Let's roll some dice, watch some movies, or generally just geek out. New posts at 6:30 pm ET but only if I have something to say. Menu at the top. gsllc@chirp.enworld.org on Mastodon and @gsllc on Twitter.
Note: While this post pertains to the OGL controversy, this is not a legal analysis. This is just my ramblings on how I live my life.
I had a Twitter conversation with a friend of mine. Here’s how it started.
Next time we hang out, you’ll have to explain it all to me in a way that doesn’t make me roll my eyes and say, “You know what? I might not actually care.”
But don't think that I'm accusing you of being a bad guy. You're not the bad guy. WotC is, though. Very much so.
— Rob Bodine, gsllc@chirp.enworld.org or @dice.camp (@GSLLC) January 11, 2023
Because it was on Twitter, I didn’t give him a full argument. So, here it is.
Erik uses an iPhone, and we know that suicide and poor working conditions are problems at the infamous Foxxcon City where they’re made. The stakes with Dungeons & Dragons (“D&D“) aren’t nearly that high, but they are analogous. If you continue playing D&D, you’ll be allowing them to ignore the concerns of third-party publishers whose livelihoods have depended on OGL publishing for as many as 22 years. This is going to happen anyway because, as I’ve previously pointed out, the lifeblood of any business long-term is new customers. As long as Wizards of the Coast (“WotC”) is pulling in new customers that lack the knowledge of the controversy, WotC doesn’t care if they lose the old farts like Erik and me. But Erik’s thoughts are shared by many legacy players, so to the extent that some of the younger crowd might know about, and object to, the developments surrounding the OGL, Erik, et al. will offset that effect, making it just as unlikely to convince WotC to change course.
So, is Erik the bad guy after all? Yes, but not for this. 🙂
If Erik gave up his iPhone for a Samsung Android phone, would he avoid the ethical dilemma? No. Conditions at Samsung haven’t been much better. In short, Erik would have to stop using cell phones, which I’m sure he’d happily do the moment the rest of you give up yours. So it goes with D&D. Are you going to drop D&D because of this? What are you going to play? Savage Worlds? What are its creators’ opinions on abortion? What about Dragon Age RPG? Are its creators cat people or dog people? (They better be cat people.)
I know a lot of you think this way. You call for boycotts of companies based on a viewpoint allegedly or obviously held by a couple of high-level executives or owners with which you disagree. False appeals to Godwin’s Law notwithstanding, I’m not on board with that. Not only does it seem exceptionally arrogant, but it’s also counterproductive. The only people that go broke or have difficulties (if any) during a boycott are the employees that aren’t filthy rich and may even agree with you. I think that’s probably the case for WotC employees.
The worst thing about @Wizards_DnD's recent stupidity is that it reminds me of the stark contrast between their legal department and corporate heads (who suck) vs. their creatives (who are talented and, to the extent I've met them, nice people). 🤷🥺 #OGL#DnD#RPG#TTRPG#WotC
— Rob Bodine, gsllc@chirp.enworld.org or @dice.camp (@GSLLC) January 10, 2023
By all means, be aware of the problems with cobalt mines in the Congo, and write your congressmen about it, but don’t let that stop you from buying an electric car. I’m not willing to yell at someone who continues to live their life as fully as they can. The world sucks for a lot of people. If it doesn’t for you, you shouldn’t feel compelled to bring yourself down to that level. However, if you choose to take that stand individually, I won’t criticize that either. You have every right to spend your money according to your principles. There’s good arguments on either sides. Either way, I’d like you to consider funneling some of your money to third party publishers to make sure that remains a viable market during the era of OGL 1.1, 2.0, or whatever it winds up being called. I just don’t want anyone to forget who the actual bad guy is.
WotC Legal and Corporate. It’s WotC Legal and Corporate.
Yesterday, Paizo announced that they were developing a “system-neutral, open RPG license.” It’s overwhelmed with traffic, so you’ll have to be patient when trying to load it. They had a form for volunteering to review it and give feedback. After I signed up, I noticed some text that said it was for game designers only, so I doubt I’ll get an advanced copy for review. Maybe that’s a good idea considering my initial impression.
