Jan 09, 2023 by [ "James R. Miller"
]
Categories:
rpgs
Tags:
ogl
I feel like I needed to write a post about this whole OGL kerfluffle going on. First, while I’m a licensed lawyer in Texas and Michigan, I am not an intellectual property lawyer. I know some large concepts but I do not have the experience on the edges and nuances of it, so everything I write in here could be wrong. Also, everything stated in here regarding the actions of Wizards of the Coast (“WOTC”) / Hasbro should be interpreted as if there were an “allegedly” appended in front of it. Whether I use or don’t use “allegedly” or a variation thereof below, just assume in intended allegedly.
First, to all of the people saying, “This is no big deal! This is fine! Don’t worry about it; you’re not making $750,000” etc., you need to go read more carefully. It is so much more than this, and could have the effect of killing third-party publishing for the upcoming 6E as well as prior editions, and for some of the vast library of other games based on the OGL.
Like any good lawyer answer, the answer is maybe. Unfortunately, section 4 of the OGL 1.0a does not include the word “irrevocable” and generally, intellectual property licenses are revocable by default. However, the vast number of years that have gone by without WOTC revoking it, may invoke the legal concepts of waiver, estoppel, and other claims.
Section 9 is also problematic in that there is no definition of “authorized”. WOTC by the leak has purported to deauthorize the older OGL versions and to only leave the new version 1.1. My reading of the intent of this section 9, without an “authorized” definition, is that WOTC could update 1.1 to be the only license for FUTURE content they release, but not that WOTC could come back and deauthorize 1.0a for say, the original 2000 SRD or the 5E SRD released. However, it appears that WOTC’s intent, if the leaks are true, are to deauthorize 1.0a for all prior content. Generally, in interpreting legal documents, there is an interpration maxim or rule called “interpret against the drafter”. When there is an ambiguity, and when the contract has no language overriding the “intepret against the drafter” rule, a court will resolve the ambiguity in favor of the party that didn’t draft the language (i.e., the third-party publishers). So, I would lean towards a court not enforcing this new interpretation of “authorized” per the leak.
Basically, I think there is litigation coming, and while I hope that the third-party publishers win, I just don’t know who wins. It is my understanding that the orignal author of the OGL has gone on record saying that the license wasn’t intended to be revocable; but, who knows if that will effect a court’s ruling. WOTC has allegedly had prior written statements on their website saying it’s not revocable, which could also fall into some sort of equitable argument like promissory estoppel, or even rise up to potential fraud against the licensees.
Nothing; so long as they can’t invalide OGL 1.0a.
The leaks, if true, contained languages that force you to give WOTC a forever license to use your work, for free. If they like what you made, it is now theirs to do with as they please. It’s as good as if they were the original creators of that work themselves. This is similar to the DMs Guild license; however, at least with DMs Guild you can use the full Forgotten Realms IP (which you can’t under the OGL). This one angers me on a moral level and just reeks of corporate greed. Ironically, it looks like these changes might (inadvertently?) target the Tolkien Estate or possibly Disney, as there may be Middle Earth / Star Wars IP that is linked to the OGL 1.0a. Talk about an upcoming Kong versus Godzilla lawsuit if WOTC doesn’t back away from the leaked language.
I suggest looking into systems other than 5e/6e for future table-top gaming. WOTC has shown, in my opinion, by not immediately denying the leaks, that they are just as awful and greedy as any other large company in the world. They are in a unique position to make giant piles of money off of their next system in concert with their existing third party creators, just like they did with 5e; but, they are throwing a huge wrench into their community, influencers, player bases, and most importantly their future potential dungeon masters. Piss them off, and there will be no one to run your game and get players to buy books and merch.