“The secret we should never let the gamemasters know is that they don’t need any rules.”
-Gary Gygax
Well, this January, the Dungeons & Dragons role-playing game finally achieved national attention as a mainstream pastime, although not for a good reason.
Wizards of the Coast (also known as Wizards, WOTC or WotC, pronounced ‘wotsey’) bought out TSR, the company that created Dungeons & Dragons, in 1997. Wizards was in turn bought out by the mega-corporate game company Hasbro in 1999. Shortly thereafter they refurbished the game brand with the 3rd Edition of D&D, creating much needed streamlines and changes and bringing the game’s popularity to a new level. The game has been in 5th Edition since 2012 and is more popular with more mainstream exposure than ever, largely thanks to Critical Role, other online game broadcasts, and pop culture allusions like the Netflix series Stranger Things.
Part of this media share, the reason that “D&D” refers to the roleplaying hobby the way “Coke” refers to all carbonated sodas, is because of the Open Game License, an ingenious feature that the (then) owners of Wizards created for use with D&D 3rd Edition. One of those people, Ryan Dancey, referred to it as a “copyleft” document. The OGL asserts the existence of Wizards’ copyright as it pertains to “Product Identity”, trade dress, features unique to the company’s product such as owlbears and mind flayers in D&D. This is because it has been established that certain things like medieval fantasy or role-playing games are not copyrightable in themselves, but the features of Product Identity are. At the time, Dancey said, “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.” Thus it did. By allowing the use of its game mechanics (the ‘Open Game Content’) to be used by third parties, WotC greatly expanded the industry but in such a way that it promoted D&D’s brand, since new publishers were creating material that referred to their core D&D product.
Over the last year or so, WotC has been promoting “One D&D”, so called because rather than being a new or 6th Edition, it is supposed to be making all editions compatible with each other. This project was also supposed to integrate new play elements that have recently become popular, such as virtual tabletop (VTT) play.
Now, given that WotC has rights to the OGL, there was always a question of whether or not they couldn’t just take it and invalidate it if it interfered with what they wanted to do as a company. The company response from the website FAQ had long stated that the OGL “already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s 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”. Notably, this part of the company’s FAQ was recently removed about the time Wizards started pursuing One D&D.
In Wizards’ press releases between fall 2022 and January 2023, they had stated that “The Dungeons & Dragons Open Gaming License Isn’t Going Anywhere” even though they did specify that third-party creators would need to report income above $50,000, and specifying that certain media like NFTs are not and never were allowed under the OGL. But that was from a Gizmodo article in December before Christmas. On January 5, Linda Codega, the author of that Gizmodo article, released details of an “OGL 1.1” which was supposedly obtained through a non-WotC developer. Most notably, in addition to the income details, the text states that the agreement is “an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.” And while a third party owned any product it would create with this license, it said “You agree to give Us a nonexclusive, perpetual, irrevocable, sub-licensable, royalty-free license to use that content for any purpose.”
Supposedly this thing was a draft (which was the defense Wizards eventually used to respond to the mess) but in their investigations, Codega had also interviewed people in Kickstarter who confirmed they had already negotiated terms of the document as it stood; specifically OGL 1.1 dictated that a company which grossed more than $750,000 from 3rd-party product had to pay 25 percent of its gross over that figure to WotC. The Kickstarter person told Codega they had made an agreement to make that figure 20 percent for a project that was promoted through Kickstarter, which indirectly confirms that Wizards was using the “draft” as the basis for negotiations. Notably, while all reports are that the One D&D is still in playtest stage and not planned to release until 2024, OGL 1.1 section VII.A said it was to take effect January 13, 2023.
It was perhaps telling that Wizards not only didn’t understand why this got a negative reaction in the larger gaming community but that they did not respond to the negative reaction immediately. After January 4, several companies that made their living off OGL product announced they were developing new game systems independent of the OGL. Wizards were supposed to do their official press announcement of the new setup January 12, and then they just… didn’t. But the same day, WotC’s main fantasy competitor, Paizo, got together with some other companies and decided it was going to make a coalition to sponsor an Open RPG Creative license, nickname “ORC”. The difference is that the intent is to make sure that the license will be owned and managed by an independent party that does not own a game company.