Same Old Song & Dance
As I’ve been running into the ground for well almost 15 years, the OGL isn’t a real license, and claiming it is has done a lot of damage that we’re finally seeing manifest in real harm, which I predicted. You can’t say I haven’t been warning you that this day would come. Talking about irrevocability or any other concept that applies to contracts shows that you’re missing that critical point, and that’s exactly what Paizo does in this announcement.
We believe that any interpretation that the OGL 1.0 or 1.0(a) were intended to be revocable or able to be deauthorized is incorrect, and with good reason.
Unless their position is that those interpretations are incorrect because they simply don’t apply to non-contracts, then they’re advancing the same false narrative that Wizards of the Coast (“WotC”) has since at least 2004. The fact that they intend to state their proposed consideration in a separate document suggests that we’ll be dealing with a “contract” with far too much uncertainty as to what it actually licenses. Maybe it’ll be an unmalleable appendix rather than a separate document — we don’t know — but everything I read in that press release leaves me pessimistic.
Remember, the OGL should have been an acknowledgement of the material WotC conceded they didn’t own. If they wanted it to be a real license, then it must be 1) specific about exactly what material the public now use, and 2) that material must be material the public otherwise wouldn’t have been able to use. That is, the consideration must be both obvious and real. Any other approach with Paizo’s license will mean that Paizo is continuing to feed the public that false and dangerous narrative. Granted, no one’s going to die because of this, but people’s livelihoods are on the line, so “dangerous” fits in that context. If you continue to buy into it this false narrative, you’ve learned nothing from the turmoil the OGL has caused, but you can’t blame WotC for it any longer. Like the danger from cigarettes, the information is out there, so it’s on you if you accept the risks.
And now we finally have WotC’s official statement, which demonstrates a victim complex. They 1) still intend to treat it as a legitimate license (of course); 2) act as if, on the week the final copy was to be distributed, that they were always just looking for feedback; and 3) overfocus on the non-discrimination provision to which no one objected, all to make themselves look like the good guy. Additionally, as Stephen Radney-MacFarland pointed out, you expect us to believe that they “didn’t see this coming”? Unbelievable, and yet paradoxically exactly what we expected.
But It’s Pazio!
You may believe Paizo’s promise of irrevocability even though it wouldn’t be legally enforceable. Some of the readers of this blog know Paizo management personally, so maybe you’re right for trusting them. But consider this: What if Hasbro’s chief rival, Mattel, decides to take advantage of Hasbro’s tarnished reputation and enter the RPG market? What would be their best way to jump start such an effort? If I were them, I’d buy Paizo, and if that happened, would you still trust Paizo to do the right thing? Do you know any Mattel executives? Would that even matter? Would a $7.18 billion business never change course because they’re a “nice bunch of guys”?
Still, everyone, including me, should give Paizo a chance. Maybe they’ll surprise me despite this reckless language.
Here’s a nice little diversion from the heavier shit I’ve been discussing over the past few days (which will return tomorrow).
Over a year ago, I ran across a website where you could pull up a radio station from around the world and listen to them. I started this post on October 11, 2021, then left it in my drafts where it was lost to time. Instead, you got this. With needing a break from the heavy, I decided to finally publish it.
I couldn’t decide which image I liked more (hated the least?), so you get two of them.
So there. Now you know that Ireland listens to the same music we do in the United States of America. In fact, a ton of Europe listens to exactly what we do.
Just a quick note today, as my next bit of legal analysis I’m preparing is going to take a while to write. Try not to shoot the messenger for today’s post. I’m just trying to help.
I see a lot of people online calling for a new open gaming license that’s done correctly. Sadly, that’s missing the point.
Our problems aren’t going to go away as long as you continue to buy into the fiction that the Open Gaming License (“OGL”) is a real license. It clearly isn’t, but if you treat it that way by giving lip service to its arguments that apply only to real contracts (“It’s irrevocable!” “It can’t be deauthorized!”), or make calls for bigger, better, open gaming licenses, you can still be duped. As I said yesterday, the OG”L” (which should no longer contain the misleading letter L in it) should be a statement of what the game designer acknowledges they don’t own, and thus have no power to stop you from sharing. With RPGs, that’s far more material than you probably realize.
