Consideration in the OGL 1.0/1.1 #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract

If you enjoy this post, please retweet it.

So, the Open Gaming License 1.1 (“OGL”) was leaked. Let’s remember that 1) it could be fake; 2) it could be real but modified; and 3) it could have been an intentional leak designed to get feedback in dumbest way possible. We don’t strictly know which of the three it is, though the response of Wizard of the Coast (“WotC”) makes me believe that #1 is not an option. Here’s the response:

Oh, I’m sorry. Wrong media. Here it is.

I think it’s fair to be thinking about the issues this leak raises. I’d just prefer people not assume the sky is falling. Changes could be coming, however unlikely or meaningless they may be. Anyway, with all those caveats above . . . .

A Brief Review

When it comes to consideration, the OGL 1.1 falls into the same structural trap that the OGL 1.0 does. It licenses you “methods, procedures, processes and routines” as well as ” any additional content clearly identified as Open Game Content by the Contributor. . . .” The first part of that grant mirrors language in the Patent Act and patent law practice defining what can be patented. Likewise, these same words are used in the Copyright Act (specifically 17 U.S. Code § 102(b)) and copyright law practice to describe things not copyrightable. So, for a company like WotC that isn’t using the OGL to license patented subject matter (which is pretty much the case for all RPG producers), that first part clearly licenses nothing.

The second part of that grant is meant to reference the System Reference Document (“SRD”), but by its own terms could mean a press conference. A clear statement is a clear statement. However, in WotC’s case, they use the SRD. The content of the SRD is either mechanical (never copyrightable), an inseparable mix of mechanical and creative (and thus not copyrightable), or so simple and trite as to not represent even the “modicum of creativity” necessary to be copyrighted. So, my position has always been that, even with that second part, they’re still giving you nothing.

It’s apparently WotC’s position as well.

Now, with a new OGL on the horizon, maybe they’ll fix that. Maybe the SRD 5.1 (and OneD&D’s SRD) will contain licensable material. Assuming that material (or you’re assuming the material in the current OGL) is creative, does that mean the OGL won’t fail for lack of consideration?

Nope. It still fails, and here’s why.

An Analogy: Renting an Apartment

Recently, I started sharing this analogy on social media, and I think it makes it easier to understand the structural failure of the OGL. Let’s say you sign a lease to rent an apartment. It’s states that your rent is $800 (cheap nowadays), and that it runs from January 1 to December 31. Easy, right? Let’s say it also has a provision stating that you agree to abide by all the Rules & Regulations that appear in a second document. This is hardly rare. I’ve seen them more times than I can remember.

So, why put Rules & Regulations in a separate document? Is it to save space? Clearly not. If the lease is 3 pages long, and the Rules & Regulations are 10 pages long, then combined they’ll be 13 pages. Either way, it’s 13 pages of content, most of which you’re unlikely to read until there’s a dispute, so you’ll just skip ahead to the signature page and sign it. If the concern is organizational, then why not include them an exhibit or appendix? Again, why put them in separate documents that often aren’t even available when you sign the lease?

There’s only one reason: The Rules & Regulations are expected to change as circumstances change.

If the waste disposal company changes their pickup day from Tuesday to Monday, it makes no sense to say that trash can’t be put out until Monday evening after sunset. The Rules & Regulations must adapt. Use of common areas gives rise to the same need for flexibility. If anything in the Rules & Regulations were expected to go unchanged during the term of the lease, they could have been included in the lease.

Well, the OGL is your lease, and the SRD is your Rules & Regulations. The OGL sets the basic terms that can or cannot be revoked (separate discussion), but they reference a separate document where you get the current set of intellectual property that WotC (or any licensor) wants to license to you. There’s no legal or contractual reason to infer that any given licensor using the OGL is restricted from changing the contents of that document, and every reason to believe they can change it whenever they want.