On January 19 – two weeks after the Gizmodo article – WotC finally released an post in the D&D Beyond website announcing the OGL “1.2”, an action which confirmed two things: the company is responding to demand to kill OGL 1.1, but it still wanted to kill 1.0. As part of the process, they asked fans to take a survey on their site, and and according to that site, “So far, survey responses have made it clear that this draft of OGL 1.2 hasn’t hit the mark for our community”. Most of the feedback I got is that the main response to the survey is: “Killing OGL 1.0 is a mistake and you shouldn’t go through with it and I’m not buying your product until you change course.” While 1.2 gets rid of a lot of the stuff that offended the community, like paying royalties to the company, it still specifically deauthorized 1.0, and says stuff like “We and you each waive any right to a jury trial of any dispute”, as though that were a concession on their part, especially since it says before that “This license and all matters relating to its interpretation and enforcement will be governed by the laws of the State of Washington, and any disputes arising out of or relating to this license will be resolved solely and exclusively through individual litigation in the state or federal courts located in the county in which Wizards (or any successor) has its headquarters” – in other words, the company has legal home-field advantage, and class action suits are not allowed in regard to the document.
Well, just today, January 27, the company outright caved. Their previous announcement had stated that open game material would be under a Creative Commons license even as they retained rights to the SRD (System Reference Document, whichever version of core D&D happens to be the current edition at the time). Today they announced not only that they are abandoning attempts to change the OGL from 1.0, they are moving the SRD itself to Creative Commons.
Again, this little issue with what used to be considered a niche of entertainment has gotten a lot of national press attention. Because it actually touches on a lot of serious issues.
WotC as owners of the SRD got to determine how that document is used at any time. We already know this.
But to paraphrase Dr. Ian Malcolm, they were so busy determining whether they could that they never considered whether they should.
It’s like with public affairs and the concept of positive and negative rights. “Positive” rights assume that a liberal government is going to provide them and negative rights assume that human rights are inherent in nature (or given by God) and the purpose of government is only to protect them. For instance, in America, freedom of speech means the government cannot interfere in your exercise of speech or practice of religion. It does not mean that government has to provide you a media platform. Liberals use terms like “a human right” for this and that, eliding the point that the Founders didn’t think that’s how rights worked. We nevertheless have government do certain things because we as a republic have agreed to put money into them, and they improve our overall standard of living. Nobody thinks there is a “human right” to an interstate highway system, but government funds it (sorta) because we can see the benefits. The same argument would apply to national health care. I can say this without being a socialist who thinks everything is a “right”.
Likewise if I am a capitalist who thinks that the right to intellectual property starts and ends with its owner, that doesn’t mean that they HAVE to maintain the strictest control of it. The approach that WotC had taken with the OGL when it first came out was not only good PR, it promoted the hobby in the long run by expanding it beyond the resources of one company.
Basically, Open Gaming License 1.1 flipped the benefit of OGL 1.0 where 1.0 allowed you as third-party creators to have a royalty-free use of the material as long as you acknowledged the brand ownership, and OGL 1.1 means Wizards has royalty-free rights to YOUR material if you want to use the brand. Which, given the size and power relationships between the individual and the corporation, makes one deal a lot better than the other. Depending on perspective.
Simply put, there was NO reason for a smaller publisher to take WotC’s OGL 1.1 if Wizards had all rights to their product and the corporation can make use of their creativity at no charge.
Why was the corporation so hellbent on killing the old Open Gaming License even with the pushback? They’ve offered a few reasons, some of which are more plausible than others but none of which are really convincing.