To the extent that a publisher has copyrightable material and wants to dedicate it to the public domain, they should simply do that with an undeniably clear statement to that effect. (Copyright law won’t allow contract ambiguities to result in such a dedication.) Otherwise, you might as well draft a “closed gaming” license with proper means of acceptance (i.e., signatures) and clearly stated (and proper) consideration, and just make sure the terms aren’t unreasonable. What many of you are actually asking for is oxymoronic, and as a result, using SRD material that has even the tiniest chance of being copyrightable could still get you in trouble. It hasn’t been licensed to you because the OGL is not a license, and there’s no doctrine of laches in copyright, so the copyright remains enforceable even after 20 years.
I’m glad so many of you, especially attorneys, are finally catching up with my rants from the past 10-15 years and my posts from 3 years ago, but some of your hearing has thus far been selective. I’m making a call for awareness from game designers and honesty from and the attorneys they employ, but the public’s insistence on believing the lies surrounding the OGL is a serious hurdle to those goals. This is not me merely demanding legal precision. Figurative use of the word, license, has added to your misplaced faith, so it’s no longer acceptable for any so-called “open license” to use that word. We’re seeing the very real, tangible effects it’s having on the community and industry right now.
We don’t need another fake license; we need an honest legal statement or a real license. As long as you allow this fiction to rule the day, the community and industry will suffer regardless of how this whole OGL 1.1 thing shakes out.
Reality checks can sometimes be helpful, but you need to be open to the help.
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.
We know you have questions about the OGL and we will be sharing more soon. Thank you for your patience.
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.
"Wizards, however, rarely releases Open Content that is not just mechanics." If the #SRD is the #OGL's consideration, and only a small part of it isn't mechanics, isn't #WotC conceding my arguments about stat blocks (a large part of the SRD) being just mechanics? #DnD#RPG#TTRPGpic.twitter.com/SWCkHklwsb
— Rob Bodine, gsllc@chirp.enworld.org or @dice.camp (@GSLLC) January 7, 2023
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?
Judge, attorney. Same thing. In light of all the hubbub over the OGL, for Mythology Monday, let’s dive into Greek titan/goddess of justice, the personification of law, care of our pals at Mythology & Fiction Explained.
Sundays now are lazy days for me. I either post something silly or other people’s work. Usually both. Today, I’m giving you some irony that’s likely to generate some heat. Here’s a video showing the result of asking artificial intelligence to make villains out of various countries.
The irony? This art can provide inspiration for TTRPG villains.
I love this version of Anubis. I’d like to see a species based on Anubis that serves his interests.
Spain created its villain, and he’s looking for payback.
Today is the one-year anniversary of closing on my house. While I didn’t move in until the 11th, I became a homeowner on this day. After settling in for a year, I wanted to get cat, but a pipe burst on Christmas Day and flooded the place. I’m going through the long, arduous process of getting it straightened out, so the cat will have to wait. Despite these recent troubles. I really love this house and the neighborhood. It suits me perfectly.
Isn’t Microsoft Paint the best?! Eat your heart out, Nowak!
But wait! It gets … worse? Better? Throughout those posts, if I referenced a legal concept that wasn’t critical to the theme, rather than spell it out for you, I saved space by linking to a discussion of that legal concept on my far less popular legal blog. Here are the hits for that blog over the past few days.
Since writing this post, these numbers have gotten MUCH bigger. Today’s hits are now twice as large as December 29th’s and are approaching December 21st’s.
I don’t want to be famous, so I may have to shut down these blogs. 🙂
Also, I should have tagged John and Tales of Arcanayesterday, so I’m doing so today — with top billing — even though they have nothing to do with this post. So, there you go. If I’m going to be famous, I’m pulling those nerds into it with me.
Something Serious
This is a supposed excerpt from the OGL 1.1. I have no idea if it’s real.
