It’s been over a year since I’ve last posted here. It was a hell of a year.
They’re saying blogs are poised to make a comeback. It would be nice. While I greatly appreciate a well-made video essay, a badly made one is unbearable, and it takes way more time and resources to churn out one of those than just a written text, the latter of which is also way better for disseminating detailed information, like I am about to.
It’s also been a hell of a couple of weeks. I thought I would compile a post to clarify at least to myself what has been going on, because these things tend to be remembered very differently after a while, and digging through Facebook groups, Twitter, and various forums in a couple of years’ time would be a pain in the ass, especially since some of those forums have decided to disallow the posting of certain major outlets.
I am not going to engage in any legal speculation or commentary. I’m from Finland, where we have a civil law system. Wizards of the Coast is based in the United States, where they have three precedents in a trenchcoat and a council of tribal elders. There will be a lot of links, most of them to verified sources such as interviews and news articles. When rumour is included for the sake of completeness, it is marked as such.
Oh, this post is about the Open Gaming License. OGL 1.0a is a document of about 900 words that’s the single most significant page of text for the modern role-playing game industry. It was released along with the third edition of Dungeons & Dragons in 2000. Together with the D20 System License, it allowed companies other than Wizards of the Coast, then a subsidiary of Hasbro, to publish material compatible with D&D and advertise it as such.
Now, it has been recently argued by such eminences as Cory Doctorow and Devin Stone of LegalEagle that the Open Gaming License was unnecessary, and as game mechanics cannot be copyrighted, the companies could have been doing that anyway with far more liberty. While this may or may not be true, it does skip over a lot of context. None of this exists in a vacuum.
For one thing, Wizards of the Coast had recently bought the original publisher of Dungeons & Dragons, TSR Inc., who were famously litigious. They went after competitors, they sent cease & desist letters to online fan sites on GeoCities, they threatened legal action at the drop of a hat. It was joked that TSR stood for “They Sue Regularly” (actually “Tactical Studies Rules”, but that’s neither here nor there). The Open Gaming License was Wizards of the Coast’s way of promising they were not going to do that. See, while you could have possibly gone to court with TSR and won, that takes lawyers and lawyers are not cheap, and this is the tabletop role-playing game industry. WotC’s founder Peter Adkison is often quoted as saying “If you want to make a little money in the RPG industry, start out with a lot of money”. Going to court against the market leader was not a promising proposition for pretty much anyone.
Secondly, who the hell would’ve even thought of trying to make D&D supplements under fair use doctrine? The idea is outré. How would you advertise? Where would you have sold them? The PDF market didn’t exist in 2000 and it’s likely game stores would’ve looked askance at such a product.
No, the Open Gaming License was necessary. It allowed a publishing ecosystem to form, where these third-party publishers working off the base of D&D 3E’s D20 System created new material and borrowed from each others’ work. The threshold to create your own stuff and enter the market was lowered, especially once RPGNow opened and selling your game as PDF became a thing in 2001. Those early days of the OGL were a heady, booming era. Some of the companies founded on D20 that survived the bursting of the bubble are still players in the industry – Mongoose Publishing, Green Ronin Publishing, Paizo Publishing, Troll Lord Games, Goodman Games, Privateer Press, and more. It gave rise to hundreds, if not thousands, of RPG outfits, from actual companies with offices and staff to lone designers doing everything themselves. It was a flourishing era. In time, even some non-D&D games adopted the OGL. It was huge. Three editions of a Star Wars role-playing game were released under the OGL — the same ruleset that powers the Knights of the Old Republic video games. To date, there’s been a Call of Cthulhu D20, two different Lord of the Rings games, a Doctor Who game. Babylon 5. World of Warcraft. Even, I kid thee not, an EverQuest tabletop role-playing game based on the D20 System.
This could happen because of trust. The OGL 1.0a was supposed to be permanent. Eternal. Irrevocable. Wizards of the Coast has repeatedly pressed this point in the past, and it was and remains the stated intention of the idea’s father, Ryan Dancey. Even in 2008, when WotC rolled out a new edition of D&D and its sinister Game System License, which in turn led to the creation of the competitor Pathfinder RPG, they did not attempt anything so asinine as to try pulling the OGL. In cutting themselves off from the OGL ecosystem, they abandoned any hope of D&D 4E being successful even if the strength of their brand could’ve otherwise overcome the product’s own shortcomings.
