Jan 7, 2023

OGL 1.0a vs OGL 1.1 Killing The Goose That Laid The Golden Eggs

There was once a Countryman who possessed the most wonderful Goose you can imagine, for every day when he visited the nest, the Goose had laid a beautiful, glittering, golden egg.

The Countryman took the eggs to market and soon began to get rich. But it was not long before he grew impatient with the Goose because she gave him only a single golden egg a day. He was not getting rich fast enough.

Then one day, after he had finished counting his money, the idea came to him that he could get all the golden eggs at once by killing the Goose and cutting it open. But when the deed was done, not a single golden egg did he find, and his precious Goose was dead.

-Aesop's Fables

 


A major change to the OGL has been foreshadowed by Wizards for some time, but this leak by Gizmodo sums up everything that the DnD community feared. The OGL as we've known it for 20 years is being de-authorized, and in its place a new OGL 1.1 is being made that shifts virtually all the rights to Wizards and profits made will have up to a 25% royalty fee (or even more as some analysts have pointed out). The article says:

The new Dungeons & Dragons Open Gaming License, a document which allows a vast group of independent publishers to use the basic game rules created by D&D owner Wizards of the Coast, significantly restricts the kind of content allowed and requires anyone making money under the license to report their products to Wizards of the Coast directly, according to an analysis of a leaked draft of the document, dated mid-December.

Despite reassurances from Wizards of the Coast last month, the original OGL will become an “unauthorized” agreement, and it appears no new content will be permitted to be created under the original license.

Opinions range from the optimistic "they can't revoke the OGL 1.0a" to the pessimistic "not only can they revoke it, they can and will, and will tax you for it."

On the pessimistic side. The term perpetual doesn't mean what you think it does, in legalese it just means until the license is cancelled or revoked. Which Hasbro has the right to do whenever they want. The term authorized just means until it is unauthorized and replaced with a new authorized version.

On ENWorld this lawyer, Davy Greenwind, takes the most pessimistic view with this thread:

There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason.

As Matt Forbeck said in this tweet:

The word "authorized" in section 9 of the original OGL seems to be doing a LOT of heavy lifting.

On the optimistic side. Perpetual in regards to this particular license, and based on statements Wizards made over the years when the OGL was released means what you'd think: time without end, eternity. And the use of the term authorized seems to suggest new authorized OGL's may be released, but they cannot invalidate this one.

Ryan Dancey, one of the primary drivers behind the original OGL takes this optimistic view.

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 numerous places in email and blogs and interviews saying that the license could never be revoked.

In this long form video a contract lawyer also takes the more optimistic view. With these takeaways:

  • Contracts of this type that use the term "in perpetuity" cannot be revoked or cancelled.
  • Wizards itself said many times it cannot be revoked back in 2000 when it was first released, and multiple times after that.
  • In general where contracts aren't clear, they are not ruled in the party writing the contract's favor. And there is some ambiguity in the perpetual and authorized terms used.

This leaves everything in a state of uncertainty. The optimists suggest that there is little risk for those who want to continue publishing under the OGL 1.0a, but that the risk is greater than 0. While the safe route is to wait until this is settled and the future of the OGL is much clearer. We could hope that this was a planned leak by Hasbro to gauge the reaction, and that this leak is much worse than what the final form of the OGL 1.1 will be. 

We all will be watching this closely. In the meantime we still have our old D&D books and can continue playing and enjoying this game we love. It just might be a little harder to sell and share fan content online if Hasbro gets their way.


None of this is legal advice. I have no particular expertise in this field, only what I've learned about copyrights and contracts over the years, and binging many discussions the past couple of days on this particular issue. It appears ultimately it will have to be settled in court if it comes to that.

edit: a couple minor typos that do not affect the meaning.

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