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Wizards Slay the Dragon that Lays the Golden Egg

Hail, and well met adventurers! There’s rumors of dark dealings, and mysterious machinations from that group of Western mystics, Wizards of the Coast (WotC). If this pernicious plot is allowed to succeed, a wave of darkness will spread over this land of Open Source gaming, the vile legal fog sticking to and tainting everything it touches. Our quest today is to determine the truth of these words, and determine a defense for the world of open gaming, and indeed perhaps the entire free world! Beware, the following adventure will delve into the bleak magic of licensing, contract law, and litigation.

Ah, Dungeons and Dragons. The original creation of Gary Gygax, refined by countless others, this table-top role-playing game has brought entertainment and much more to millions of players for years. In 2000, WotC made a decision that opened the mechanics of that universe to everyone. The 3rd Edition of Dungeons and Dragons was released under the Open Gaming License, a very intentional port of Open Source licensing to table-top gaming — obviously inspired by the GNU Public License. Ryan Dancey was one of the drivers behind the new approach, and made this statement about it:

I think there’s a very, very strong business case that can be made for the idea of embracing the ideas at the heart of the Open Source movement and finding a place for them in gaming. […] One of my fundamental arguments is that by pursuing the Open Gaming concept, Wizards can establish a clear policy on what it will, and will not allow people to do with its copyrighted materials. Just that alone should spur a huge surge in independent content creation that will feed into the D&D network.

The Golden Era

3rd edition player's handbook

Open Source did for D&D much the same as what it’s done for software. Making the mechanics available to everyone, and setting forth clear rules about how even commercial products can use those rules, led to an explosion of popularity for D&D. Just an example, a little company called Paizo came along, and started publishing adventures that were compatible with “the world’s most popular fantasy roleplaying game.” These modules let adventurers take their Player’s Handbook, and play through a totally new adventure from professional writers. This expanded library of content made D&D a compelling system for gamers to use. There’s plenty more history we could cover, like the 3.5 update, and Paizo’s Pathfinder system, which was a friendly fork of D&D into a dedicated system.

So what exactly does the OGL say? First, it draws a distinction between Open Game Content, which is rules and mechanics of the game, and Product Identity. That is identified as proper names, product names, storylines, artwork, dialog, etc. The OGL “sticks” to any derivative works, with one of the terms being that any such works must include the OGL text in entirety. The license grants “a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.” The restriction is that derivatives must not use any Product Identity. No beholders, no githyanki, and no adventures in Eberron. This doesn’t mean you can’t have an adventure with your local gaming group in that setting, just that you can’t publish the adventure that is set there.

For the topic at hand today, there’s another important section of the OGL to consider: “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.” This is very similar to the GPL’s variation, “or any later version“. The purpose seems to be the same — if a loophole or weakness in the license is eventually discovered, it can be patched right away, and end users get the benefits of the changes.

A Dark Spell is Being Cast

All seems well in paradise, right? D&D is more popular than ever, there’s an endless stream of content to enjoy, and virtual table top (VTT) technology has really taken remote gaming to the next level. WotC is developing One D&D, an incremental update that is intended to be backwards compatible with 5e, much like the 3.5e update. Any fiddling with a beloved system is going to be controversial, but a real horror has emerged in the form of a leaked update to the Open Game License (pdf).

OGL version 1.1 has a lot in it, mostly worrying, but the linchpin is VIII.A “This agreement is […] an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.” I can only imagine the teams of lawyers at Hasbro (WotC’s parent company) agonizing over the 1.0a version of the OGL, trying to figure out a loophole to claw all of the D20 system out of an open source style license. And this is their solution: If only authorized versions of the license can be used, and WotC does the authorizing, then simply unauthorize the old version.

Make sure you understand what exactly that means. Every bit of content published under the OGL is now a trap. Any D&D derivative work falls under the new license. According to the examples in the 1.1 text, third-party books based on 5e are fair game for WotC to come after. Anything that is a derivative of D&D fall under the purview of this new license. There is a vast world of content that is getting muscled into this altered deal.

The Spreading Darkness

And here we’ve reached the important point. If Wizards push forward with this new license, it will likely doom Dungeons and Dragons. But if this approach stands up to the test of law, it could jeopardize all of Open Source. Could the Free Software Foundation revoke version 2 of the GPL? Could Microsoft revoke the license grant of code they’ve written for the Linux kernel? Could Oracle revoke the license grant of MySQL?

The industry understanding of Open Source is that no, that’s not how it works. Once code has been released under a FOSS (Free and Open Source Software) license, there are no take-backs. So long as the license was added by someone with the right to do so, it’s forever available to everyone under that license. But would a court see it that way? This is a question that needs to be addressed, and some licenses may need to be updated to make the answer explicit. But there are legal weeds to wade through, and details vary based on the exact text of a given license, and even the legal jurisdiction in question.

The rest of the updated OGL deals with the division between commercial and non-commercial use. Of particular note are the sections that specify that derivative works must not be used in a “harmful, discriminatory […], or harassing purposes”, and “You will not do anything that could harm Our reputation.” Oh boy. Let’s talk about morality clauses. It seems so straightforward, doesn’t it? I don’t want my code to be used for evil, so let’s put a clause in the license that prevents evil uses. What could go wrong?