D&D 5E returned to using the OGL, a new third-party ecosystem was born, and with a couple of lucky breaks called Critical Role and Stranger Things, it started making grown-up money.
Of course, we should remember that the dragon is a metaphor for greed.
On December 21st, 2022, the D&D Beyond blog posted an FAQ about the upcoming OGL 1.1, an update to the license. It included some worrisome language about royalty payments, but also the reassurance that “the OGL is not going away”. And then, on January 4th, 2023, someone leaked the OGL 1.1. It appears the YouTube channel Roll for Combat was the first to break the news, receiving the leaked document in the middle of a scheduled stream, which feels like a bit of a coincidence. The leak deemed real after a Gizmodo article by Linda Codega on January 5th. The leaked document was a whole lot of legalese interspersed with somewhat snide commentary. It was later posted online and I am happy to provide it here.
The most objectionable bits about it were language about claiming royalties for revenue — not profit, revenue — above $750,000; demanding reporting of income over $50,000; claiming a sublicense on all of the licensee’s content; and seeking to deauthorize OGL 1.0a. None of this was deemed acceptable by the gaming public, let alone the people whose entire livelihoods are tied to the OGL. It is a direct attack against third-party publishers.
And by the way, whoever leaked this is a hero. Also, I know I’ve dunked on Knights of the Dinner Table in the past, but this 2009 strip was downright prescient.
Wizards of the Coast, of course, reacted promptly and quickly to the PR disaster of the cen— just kidding, they kept silent for almost a week. Then, on January 10th, the D&D Beyond Twitter account broke the silence: “We know you have questions about the OGL and we will be sharing more soon. Thank you for your patience.”
At this point, I was almost as angry at them for being this bad at crisis communications as I was for them threatening my friends’ livelihoods and my hobby. Note that I do not play D&D 5E. I already swore off Wizards of the Coast’s products in 2008 with the GSL travesty. While I cannot claim to have maintained a perfect boycott for 15 years, it’s been pretty solid. And still this threatens to directly affect me.
Of course, it’s not entirely settled whether OGL 1.0a can be revoked. Myriad people with a variety of law degrees ranging from alleged to actual, hailing from a variety of jurisdictions, have weighed in on the matter on YouTube, Facebook, Twitter, and various forums. From reading their learned takes on the matter I have determined that nobody actually knows until the gavel comes down. Nobody is particularly keen on suing WotC because, again, lawyers are expensive.
During most of this time, as the gaming internet was aflame, the silence from not only WotC but also some major players in the industry was deafening. Among the first to make big announcements was Kobold Press, who on the 10th announced Project Black Flag, an open system of their own. Kobold Press has been a major third-party publisher of the 5E era, and for them to break ranks was a big deal. Then, Wolfgang Baur learned the lesson about WotC 15 years ago.
On January 12th, the Twitter account DnD_Shorts posted an alleged leak from a D&D Beyond employee, exhorting people to cancel their subscriptions and delete their accounts because money is the only thing that the executives understand (for some fairly basic and limited values of “understand”, I suppose). True or not, it checks out — deciding to boycott the next D&D book is visible in months, but website subscriptions you can see falling in real time. And fall they did. Allegedly, they even tried hiding the unsubscribe button. No actual numbers have been released, of course, but the hunch is that they’re high.
That date, D&D Beyond also cancelled a scheduled Twitch stream. There have been claims it was supposed to be some kind of announcement but to my eye it looks like a regularly scheduled weekly stream, and cancelling it rather than putting unprepared people in the line of fire was the wisest course of action. Apart from the part where over a week after the leak they still did not have their act together.
Also on the 12th, Paizo Publishing, the second-largest OGL publisher in the market (okay, actually I think they are not, but that is because the French board game giant Asmodee releases the Midnight role-playing game under the OGL), broke their silence in a big way, announcing the Open RPG Creative License, or ORC. Paizo and a group of other major OGL publishers — at the time of writing I think it’s almost everyone who’s anyone except Darrington Press (Critical Role), MCDM (Matt Colville), Fria Ligan (Lord of the Rings), Asmodee (Midnight), and EDGE Studios (Adventures in Rokugan) — banded together to hammer out a new open license for their games, to be given into the stewardship of first their law firm and ultimately some kind of open culture foundation. Nobody seems keen on signing on to WotC’s racket.