For one, both the presented OGL 1.1 and the prospective 1.2 version dictate a morality clause. It currently reads, “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.” In his January 19 post on D&D Beyond, WotC executive Kyle Brink said: “One key reason why we have to deauthorize [OGL 1.0.a]: We can’t use the protective options in 1.2 if someone can just choose to publish harmful, discriminatory, or illegal content under 1.0a.” The phrasing indicates that “harmful or discriminatory” refers to politically incorrect, sexist or other such content, which is basically the sort of woo-woo wokeism that alienates a lot of older and right-wing fans from Wizards. Here’s the thing, with one conspicuous exception, I don’t see any game company who sees regressive politics as a selling point. WotC’s main competitor in the hobby, Paizo, is probably more politically correct than they are. The broader concern is not a company’s rational desire to not be associated with demeaning material, but their potential to veto any expression they don’t like for any reason at all. It’s that much more obvious this is a control play when the license not only says “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” but again, refers to both game content AND “conduct.”
Because VTTs and similar media were not really a thing around the time of 3rd Edition, OGL 1.2 contained a specific page on the subject. It says that just regular old video conferencing to play games is okay. It states (for instance) that “features that don’t replicate your dining room table storytelling”, such as a video animation of a Magic Missle spell, are not allowed.
The “harmful” content premise can be dealt with via other legal means, or, in the case of fake TSR, refers to a publisher that has much less legal right to old TSR materials than Wizards does, and is small enough to where their infamy will not reflect on the larger corporation. The focus on newer forms of media is more relevant and more pertinent.
One big clue should have been Hasbro’s investor presentation conference on December 8, where Wizards’ new CEO stated that the company is “under-monetized.” (The press reports that Hasbro revenues surpassed 1 billion dollars for the first time in 2021, with $952 million of that being Wizards’ products including D&D and Magic: The Gathering, with tabletop games being 74 percent of the figure. Wizards is under-monetized the way Disney is under-monetized.)
Specifically, Cynthia Williams noted that while Dungeon Masters are only about 20 percent of the player base, they make up most of the spending, since unlike other players they need all the books. The Bell of Lost Souls article indicates the company was aiming to increase the level of gamer spending to create a “recurrent spending environment” among players who are not also gamemasters. How? Digital D&D. After all, that’s where the money is. That just gets into a broader issue in the culture where things are becoming more “virtual.” Like, you don’t pick up a box game and invite your friends over to play it. You download the game off a service, and if it has multiplayer option, you invite your friends to play it on a network. But that means a lot of the software is in the cloud or subject to company control, and they can change the end-user agreement at any time.
Basically, WotC tried to take things in a new direction in order to gain greater dominance of the market, and they can’t do that under the terms of the original Open Game License, so they tried to get rid of it.
We know this because they already have. In 2008, WotC came up with D&D 4th Edition, which used a more restrictive game license called the Game System License (GSL) that is not compatible with OGL. Part of this was an attempt to cork the genie back into the bottle and get more control over third-party product. Anyone who signed on to use the GSL for 4E could no longer produce product under the 3rd Edition OGL; however by its own wording the OGL remained in effect for anyone who wished to keep making 3rd Edition material. Which is how Paizo developed the first Pathfinder RPG, being basically a revision of D&D 3.5 Edition with the serial numbers filed off. This succeeded largely because Wizards’ D&D 4th could be expressed in the mathematical formula Suck/Ass. Well, actually, it wasn’t that bad as a fantasy-theme miniatures combat game, it just sucked as a roleplaying game, which believe it or not is not the same thing. Story elements were eclipsed by the tactical element and the emphasis on your character’s role within a team; like, your Rogue wasn’t just a rogue, he was a “Striker”, which brings to mind association football more than fantasy adventure.
As WotC continued to spring bigger leaks than the Titanic, it was revealed that One D&D is supposed to be emphasizing the digital sphere. “Homebrew” virtual content was at first not allowed, but supposedly they went back on that with 1.2. The base game with maximum options was supposed to be 30 dollars a month, including monthly “drops” and other microtransactions. “This would increase the amount of money that is coming from every single table by a degree of 10. What that means is, if they lose some of their player base, people who aren’t willing to shell out cash for D&D Beyond subscriptions, well it doesn’t really matter. Because they have to lose ten people for every one person who pays. Let me put that another way: They could potentially lose 90 percent of the player base of Dungeons & Dragons – and they would be UP money.”
One of the forums I participate in heard about this and one of the guys said, “They’re expecting 30 dollars a month for a crappy MMORPG?” Heck, World of Warcraft is a crappy MMORPG, and that’s less than $15 a month!
