defanged. Obvious concerns here include:

– WotC’s ability to modify attribution requirements with only 30 days’ notice, which poses enormous risk exposure for creators who deal with print. For example, if I printed 1,000 books to debut at a con six weeks later and WotC modifies the attribution requirement 31 days before the release date, I’d be out thousands of dollars and probably unable to re-print the books before the convention. Under the current licence terms, WotC could effectively prevent third-party creators from ever selling hard copies of OGL-reliant books by consistently tweaking this section of the licence.

– WotC’s unilateral ability to cancel licences with no appeal over such things as legal action and artistic interpretation requires a level of good faith that is unacceptable to any reasonable creator, and much less so when that good faith must be invested in you with your history of bad faith actions in matters of licensing. This concern feeds into other concerns that are described below.

(3) ROYALTIES. While OGL 1.0a states that it is “perpetual, worldwide, royalty-free, [and] non-exclusive”, the new licence states only that it is perpetual and non-exclusive, both of which have caveats disguised as explanatory notes. Notably absent is the term ‘royalty-free’.

Whether or not the current draft of the OGL includes a royalty structure is immaterial when such things can be inserted into the sections of the licence WotC has retained a right to modify using any manner of sneaky legal loopholes you can contrive, as you have sought to contrive a means by which you can revoke OGL 1.0a by referring to the process as ‘de-authorization’. Language—even legal language—evolves over time, and who can say what retroactive misinterpretations WotC might seek to apply to this licence in a month, a year, or even another 23 years? Utmost clarity is needed in this matter.

(4) MORALITY CLAUSE. Section 6(f) demands creators allow WotC to be the morality police over matters of art. This is unacceptable.

Nobody wants bigotry in the game, but the last few years have proven that what is “harmful, discriminatory, […] obscene, or harassing” can be subjective, and it’s concerning that WotC demands the sole right to decide what falls under this category. It presents too easy an excuse behind which WotC can hide as it terminates licences of those who you disagree with.

For instance, I include the term ‘race’ in my own content as it refers to the well-established medieval fantasy term for a discrete, sapient species such as dwarves and orcs. Additionally, some of the races that appear in my content demonstrate a bent or incomplete moral compass as a result of their innate natures or fantastical origins (they were created by evil gods, afflicted with supernatural curses, or formed from planar essence aspected toward a certain alignment). This is done solely as an exercise in fantastic worldbuilding, not as an extended allegory where fantastic races are presented as analogies of real-life human ethnicities. And yet, the latter interpretation—flawed as it may be—is something that certain individuals have espoused about my work. Under the terms in this draft, WotC could use such a flawed interpretation of my work as a justification to terminate my licence, allowing me no legal recourse to dispute the decision. That is unacceptable.

You yourselves have been on the receiving end of this misinterpretation recently with the hadozee race. When Spelljammer: Adventures in Space was released, people took certain images out of context, misinterpreted terminology like ‘deck monkey’ (a pun along the same lines as ‘code monkey’ or ‘grease monkey’ that had no associations to real-world ethnicities), and twisted the ‘ascended animal’ trope into some sort of ‘white saviour’ narrative. While WotC clearly didn’t intend to present the hadozee as an analog for people of certain African, south Asian, or other ethnocultural descent that critics proposed based on their own personal interpretations, you eventually issued an apology in the face of public outcry. If you aren’t willing to fight for yourselves, creators can’t trust you to not simply cut them loose the moment someone on social media comes up with a bad take on their content, especially if cutting the creator loose would bolster WotC’s public image.

(WIZARDS OF THE COAST) The image on the left has been frequently
cut out and used on its own by critics, who compare it to minstrel art

Any version of this clause that doesn’t offer a creator ironclad protections against, and recourse to dispute, terminations based solely upon subjective interpretations of their content is completely unacceptable. Art is simply too subjective for “trust us to know what’s hateful” to suffice as an assurance. WotC needs to identify a process by which such determinations are made, such as a neutral, third-party arbiter experienced in forms of protected expression, and allow provisions for appeal. Creators can’t accept WotC’s reactionary decisions based on public opinion as a legally binding mechanism of resolution.