On the 13th, the date that the leaked OGL 1.1 said was the cutoff, WotC finally made a more substantial announcement. It was unsigned and has been characterized as passive aggressive gaslighting. The text’s tone is deeply unprofessional, and if anything, it fanned the flames against WotC even further.
On January 17th, the Twitter account @DungeonScribe posted an alleged leak that D&D Beyond membership would go up to $30/month for players, AI DMs would be implemented, and base subscriber tiers would have stripped-down gameplay. These were widely reported on, but though verification was promised, none has been forthcoming as of this writing. D&D Beyond’s Twitter account issued a clear denial on the 19th. Personally, I am inclined to think the report false, but it is a part of the larger narrative so I include it here. D&D Twitter’s signal-to-noise ratio has been exceptionally poor even by Twitter standards, and at this point I would wait for Gizmodo’s Linda Codega, who has been doing exceptional work, to verify any further leaks.
By the time that on January 18th, WotC managed to piece together something resembling a human response, they had wasted a full two weeks. It is not public knowledge how they spent that time, but I expect a fair bit of fruitless witch hunting may have gone on, because it is the stupidest thing a corporation can focus on in a situation like this. Godspeed, good witch.
On the 19th, they turned out a draft of OGL 1.2 for feedback. The feedback survey is here. Bits of the D&D System Reference Document 5.1 are also to be placed under a Creative Commons license, which is nice but also meaningless since it is mostly just basic mechanics and procedures which were not copyrightable in the first place, and the experience table. This version of the OGL walks back on the royalty demands of the previous one and removes the sublicense clause. OGL 1.2 is also unacceptable in its attempt to revoke OGL 1.0a. This is explained as a defense against “harmful, discriminatory, or illegal content”. Indeed, the draft includes a morality clause, which is also unacceptable.
No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.OGL1.2 draft, section 6 (f)
Sure, it feels nice and high-minded to ban bad things. Make them go away, not exist. However, someone has to make the call and those are not well-defined criteria. Even “illegal” is fuzzy. Illegal where? Russia? Saudi Arabia? China, maybe, where WotC prints its books? Or the United States, where the senile council of elders is in the process of enacting a rollback of human rights and Florida Man just banned the teaching of Black history at schools? J.K. Rowling would argue that trans rights are a hateful concept. Hell, I readily admit that if the Lamentations of the Flame Princess adventure Towers Two, which I did Pathfinder design on, is not obscene then I do not know what the hell is. And then there is that whole thing about “conduct”. As written, it would allow the license to be pulled for jaywalking. But that’s a spurious example. How about someone getting their license pulled as a side effect of being cancelled on Twitter. “Obscene conduct”? Without even going into all the sinister history that phrase evokes, I don’t want the state in my bedroom and I sure as hell don’t want WotC in there. This section of the license looks like Pat Pulling won.
And let’s face it, this is Wizards of the Coast. If the last couple of weeks have shown us anything, it’s that they’re not your friend. This merely reiterates a lesson many of us learned in 2008. Examples of their shining moral leadership include the mistreatment of freelancer Orion D. Black, pulling LGBT content off DM’s Guild, the entire mess with Graeme Barber and the grippli, and actually releasing Tomb of Annihilation. Moreover, they’ve recently been embroiled in two different lawsuits, against Gale Force Nine and the author duo Margaret Weis and Tracy Hickman, where the crux of the matter was a malicious literal interpretation of contract terms against its spirit. And hey, we’ve also seen that they will cave to public pressure as well. These are not people I would hand the right to pull the plug on my work.
The argument has been presented that it is a shield against nuTSR’s Nazi bullshit, which in fact has nothing to do with OGL materials and is a pure copyright dispute. Even the outfit’s blatant racism and gross transphobia is incidental to the fact they’re claiming to own WotC’s intellectual property on the rough legal basis of “I licked it so it’s mine”.
There things now stand, and we wait. WotC’s survey has two weeks on the clock, but really, it is of academic interest. They have broken the trust of third-party publishers, burned away the goodwill of their audience and in general made a right mess of it. At this point, I think signing on to ORC is essentially the only way for them to salvage the situation. And ORC is the actually interesting thing here. As of last report, over 1,500 publishers have signed on. According to an interview with Erik Mona on Roll for Combat, an initial draft can be expected maybe around February.
If you’ve read this far, you deserve a reward. Here’s a cat on some game books.