Seriously, there are games like WoW or Path Of Exile that offer a fantasy gaming experience for either cheap or free-to-play with add-ons, and Wizards would have to come up with something seriously over and beyond the video standard that’s already been established if they want to justify thirty dollars a month. Specifically, it would have to be a role-playing game experience in the video medium, as opposed to a video game with RPG elements. I mean, again, Wizards already tried making a tabletop RPG that played like a MMORPG, that was 4th Edition.
Which is what gets to the real problem. If this new online project was so knock-your-socks-off that it would justify $30 per month, I think a lot of people would have jumped to the new paradigm and (given the profit margin) it wouldn’t matter so much if the tabletop community took a hike or got left behind. The question is whether the current company could pull that off. Wizards’ biggest projects in the last year for D&D were 5th Edition versions of beloved old lines like Dragonlance and Spelljammer, and those were… not well received. Not to mention, a great example of why Wizards is in no position to judge anyone else for discriminatory content. So the new license seemed less like an attempt to copyright something new and unique to the company and more an attempt to smother competition in an area where other companies have already proven superior.
John Nephew, publisher of Atlas Games, made a pretty good point. Posting on Mastodon and Twitter, he said, “One of the great values of OGL 1.0a is that it sidesteps the orphan works problem of copyright law. You know how we’ve lost so many works of the early 20th century because no one would take a chance on publishing or invest in preserving, due to ambiguous legal status? Open Game Content can be used and re-used and derived-from even if you can’t reach the copyright holder or even determine who it now is if, for example, someone dies.” And in response to another commenter, he said, “The whole essence of RPGs is collaboration and shared creation, right? Our entire hobby is an offense against the foundations of modern corporate-written copyright law. “
Author Cory Doctorow recently had a counter to this point, saying “The OGL predates the Creative Commons licenses, but it neatly illustrates the problem with letting corporate lawyers – rather than public-interest nonprofits – unleash “open” licenses on an unsuspecting, legally unsophisticated audience. … the OGL is a grossly defective instrument that is significantly worse than useless. …The OGL is a license that only grants you permission to use the things that WOTC can’t copyright – “the game mechanic [including] the methods, procedures, processes and routines.” In other words, the OGL gives you permission to use things you don’t need permission to use. …it’s not just that the OGL fails to give you rights – it actually takes away rights you already have to D&D. That’s because – as Walsh points out – fair use and the other copyright limitations and exceptions give you rights to use D&D content, but the OGL is a contract whereby you surrender those rights, promising only to use D&D stuff according to WOTC’s explicit wishes.”
Now others would argue (I’m sure Ryan Dancey would argue) that the document simply clarifies what rights you have to Wizards’ product without having to go to court over what constitutes “copyright”, but that just gets into why the OGL had utility for as long as it did and why it has suddenly turned out to be unreliable. As long as the Open Gaming License (or its equivalent) was under the control of the company that owned the brand it applied to, there was no reason they couldn’t just reset it to whatever they wanted to whenever they wanted. Nobody cared because (as Doctorow states) the OGL was before the Creative Commons concept, and it was certainly progressive for the time. Dancey seemed to think that the wording was sufficiently clear that the company couldn’t “rugpull” the way Doctorow describes, but Wizards was willing to gamble that it’s not. And part of that is for the reason Doctorow describes: Simply agreeing to use the (original) OGL takes away your rights to what would otherwise be fair-use content.
The irony is that nobody really cared up until a few weeks ago and they would not have had Wizards of the Coast, by its own actions, revealed just why the Open Game License is (and in retrospect, always was) a liability to third-party game publishers. And that goes to the deeper irony- no one needed to care. Because there was an arrangement, perhaps inadvertent: Wizards would let third parties publish D&D related stuff, which promoted D&D to the exclusion of everything else in the market. And in exchange for Wizards letting those companies use their brand for “free”, those companies de-emphasized everything else they could have been doing with other game systems. (It also meant that Wizards didn’t need to spend a lot of money on legal cases that weren’t guaranteed to go their way.)