Or, better yet, WotC just needs to stop pretending that you have the capacity, qualification, or authority to be the morality police. Make the creator product badges less similar to your own trademarked logo and stipulate that creators must include a disclaimer that indicates their third-party content is not approved or endorsed by WotC and isn’t representative of your philosophies or opinions (basically, strengthening section 6(d) of the current OGL 1.2 draft). This way, your brand image will be protected from association with any objectionable material and you won’t be drawn into a quagmire of vetting third-party content after it’s been published and circulated, a path that would almost certainly lead you to run afoul of freedom of expression laws.

(5) INTELLECTUAL PROPERTY. The entirety of section 3, with the added terms from sections 9(e) and 9(g), basically reads, “You own your content, but you can’t sue us for copying it. Not that we will, but you agree that if we do you’ll have to go through an extremely expensive legal process, all so that we would pay you peanuts simply as a cost of doing business, which you promise to not interrupt. Again, not that we would do this, but you agree to let us basically get away with doing it. Even though we won’t. Trust us.”

It’s well established that game mechanics, including gameplay, rules, and procedures, are not protectable expression (i.e. copyrightable), only their artistic expression. Court cases have upheld this. No lawyer would take on a case against WotC for anything short of blatantly ripping off protected expression, meaning that everything after the second sentence of section 3 is effectively reserving limited rights for WotC to use a creator’s intellectual property without permission or credit in exchange for a miniscule royalty the creator would have to fight for. It’s a nefarious, backdoor licence-back provision to replace the blatant one we already rejected.

(6) LEGAL OVERREACH. I’ve touched on this topic several times already above, but the concerns here are enough to warrant their own section.

There is considerable legal overreach by WotC in this document. Sections 3, 9(e), and 9(g) make it practically impossible for creators who publish under this licence to hold WotC to account for contract violations, and sections 6(f) and 7(b)(i) make it all too easy for WotC to terminate the licence of a creator who incurs your disfavour by making content you dislike or who legally disputes your claim to certain content that you may have stolen from them. Reading these sections leaves a sour taste in my mouth.

Creators have been publishing under OGL 1.0a, which doesn’t have any of this kind of language, for 23 years. To my knowledge, WotC never faced any legal threats through 1.0a until you started on a foolish course to de-authorize it. What you’re seeking to achieve here is either not legally valid (attempting to restrict creators’ use of your non-copyrightable material or ease your own use of creators’ copyrightable material) or just plain bullying. Either way, it’s indicative of a fundamental change WotC intends for the hitherto positive relationship you’ve enjoyed with creators for the past two decades.

It’s through the effort of third-party creators that D&D has become the greatest roleplaying game. When you published the worst edition in the game’s history, it was a third-party publisher that made an alternate edition (Pathfinder) that allowed people (myself included) to remain engaged with the game. When you enticed former players back with the much-better-designed fifth edition of the game, it was third-party creators who produced supplements that kept the community invested in the game when official releases were slow or lacklustre. When pandemic restrictions prevented people from gathering to play in person, it was a third-party companies (like D&D Beyond) that largely helped save (and even grow) the hobby with virtual tabletop options.

You may own the trademarks and product identity of the D&D brand, but you’re just one of countless partners in its success. You need to cease these attempts to disenfranchise and alienate third-party creators from the game that we built together. This was formerly an arrangement predicated on good faith, and we’d like it to be that way again. It’s up to you to earn back our trust, and that isn’t going to happen as long as you continue to grasp for our tranche with these kinds of bogus legal tricks and traps.

CONCLUSION:

I feel that the licence is simply insufficient in its current form. It presents unacceptable risks to potential licensees and treats us as rivals to be firmly kept at arm’s length as opposed to partners in the brand’s success. Our fans, backers, players, patrons, and customers don’t represent your lost revenue, they represent people sticking with the hobby. They’re customers you were at risk of losing because you haven’t put out content they wanted to purchase, but thanks to us they might still be interested in your next release because they’re still playing the game.

I hope to provide more targeted feedback on these points in the rest of this survey.

