Thoughts on D&D and the OGL
A lot of (virtual) ink has been spilled discussing WotC's new Open Gaming License, v1.1. Usually I have my own thoughts on that type of thing but don't bother sharing them on my extremely neglected blog here, or anywhere else for that matter, but I decided to put my own pen to paper, as it were, and share my opinions.
First, many articles, and D&D itself, have referred to the “leak” as a draft. I'm not personally “in the know”, but it seems that individuals from medium-to-large creators have stated that they were sent a version of this license along with a contract asking them to sign it and abide by the new terms within 7 days. That's not a draft. However, the copy provided by Gizmodo/io9 must be a draft. There would be no “[link]“, “[TBD]“, “[drop in picture]“, “[EMAIL]” or any other bracketed text in the copy. Also, there are incorrect references (to section “VIII” when it should be “VII” or “IX”, for the non-commercial and commercial versions, respectively). Should have been through a copy editor at least before it made it out to the public if it was a final version. I may call it a draft here, because the copy I have
There is good in 1.1, and quite a bit of it, but there's bad also. Yes, some people are up in arms about both, but I'll discuss both these points.
- Legalese that should have been there before
- merger and integration clause
- limitation on liability
- severability clause
- governing law clause
- failure to exercise a right is not a waiver
- termination clause
- forum selection
- class-action waiver
- Explicitly proscribe sale of NFTs
- Explicitly proscribe use “of the content or works...for any harmful, discriminatory, illegal, obscene, or harassing purposes.”
- Commercial license only allows printed media or static electronic files
- How I read this:
- One cannot create (for use with a commercial product) an Excel spreadsheet or executable (for PC, Mac, Android, iOS, etc.) to help manage my new spells, weapons, etc., because it's not a static file.
- No commercial app to manage a character sheet, locate spells, roll virtual dice and total according to SRD rules. This bans (explicitly) sale of VTTs. You can make them and give them away, but few developers in their right mind would put in the required work gratis. WotC can sell theirs, but basically shuts out all others.
- No sale of “music, songs, dances, and [or] pantomimes”. Granted, anything people might create here would likely be fine under the fan content policy, and is unlikely to be sold.
- Unclear how 3D prints would fit into this. Several companies sell STL files, which are static, and 3D-printed is technically “printed”, but the OGL implies printed words, rather than printed figures or terrain.
- How I read this:
- “You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.”
I take issue with the limitation to static electronic files. Hero Lab and Foundry are commercial products that do the “math” for you, and therefore do not produce static files. I used Hero Lab once upon a time and am seriously considering purchasing Foundry. Under OGL 1.1, these companies are out of business (with regard to D&D and SRD-based games—they work for other systems, but as these make up the bulk of their customers, they wouldn't likely be long for this world.
Foundry is also a VTT. Roll20 and Fantasy Grounds are also VTTs, which do not necessarily require paying money, but it helps (you and them). Their business models fall apart without the ability to sell their VTTs. Wizards is theoretically in the development stages of designing their own, and if theirs turns out to be better, maybe the community will use it. But saying that no one can sell a competitive product in that sector seems awfully restricting.
I would like to see WotC modify the commercial license to not restrict the content to specifically static electronic files and to remove the VTT clause.
The other bad thing that's explicitly in the draft is that last clause. “You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.” Anything the community creates under the OGL can be appropriated by WotC for their own commercial gain without returning the favor. Someone creates a character, class, or nifty magic weapon that goes viral. Wizards adds it/them to their next supplement, without paying the original creator. They can do that, because you signed the use of any and all of your stuff away to them.
WotC has made some odd moves since this came out, muddying the waters a lot. They released an OGL 1.2, clearly marked as a draft this time, with some changes, but not everything the community wanted.
With regard to the royalty payments, which I see as not that terrible, the implication came out that the royalty payments Wizards was asking for are on gross revenue, not net. Now, if your gross revenue is above \$750 000, the royalty payments aren't likely to be onerous. The problem came when WotC implied that they could change this figure to anything they want at any time. So, sign the license, figure drops to \$0. Now any gross revenue will be subject to the royalty payment, and that 20%–25% absorbs all of a content creator's profit, limiting their ability to put food on their table. We have to rely on their good will to not lower that figure. If it were clear that such royalty payments were on the net, and the dollar amount was less subject to the whims of our benefactor, I wouldn't be opposed to the top-tier dollar amount (where royalty payments begin) being lowered somewhat. The OGL 1.2, however, removed all discussion about royalties (for now).
With regard to the “harmful, discriminatory, illegal, obscene, or harassing purposes”, I have no problem with this in general, except what constitutes such content is solely at WotC's discretion. While I agree with where they (Wizards) stand today, if it becomes illegal to sell content that implies homosexuality exists or an ultraconservative CEO takes over Hasbro and makes such a decree, all the queer players who have created content to go with the game get their licenses revoked. When it comes to Nazis, I don't mind WotC telling them to pound sand, but there might not be quite such bad press among the broader community if the types of content were made more explicit. Secondly, OGL 1.2 says that if the creator engages in such conduct, the license could be revoked. So if one were to create a popular module, for example, that violated none of the standards, but had a criminal record, Wizards could say, “Nope!” and the creator would have no recourse. Also, if creators had a way to contest rulings under this clause, that'd be nice.
Finally, with regard to VTTs, the OGL 1.2 draft is more specific about what is and isn't allowed, but it's still anti-competitive, and, in my opinion, they (Wizards) should be welcoming of competition to push them to do better. The microtransaction model that's been hinted at would turn a lot of people away from Sandcastle towards other platforms, whether allowed by this license or not, and if WotC decided to sue the other VTTs into oblivion, the internet never forgets, and there will be a “black market” for mods for VTTs that do exist to emulate or improve on features that Sandcastle gets.
WotC is definitely trying to prevent the emergence of another Paizo, who used the SRD to create another game system which competed with, and surpassed the sales of D&D in that genre, for four years. A lot of that has to do with what Wizards created with 4th edition, so many people preferred 3.5e, or Pathfinder, which some of us (at least my gaming group) referred to as D&D 3.75: an incremental improvement over 3.5e that wasn't the catastrophe we saw as 4e (full disclosure: I think I only ever played an early playtest one-shot of 4e, and never personally experienced the full system).
Paizo, as the second-largest publisher of tabletop roleplaying games, along with as many as 1500 creators, has pledged to create their own license. I applaud them for their efforts and would like to see what they come up with, but without the SRD, I'm not sure how well it's going to work.
The OGL 1.2 can be saved, if WotC listens to the more measured voices of the opposition. I still see a lot of shrieking going on, and no matter what, not everyone will be satisfied with the result—that's an impossible goal. It needed an update after 23 years. Keeping the OGL 1.0b was untenable. I'm not upset about my own cancellation of my D&D Beyond account to join in the chorus of those calling for a change using their wallet, and I will be playing the game for years to come I'm sure.