So when Wizards tried to seize control of that product on the grounds that it (or its core material) belongs to them, they were blanking out the fact that were it not for the Open Game License, that product would not have even been created.
This is my take.
Any change to a new edition of a game system is always going to get some push back with some ‘grognards’ preferring the old version. There are right ways and wrong ways to do it. In at least one case, I have seen an owner state, hey, we’re going to make a new edition, I have these ideas on how it’s going to work. The owner would post on the company’s website or some other community resource and go over the ideas and subject them to public debate. It was made clear that the owner had final say, but they wanted to make sure that people knew what was going on, and fans had some input on the process. Wizards did not do it that way. It is pretty clear from the way things leaked and WotC’s awkward, staged response that their proposed changes were NOT a draft. The removal of OGL 1.0 was to be presented as a coup, or in other French language, a fait accompli, which the community would just have to accept because they couldn’t do anything about it.
The other big mistake of Wizards of the Coast – which, like a lot of this story, could have been avoided if the bean counters in charge knew anything about the culture of their customers – is that they decided to slide a document change on the community of gamers that inspired phrases like “rules lawyer” and “min-maxer”.
The corporation’s position was, we have rights to all your material if you’re going to use our brand. The community called the bluff and said, we don’t HAVE to use your brand. So Wizards backtracked and their best chance for killing OGL 1.0 was that the legal language of new OGL does not retroactively invalidate anything done previously, you just can’t do any new material with the new SRD without signing on to the new OGL. But that basically put them back in the same position they were in with D&D 4th Edition, and we all know how that went.
The fact that the community always had the option to quit using WotC official material meant that the corporation was going to be put in that position anyway. But the difference between openly starting with that position and doing it the way WotC did is that the way they did it alienated a lot of people, not just those who were suspicious of the company in the first place but those who were neutral or otherwise supportive. There was no reason to accept the company’s terms for an OGL 1.1 because they were so one-sided. There was no reason to accept OGL 1.2, 2.0 or whatever it would be because now no one can trust that they won’t go back on it. And this has attracted the attention of Forbes, the Washington Post and a whole bunch of other serious outlets outside gaming, and it’s not a good look. (Keep in mind, Hasbro also owns Monopoly and other properties from Parker Brothers, Milton Bradley, Avalon Hill and a bunch of other old companies that they bought out.) Hasbro is in the same position that old TSR was in: Have a small hobby over which you have firm control, or a larger hobby with less control. TSR chose the first option, and look what happened to them.
But that raises what might be an obvious question: Why did Wizards craft an open-source document for their properties if they knew it might be a liability to their future ambitions?
When WotC first took over TSR, Ryan Dancey and the other people involved came up with the OGL because they were thinking long-term. It was done precisely so that the D&D game would not be dependent on the existence or non-existence of TSR or whichever entity had ownership, and it wouldn’t depend on the profits going up Gary Gygax’ nose, or into Lorraine Williams’ hidden accounts, or anywhere other than keeping the company solvent.
(I mean there’s at least one ‘orphan’ non-D20 system I think would fit this scenario, but for diplomacy’s sake, I won’t elaborate.)
Now, WotC is a much bigger company than TSR now, and it’s subsidiary to an even bigger corporation, but the last year has shown us that billionaires can blow away truly astounding levels of profit for the sake of pique.
If so much of what constitutes “D&D” and role-playing cannot be copyrighted, Wizards’ creation of the OGL was their attempt to make sure they had some control of the brand. But that means they own the game license and always have the potential to change it. The only solution is what Paizo and the other “ORC” participants are doing, which is to create a license that isn’t owned by any one company, because Wizards could keep doing this as long as the license to their product is owned by the company that has the product. And if property rights are to mean anything, that’s the bottom line.
But if the gaming community cannot force Wizards to give completely free rights to their intellectual property, by the same token, Wizards cannot force the community to accept the terms for that property. They can always create product using something else.
The community seems to have learned that lesson almost too late. Whereas Wizards seems to have learned it perhaps too late.
If nothing else, I think gamers are going to be looking at their EULAs a lot more carefully now.