Up first is the Free Software Foundation’s zeroeth freedom, “The freedom to run the program as you wish”. It’s one of the essentially things that make a program Free. The Open Source Initiative has a similar restriction, that the license itself may not discriminate against people or fields of endeavor, even if you find a person or field to be “evil”. There’s a legal argument to be made that most morality clauses are unenforceable, but even more important is the concern that evil will at some point be defined by the person you least want to be responsible for the definition. In this license, the combined effect is that WotC (and Hasbro) can mount a legal attack at any creator, claiming these morality and reputation clauses. A court might eventually rule in favor of the creator, but only after a long and expensive legal fight.

Light Breaking Through the Clouds

So does WotC’s legal loophole hold(leak) any water? Or is a license that is explicitly “perpetual” also “irrevocable” automatically? Can they de-authorize an old license? Is it actually true that “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”? While I might count as something of an expert regarding Open Source, I am not a lawyer. I did what you should do, if you have these same questions: I asked an Intellectual Property Attorney. Our very own Joseph Long happens to be such an attorney. So here’s the takeaway.

The attempt to de-authorize the OGL 1.0a “likely has no retroactive teeth”. Open Game Content that was covered by the OGL is still bound by the Grant and Consideration, which grants a perpetual license for use. The existence of “Consideration” means that the OGL would likely be interpreted as a contract by a court of law. But in either case, “perpetual” leaves little room for revocation. Also of note is the idea of promissory estoppel, a fancy term that just means that promises can be enforced by law, even without a formal contract, if another party reasonably relied on the promise. Then there’s also WotC’s published FAQ about the OGL 1.0a. Regarding changes to the license: “even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option.”

What about a new derivative work, published after the OGl 1.1 takes affect? If it only uses material released under the old license, “most signs seem to point to the previous license still binding on the respective (previous) open game content.” In other words, so long as you never agree to the new license, your standing doesn’t change. You still have the same license as granted by all of WotC’s previous published works. Dancey, the originator of the OGL, has agreed with this take:

Yeah, my public opinion is that Hasbro does not have the power to deauthorize a version of the OGL. If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license. I am on record in numerous places in email and blogs and interviews saying that the license could never be revoked.

But be careful. It’s far too easy to enter the updated license agreement. From the new license text: “Any non-commercial use of Licensed Content (defined below) is subject to this agreement; by using Licensed Content in this manner, You agree to the terms of this agreement.” As I am intentionally not going to enter into this license agreement, I will not be interacting with any D&D content. Careful reading of the updated license suggests that even rolling a character using the new 5.1e rules could constitute an acceptance of the new license. Update: the EFF has published a great post addressing this and other issues.

So, assuming this new license does get released as has been leaked: Can you still write an adventure for Pathfinder, which is based on D&D 3.5e, and charge 99 cents for the PDF, without filing paperwork with WotC? If you go really viral, and raise more than $750,000 in crowdfunding for your module, do you really need to pay 25% of the income over that threshold? My legal advice informs me that we can collectively tell WotC to go pound sand.

Darkness May Fall

However, if you’re big enough to catch their attention, and not big enough to mount a serious legal fight against the new license, then it might not matter. The legal costs make the situation untenable. And that means that WotC will have squandered every bit of their most valuable resource: trust. That’s what makes Open Source work. I owe Simon Phipps of the Open Source Initiative a tip-of-the-hat (35 minutes in) for his point that licenses don’t compile, and don’t have any real bearing until they’re brought before a judge, which is always prohibitively expensive. Open Source is really about the community, and that community is based on trust. WotC has spooked their community, and has lost trust through this leaked update.

If WotC does publish the 1.1 update of the OGL as it has been leaked, the only outcome I can imagine is the slow, painful death of the brand, as the community abandons it. The uproar has already been deafening. Imagine the outcry if WotC actually launches legal actions against publishers. And any new content that third-party creators were planning to produce just got more complicated. Want to do an actual-play podcast of a D&D game? Sorry, you’re not licensed to do so. Unfortunately that puts everyone that enjoys the game into a very prickly position.

And the follow-on ramifications for other realms of Open Source aren’t pleasant, either. A legal precedent won by Hasbro here could really shake the legal foundation of Open Source as a whole, as unlikely as that seems to be. But even the threat of legal action has a damping effect. So I’ll simply end by calling on Wizards of the Coast, to not squander the last 23 years. There are multiple elements of the 1.1 license I’m not excited about, but the unauthorization of the previous OGL is a community killer. We could never trust you again.

And, sadly, it seems that this may be the death of the Open Gaming License. Regardless of what happens next, the mere existence of this document is proof positive that WotC is no longer a trustworthy steward of Open Gaming, and the OGL is no longer a reliable tool for permissive licensing. It’s unclear whether an existing license, such as the array of Creative Commons licenses, will be sufficient to fill the void. It may be that Paizo or another large player will need to draft a new license with similar terms, and stronger protections against abuse. And then the arduous task of rebuilding the world of open table-top gaming — a world without any Wizards.