After reading the proposed OGL 1.2, how has your perception of the future of Dungeons & Dragons changed compared to before reading OGL 1.2?

Much worse.

What would be needed to improve your perception of Dungeons & Dragons’ future?

To improve my perception of D&D’s future after reading this draft, the following needs to happen:

(1) Chris Cocks, Cynthia Williams, and Chris Cao need to step down from their roles. They have demonstrated an abject failure to be good stewards of the game and, after reading this revised version of the next OGL, I am not satisfied that they have given up on their unacceptable plans. A message needs to be sent that this plan is wrong and that WotC customers and partners will not tolerate such egregious breaches of trust.

(2) Wizards of the Coast needs to abandon this attempt to de-authorize 1.0a, publicly admit that it is not revocable, and waive your rights to ever attempt to de-authorize, cancel, or otherwise negate the licence as a whole. Too much of the TTRPG industry is based on 1.0a for any new OGL that tries to de-authorize 1.0a to be acceptable to me and to the community at large, no matter how sweet the new deal would be. It would signal that anything WotC offers it also feels entitled to take away, which is a mentality that I as a creator and a player simply can’t work with.

I had sincerely hoped that the new OGL would abandon this, and the fact that WotC is persisting on this course gives me no hope that things will improve.

(3) Any new OGL that WotC wishes to publish needs to be more strongly based on the original OGL, including specifying that the licence is royalty-free and not allowing WotC to licence back my content or steal it with no meaningful penalty. I don’t have a problem with WotC publishing the OneD&D SRD under a new OGL that improves on OGL 1.0a, but I won’t accept a licence that limits my rights as a creator in ways that 1.0a did not.

Do you have any comments about the Creative Commons Attribution 4.0 International and/or the content that will be released under Creative Commons?

I appreciate the gesture of releasing SRD content under Creative Commons, but I find the substance of the gesture wanting.

The content you have indicated you will release amounts of 58 pages out of the full 403 included in SRD 5.1. The selection does not include material needed to actually make content that is fully compatible with fifth edition D&D, including but not limited to: races, classes, spells, planes, and monsters. All someone could make using this content is an agnostic d20 adventure.

Also not included in the content you would release is the entirety of the 3rd edition/3.5 SRD, which remains the basis for a significant amount of content in the TTRPG community. Even companies that have no interest in being compatible with the current edition of D&D would face incredible disruption as they were forced to rewrite their rules from scratch.

If you want to release content under Creative Commons, I applaud your choice, but it needs to be the complete SRDs that are currently available under OGL 1.0a.

Or WotC can publicly admit that OGL 1.0a is not revocable and waive your rights to ever attempt to de-authorize, cancel, or otherwise negate the licence as a whole. This is the outcome that everyone wants.

Do you have any comments about the Notice of Deauthorization?

WotC’s attempt to de-authorize OGL 1.0a is an act of bad faith and is ethically and legally indefensible. The creators of 1.0a, as well as your own website, clearly stated that 1.0a was never intended to be revocable, and the licence declares itself to be perpetual (which negated revocability in the prevailing legal parlance at the time 1.0a was written). WotC can’t expect us to ever trust you to honour the terms of a licence again if you persist on this course. What you can expect are lawsuits.

If you want to win back the community’s trust, you will abandon this attempt to de-authorize 1.0a, publicly admit that it is not revocable, and waive your rights to ever de-authorize, cancel, or otherwise negate the licence as a whole. Too much of the TTRPG industry is based on 1.0a for any new OGL that tries to de-authorize 1.0a to be acceptable to me and to the community at large, no matter how sweet the new deal would be. It would signal that anything WotC offers it also feels entitled to take away, which is a mentality that I as a creator and a player simply can’t work with.

OGL 1.0a is forever. Until WotC concedes this, you will be at odds with the community.

Do you have any comments about the types of content covered and/or the content ownership rights outlined by the proposed OGL 1.2?

Content Covered: The content of SRD 5.1, along with any earlier SRD you released (including the SRD for 3rd edition/3.5), should remain under OGL 1.0a or be released in its entirety to Creative Commons. I reject any licence that attempts to take control of SRD 5.1 away from OGL 1.0a.

