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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
Two observations about this post. First, it was written shortly after the Open Gaming License 1.1 (“OGL 1.1”) leak, so a lot of this had to be rewritten to make sense. I may have missed a few things, so some of my points may be dated. Second, this could very well be the last post I make about the OGL specifically. I’ve addressed most things at issue, and I have a multitude of posts on this blog and my legal blog that address relevant topics generally. Besides, I know what I want Wizards of the Coast (“WotC”) and other game designers to do, so criticizing anything that doesn’t meet my needs is a meaningless effort. Expect more cat memes, mythology videos, and game design opinions going forward than legal analysis. If that’s not to your liking, that’s fine of course; just keep in mind what I’ve written here so you can reference it in the future.
The Open Gaming License, Version 2.0 (“OGL 2.0”), nee OGL 1.1, but now apparently 1.2, has stirred up quite a lot of controversy. WotC has continuously denied rumors that later turned out to be true, then shifted to declaring it a tie, and now has provided a mea culpa. The fact that they’re having so much trouble doing the right thing indicates that they don’t want to do the right thing. That’s annoying to say the least, but what’s most important is what they’re doing now. So far, what I’ve seen still fails to address my concerns about consideration and acceptance, but things are evolving rapidly, so we have to take things as they come, though I don’t trust them.
Many of you have called for boycotts of all things Hasbro, not just Dungeons and Dragons. Play-Doh is also in your sights, and #BoycottDNDMovie is trending on Twitter. As I’ve stated, I’m not on board with that hysteria here or elsewhere in the commercial world. There are too many good people that will suffer, and too much good material from them that will never see the light of day, if WotC has to lay them off. I feel like you’re throwing the baby out with the bath water, and at the expensive of people you don’t want to hurt. But that’s just me. You do you. I’m here to give you a dose of real hysteria.
I Swear This Section Will Be Quick
In short (like real short, so don’t sweat the missing details), game mechanics are not copyrightable, but your specific way in which you write those rules are. Accordingly, I can rewrite the entire Player’s Handbook in my own words, without any of their artwork, and not run afoul of WotC’s copyright. Would that be a cool thing to do? No, but there may come a time when it is both necessary and fitting.
My Proposed Response
Here’s what I’m going to do if WotC doesn’t fix the problem to my satisfaction: I’m going to rewrite the entire 5th Edition Player’s Handbook in my own words, without any of their artwork, and publish it free on this site. Don’t believe me? I estimate that I’m at least 40% finished, and it’s all public domain material. Here’s an excerpt:
It includes race and class write ups from other sources as well, often pointing out very good reasons why WotC doesn’t own the material. Here’s another excerpt:
Do you think I’m afraid of a lawsuit? Here’s yet another excerpt.
When OneD&D is released, I’ll do the same thing but with its version of the Dungeon Master’s Guide, which would be a much more serious concern for WotC considering that dungeon masters do the most purchasing. I was reluctant to do this. Not only would a court battle be a hassle, but I also don’t want the industry harmed. However, if WotC continues to push the false narrative of an “open gaming license” and doesn’t instead shift gears and go the route of dedicating to the public domain, then they’re the ones doing the harm. Massive harm. I’m simply publishing public domain material, and if anything appears to be creative, there’s always this. You may still not like this idea, but here’s something else to consider.
A Nefarious Plan
My post had subtext I wouldn’t expect anyone but an attorney well-versed in intellectual property to decipher. If the courts review table-top role-playing games (“TTRPGs”), we’ll learn that, given the nature of copyright law, TTRPGs can’t generate profits big businesses require. That is, while small publishers can expect to continue to make the relatively small amounts that they make on TTRPGs, TTRPGs will no longer be the cash cow that WotC has made of Dungeons & Dragons. WotC probably knows this, as evidenced by this provision of the draft OGL 2.0:
In case this isn’t clear, that draft gave WotC permanent access to your intellectual property, which they can do with as they please and have no obligation to pay you for that privilege. Now I know WotC has backtracked on that particular provision, but only because the feel they have no choice at this point. While I don’t trust them, I don’t care at this point whether they mean it. This was, at one point, their plan. If they think they should steal something you won, then it’s far for me to steal something from them that they do not own. At least I’m not really stealing.
But why would WotC even do something like this knowing that, once implemented, it would start to generate heat that could destroy the brand? Remember when WotC said that OneD&D would be the last version of D&D necessary? I suspect that’s because they see the writing on the wall. WotC sees my posts and others like them that necessarily lead to this legal conclusion and think, “Our well of money is about to dry up, so let’s do a last-minute cash- and intellectual property-grab. When it’s over, we’ll have made a ton of money and have a perpetual, irrevocable license to other people’s intellectual property that we can use to make books and other products that will survive the legal fallout.”
A friend of mine, who knows WotC culture far better than I, doesn’t think this is WotC’s plan, but I’m working with what I have, my own ignorance be damned.
Michael Hammock, an economics professor at Florida State University weighed in. A Facebook connection posted his quote in which he discussed how foolish the leaked OGL 2.0 would be if authentic. Could WotC be that stupid? Sure, but I wouldn’t make that assumption. They’ve been too successful for us to think they have so little business sense. They likely know the consequences and just don’t care. In summary, I suspect they know TTRPGs are no longer going to be profitable enough for them, and they wanted to secure new sources of revenue at your expense before that’s a done deal. So no, I won’t feel the slightest bit guilty of thwarting whatever remains of these plans, as my actions will be 100% legal and not in any way larcenous. You can’t steal what no one owns. Moreover, WotC may not even sue me, not because they realize that the suit would be frivolous, but because it would just make matters worse for them. They also may be facing lawsuits from other parties, and there are only so many fights they can handle at one time. The last one they need is one with a counterclaim for copyright misuse that will have serious consequences.
Copyright law is in desperate need of reform, but it’s great stuff. I fully support the notion of (a reformed) copyright, but even in its current form it has consumer protections, such as copyright misuse, that prevent copyright holders from abusing their copyright. As far as I’m concerned, WotC has misused their copyright, at least with respect to their actions against me, and many creatives are going to be forced out of the market by an OGL anywhere near what we’ve seen so far. This hurts everyone, so I’m glad you’re finally seeing WotC for who they really are.
If you still think I’m the bad guy at this point, it’s because you’re the bad guy.
Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)