I tend towards skepticism generally, but we're starting to get multiple testimonials that this is part of the upcoming OGL 1.1, I'm hoping the rumors are not correct, but if they are, then this is awful.#opendndpic.twitter.com/VIAdnzIz4z
. . . you’re welcome. Sort of. It’s clear that my concerns about the OGL are being met, for better or worse, and I know WotC Legal read my posts. This means that there’s a good chance that the OGL 1.1 will be a real license because I pointed out why 1.0 wasn’t. The speculation is that 1.1 will be arduous, but the fake OGL is no less arduous. It simply appears open because WotC is lying to you about what they’ve actually licensed to you (reminder: NOTHING!). They could always have changed their mind and done this. Some people have said to me that WotC could never pull the rug from underneath the community because they’d revolt, but now that they’re telling you the truth, they’re saying (straining the metaphor a bit) that no rug is henceforth standard operating procedure. They’re expressly doing what I told you they always could, and the community is preparing a revolt. Voila!
So, now they’re going to tell you the real story, and it’s clear you don’t like it. Maybe you shouldn’t. Either way, this may not be good for business, and this may not change WotC Legal’s status as . . . well, you know my opinion, but at least you’re going to be protected from deceit (again, assuming this is real and representative of what they’re going to do throughout the OGL 1.1).
And then there’s this:
Sure, but FFS, that's always been the case! You could rewrite the freaking PHB in your own words and publish it for profit, and #WotC couldn't do a damn thing about it.
Well, except for spend millions of #Hasbro's billions on bullying you into backing down. There's always that.
— Rob Bodine, gsllc@chirp.enworld.org or @dice.camp (@GSLLC) January 6, 2023
Think about it, people, but not too hard, because . . .
As you all know, someone got a hold of a snippet of the new OGL 1.1 draft. A few people (publicly and privately) have asked me to weigh in based on my Tome of WotC Criticism. Sorry, but I’m not going to make the same mistake many people did jumping to conclusions about the OGL 1.1, so I’m certainly not going to comment on its text that I haven’t read. I’m also not relying on Gizmodo’s interpretation due to all of humanity’s experience with news media. I will remind you all that the current OGL isn’t a real license. No one has signed it, it’s terms for otherwise accepting it are laughable, and it doesn’t actually license you anything.
Beating a Dead Horse
WotC owns its expression of the game mechanics, but despite their implications, they never license that to you. The OGL (even assuming it’s real) uses terminology appearing in both the Patent Act and Copyright Act, saying “this stuff is what we’re licensing.” Those things are stated to be patentable subject matter in the Patent Act and are expressly excluded from copyrightable subject matter in the Copyright Act. And just to be on the safe side, the OGL says (in case it’s not already obvious, paraphrasing):
If any part of what we’re licensing falls under copyright or trademark [you know, such as the specific expression of game rules!], then we take that out of Open Gaming Content, stick it in Product Identity, and don’t license it to you.
No matter how seriously you take the OGL as a license, there’s simply no way to interpret, “processes, methods, routines, and procedures” as including anything copyrightable, which means nothing copyrightable is being licensed. So, despite the SRD containing WotC’s expression of game rules, and despite WotC’s claim to be allowing you to use that material, WotC is free to pull the rug out at any time and say, “You used out expression!” They never actually license it to you because the SRD is not in any way incorporated into the OGL.
Back on Point
It’s a bit hard to answer your questions or respond to your concerns when they’re all based on so weak a foundation, but here’s something on point. There’s a huge debate going around as to whether the OGL can be revoked. For those that say it can, you’re wrong because there’s nothing to revoke. It isn’t real. For those that say it can’t, you’re referencing language from the FAQ and OGL itself that suggests that. Why do you think that language makes it so clearly irrevocable? The FAQ itself states that “people will just ignore [a revocation] anyway.” How is it that a real license can simply be ignored? Because it’s not a real license. The answer to both groups is the same. You’re both right because you’re both wrong.
While the originally stated intentions were noble, this is, at least for at least the past decade or so, a big sham, and it’ll be very interesting to see whether the OGL 1.1 addresses these fatal shortcomings. Even worse for WotC, here’s an attorney taking the OGL seriously and threatening WotC with a lawsuit if they don’t clarify their position on revocation. To defend against any such lawsuit, or even to respond to the letter, may require WotC to take my OGL post and just read it. They’ll have to admit the OGL is a sham. Funny.
For now, though, I’m in the same holding pattern as you. Until we see the text, we don’t know. If, however, the OGL 1.1 corrects its errors as I’ve identified them, my arrogance level will rise so high that, well, I’d probably qualify for employment with WotC legal.
Play What You Want 