Content Ownership Rights: I reject your attempts to build in a backdoor licence-back provision that forces creators to sue just to get income from content of their own creation that WotC uses without permission, credit, or compensation under the de facto protections in section 3, supported by anti-litigative provisions such as sections 9(e) and 9(g). It’s nefarious and demonstrates bad faith on WotC’s part.

Do you have any comments about the “You Control Your Content”, “Warranties And Disclaimers”, or “Modification Or Termination” sections?

CONTENT CONTROL: This is infinitely better than OGL 1.1’s attempts to force creators to use obtrusive in-text citations (e.g. “The shadowy figure is a dragonborn [SRD, pg. 5].”). This section would be perfectly fine if it weren’t for the fact that section 7(a) allows you to modify section 5(a) with only 30 days’ notice, which presents an unacceptable risk to creators.

In my initial comments to this survey, I used the example of potentially being forced to reprint books, but even creators who exclusively publish digital content would be unacceptably exposed here. If WotC once again demanded in-text citations, it would require redoing the typesetting of an entire document in the final stages of production.

The fact of the matter is that any substantive changes to 5(a) will require a much longer grace period than this draft of the licence allows, if not simply a selection of standardized options that can’t be changed to ensure that creators are protected.

WARRANTIES AND DISCLAIMERS: There are a lot of common sense rules here that I can accept, but there’s also unacceptable legal overreach by WotC. Specifically, section 6(f) is completely unacceptable and needs to be completely scrapped. WotC is neither qualified, nor capable, nor entitled to act as the community’s morality police. There are hate speech laws that already prohibit people from publishing hateful material, and the D&D community has repeatedly demonstrated its rejection of hateful material.

If WotC is still concerned about its brand being damaged by association with problematic content, then you should use creator badges that are less evocative of your distinctive trademark. Attempting to control the artistic expression of independent creators is just going to lead to you becoming embroiled in legal disputes about the freedom of speech. It’s a bad idea for creators, and it’s a bad idea for WotC. Drop this entire clause and don’t try sneaking it in anywhere else.

MODIFICATION OR TERMINATION: Future-proofing agreeable methods of communication between WotC and creators is agreeable. Everything else about this section is not, for various reasons I’ve explained at considerable length in other responses.

To summarize: WotC is reserving unreasonable rights for themselves and demanding that creators waive too many critical rights that exist for their protection. If you steal my intellectual property and I sue you, under the terms of this draft you’d be able to (falsely) declare it your content and cancel my licence, and the best I could hope to get out of the lengthy legal battle would be some nominal monetary sums that WotC would probably consider a rounding error on your power bill. And I wouldn’t even be able to join a class action suit against you over it (section 9(e)).

Do you have any comments about the Virtual Tabletop Policy?

As I don’t create VTTs, I don’t feel qualified to speak to this section of the Virtual Tabletop Policy. However, my opinion as a user of VTTs is that this section of the draft OGL looks like it was written by someone who believes Pong represents advanced computer graphics and that some day the company call centre will stop having to dedicate a whole entire phone line to the dial-up that some peon comes in early to connect for everyone in the building.

Of course, I suspect that this is the impression that WotC wants to give off: “Here’s a quaint company known to deal primarily in print media, so of course they have no clue how technology actually works”. I’m sure this is part of a plan initiated in 2022 with WotC’s acquisition of D&D Beyond under the leadership of former Microsoft exec Cynthia Williams, who envisioned doing what Apple did and making a walled garden around all D&D content.

The problem is, of course, Apple built their walled garden over the course of 15 years, and WotC tried to do it in less than 15 months. And now, thanks to WotC’s ridiculous overreach, it’s looking like the content people want will all be on the outside of the wall, and this new VTT policy is only going to exacerbate that. D&D Beyond is supposedly down at least 40,000 subscribers so far as a result of this. Players are abandoning your ecosystem because you’ve made it inhospitable, and that’s just going to get worse the longer you persist on this course.

I’m sure there are any number of constructive suggestions that I could try to come up with, but I’d sooner direct your attention to the feedback provided by a VTT company that I respect: the Foundry. If you’ve already gone and deleted their responses, that’s fine; you can still find their remarks here.