You may think that, in this case, there is a reason to separate the two into different documents that has nothing to do with whether they can be changed. The OGL was intended to be used by other gaming companies with only their intellectual property within it. But that only solidifies that SRDs must be flexible. Also, it doesn’t get around the fact that the “clear statement” of the licensor could have been referenced as a required appendix or exhibit to the license itself rather than a separate document. It could have flat out stated that it was immutable, and absolutely should have said it is “incorporated by reference.” Again, there’s nothing (I’m aware of) in the contract, the law, or the history of interpreting consumer contracts that leads us to infer that the SRD can’t be changed. It’s a separate document (or oral statement!) that otherwise has no need to be separate. If I’m wrong, please point me to an example of a consumer contract with a separate, unsigned document (not merely an appendix, exhibit, schedule, etc.), not necessarily drafted at the time the contract is accepted, and not required to be in writing, that doesn’t expressly demand immutability in that separate document, yet is interpreted to require the separate document to be fixed. (That’s a mouthful, but it’s a lawyers job to interpret such sentences, so they know what I want.)

Aside: One thing that makes the OGL laughable is, carrying this analogy further, the OGL is like the lease and Rules & Regulations, but where the unit you live in, the amount of your rent, and the term of your rent all appear in the Rules & Regulations rather than the lease itself. I hope you see how batshit insane that is, but that’s what we’re dealing with.

This kind of uncertainty of consideration, especially where the licensor has no patents to license, calls the entire structure into question. I find it unlikely that this “contract” survives judicial scrutiny even if the licensee (non-drafter) of the OGL, wants consideration found so that you can enforce it. (Of course, what do you do with interpretation if the licensor is a game designer other than WotC? In that case, neither party drafted the contract, and by the OGL’s own terms, the licensor may not change it [the OGL].) Courts aren’t going to decide for the parties what they think should be included in the SRD with no guidance from the OGL to decide that. All it says is that there must be a “clear statement.” Statements change all the time.

Going back to the lease, your rent and term are set in stone. No matter what they do with the Rules & Regulations, your rent and term can’t be changed. The same is true here. The terms of the OGL aren’t changed by the SRD. You still can use their patents without any apparent restriction (isn’t that odd?), you still can’t use “environments” WotC mentions (that’s crazy), you can still accept the license merely by playing the game even if you’ve never heard of Dungeons & Dragons (“WTF?!”), etc. But again, there’s no reason to believe that the contents of the SRD are set in stone. They’re expected to change, and that also makes sense when considering that WotC has a federal right to control its copyrighted material. WotC hasn’t dedicated their work to the public, but a contrary interpretation could lead to exactly that without a clear statement of intent to do so. Federal copyright law will always override state-based interpretive principles. That is, state contract theories don’t overrule federal law (let alone the Arts & Sciences clause of the U.S. Constitution). I’ll have more to say on that in a future post, because the fact that copyright is involved adds even further strength to this argument.

On a side note, this is why the alleged irrevocability of the OGL is completely irrelevant. The OGL may be irrevocable, but the SRD isn’t (so to speak).

Could Things Have Been Different?

Someone asked me whether a license is even possible. Yes, it is, but not in the way the OGL was intended, and certainly not in the way you’ve all treated it all these years. The OGL 1.1 approaches a real license. It’s a shitty one, but it’s nearly a real license, and I don’t think it would have been received well even if the terms weren’t so onerous. I don’t think the OGL should have ever been (mis)characterized as license. Again, it’s point was to say, “We’re letting you use everything we put in the SRD,” even though most, if not all, of that material is not copyrightable.

What the SRD should have been was instead the exact opposite. It should have been a statement by WotC conceding what they didn’t own, and thus what you were free to use for all time because they had no right to stop you. They should also have said that, in the event they did own anything in the SRD, it’s dedicated to the public domain. If you think it through, that’s how you’re using it, and at least for the overwhelming majority (if not all) of that material, that’s what the SRD discloses. This would also alleviate every single concern I’ve ever stated on the OGL, because the OGL wouldn’t be needed.

Depending on WotC’s eventual statement, I may publish a post I have written that will be quite a serious statement on my part, but either way, I’ll be diving into some heavier copyright theory. Stay tuned.

Either way, can we all agree that WotC screwed up?

Follow me on Twitter @gsllc

Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)