Would you be comfortable releasing TTRPG content under the proposed OGL 1.2 as written?

No

Why do you say that?

Firstly, I feel that the licence is simply insufficient in its current form. It presents unacceptable risks to potential licensees and treats us as rivals to be firmly kept at arm’s length as opposed to partners in the brand’s success.

Moreover, the current draft demonstrates WotC is willing to act in bad faith. You claim that you’re listening to our concerns, but most of our key demands—that OGL 1.0a be left alone and a new licence (under which we accept WotC may wish to exclusively publish future SRDs) offer creators the same royalty-free, safe use of content in perpetuity without any provisions that would allow WotC to effect substantive unilateral changes—have either been disregarded or undermined. Deeply troublesome provisions have been nefariously concealed instead of altogether removed, and WotC has shown no indication of being willing to stand by their purported promises—past and present.

In other words, my discomfort about publishing TTRPG content under OGL 1.2 isn’t just about my issues with the current draft, but my issues with Wizards of the Coast. This isn’t the first time that WotC has betrayed the creators who are responsible for D&D’s success, and nobody wants to hitch themselves to a wagon that has tried to steal their horses once, let alone twice.

Until WotC demonstrates a willingness to act in good faith by making full restitution for this entire debacle, I’m simply not interested in working with you.

Compared to the OGL 1.0a, do you feel that you would be able to continue developing content the same way under the proposed OGL 1.2?

No

Why do you say that?

OGL 1.0a was not perfect, and I understand WotC’s feelings that it left you legally exposed in certain ways. But that does not mean that this is the way forward.

NFTs that infringe on your trademarks and protected content are already illegal, so there’s no need for the OGL to deal with this.

Garbage content like that being written by Ernest Gygax, Jr. are widely rejected by society and can’t damage WotC’s image so long as you don’t make yourself responsible for policing what is made using an open licence.

The nature of open game content specifically and game mechanics in general already allows WotC to legally make original work inspired by others without having to force licensees to give up on punishing you for stealing theirs.

Finally, the terms of the licence pale in comparison to the terms of OGL 1.0a. This version of OGL 1.2 isn’t royalty-free nor truly irrevocable, it allows termination over artistic interpretation with no method for appeal, and it deviously elicits an implicit agreement from creators that they waive many legal rights that are critical to our protection.

In short, it’s not acceptable.

Do you have any comments about Content Creator Badges?

This is the smartest idea that appears in this entire document. Offering creators a label to indicate compatibility with a core set of rules is in the exact spirit of the original OGL and supports a healthy ecosystem that benefits everyone.

My recommendation with these badges is to make them less similar to WotC’s registered trademarks so that you don’t feel that you have to police the content created using SRD 5.1, a course of action that is not in anybody’s interest—WotC’s or creators’.

What other feedback do you have for us (related to the Open Games License or otherwise)?

OGL 1.0a is not revocable, and WotC needs to desist in its efforts to de-authorize it. As long as any new OGL comes along with an attempt to de-authorize 1.0a, I will not accept it. The only D&D I’m interested in playing is an #OpenDnD.

WotC is at a critical crossroads right now. It’s going to take an enormous gesture to win back the community’s trust and goodwill. Failure to demonstrate true contrition for betraying your player base will mean losing it the same way you did in the late aughts when you released the GSL and fourth edition. You turned trusted partners like Paizo into rivals back then, and you’re doing the same thing now. If you don’t show commitment to your fans and customers now, before they become comfortable with other game systems, it will take WotC years to recover, and it’s possible you never will.

Get rid of the people responsible for setting this misguided agenda. Admit 1.0a is irrevocable and waive your rights to ever negate it. Stop playing games with your players and offer a sincere apology.

Be better.

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Feature Image: Wizards of the Coast

Taylor Reisdorf is the lead writer at DM’s Workshop. He has been playing D&D since third edition (including Pathfinder from 2009 to 2014). He lives on Treaty 1 territory in Canada where he runs inclusive TTRPG tables for players of all experience levels and identities.