How will WOTC's new OGL affect D&D/Pathfinder CRPGs?

[Mortmal]

Wont affect CRPgs for the simple reason almost none are being made, and those last years they really did nothing of the d&d brand. Thankfully we got larian and tactical adventure which are non controversial in content and would comply to any corporate OGL change anyway. If you want to make indie crpgs there's just so many systems you could use instead.Rulesets arent important at all.

 

[KeighnMcDeath]

I really don't care what system is used on CRPGs. Fucking computer is doing the number crunching.

 

[POOPERSCOOPER]

I have no idea what any of this shit means but i guess fuck Larian? I don't know what else to say.

 

[copebot]

Yeah, that's the question. I think that's the way it should work out - if you had the license for some work you did under OGL 1.0, you have it in perpetuity. So if the new license revokes the OGL, then only works created after that would be covered by the new terms.

I've never had to review a contract like the OGL or whatever they're calling the new thing, but I would think a court would look at the word "perpetual" and give it its clear meaning for things that were done under the 1.0 license. I cannot see how WotC could force Paizo to remove its works from the marketplace, and I don't really think they're going to try to stop Paizo from making more Pathfinder content. Hope not, anyway.

I think that's the crux of the matter, whether the license holder retained the legal ability to revoke further use of the old OGL, meaning old works stay but new ones can't be developed on it. I heard that was WotC's intent, that OGL 1.0 would become "unauthorised", but - not being a lawyer, let alone a U.S. one - that seems a bit counterintuitive to me. For a parallel, how would public domain be handled? If you had a piece of IP that entered the public domain, and then Disney changed the law to extend copyright again after that happened, would the respective work be "pulled" from the public domain and granted back to the prior IP holder?

I have been told, multiple times from different people, that gameplay mechanics cannot be copyrighted. What this means is that essentially, someone could copy dnd 5e (or a more worthy edition) wholesale and get away with it.

What is copyrighted however, is very important. That is, the specific text of those gameplay mechanics, spells, monster names, etc.

If someone wanted to go through the trouble of copying 5e but change 100% of the text, then theoretically that's legal.

There's also a question of legal expediency. Being able to counter a hypothetical WotC claim with "OGL content was released under a perpetual public license" is a simple, accessible approach. Whereas having to fall back on "game rules can't be copyrighted" might open one up to legal attrition if WotC were to start nitpicking the adopted OGL material for what's game rules versus valid literary IP, like names and formulations, which could be a costly and daunting prospect for a smaller author.

The 2000 OGL does not give anyone who signs it much authority that they did not already have apart from affiliating themselves with the OGL. Copyright law just does not do what WOTC wants it to do, even in the US. There are some lawyers who will do anything that you tell them to, but most lawyers looking at the state of copyright law as it relates to game rules would tell WOTC that copyright does not protect what they want it to protect, and that any interpretation of the law that says that it does is a novel and mostly untested one.

I think part of the purpose of the OGL was to create the sense among creators that it protected more than it did, and that if you wanted to rip off the ruleset you had to play nice and sign the OGL. In reality, it was a magic feather. Its rights extend farther with respect to its trademarks in a mostly conventional fashion. But if you do what you already had the legal right to do (while abstaining from using their trademarks), you were almost certainly in the clear.

This case filed by WOTC (https://www.scribd.com/document/593...s-lawsuit-against-TSR-LLC#download&from_embed) against nu-TSR is a good example of this: the only claims made are federal trademark claims. Copyright is nowhere to be found in the complaint despite the system similarity. Davis Wright would not make frivolous or otherwise risky copyright claims when it can stretch a little to make the common law trademark claim, and that case anyway is totally contingent on whether or not they can successfully challenge TSR's registration with the USPTO. But nuTSR knowingly walked into that conflict by calling themselves TSR on the risky theory that because Wizards had allowed the mark to expire that it meant that it was free-and-clear up for grabs.

 

[lycanwarrior]

WotC explicitly stated, at multiple points, they can't revoke the old license. The only question is who sues and who sold out.

From the recent videos I've watched, that's not what I'm hearing. WotC may in fact try to revoke the old OGL 1.0 and even retroactively state that previous OGL products will have to be updated to the new 1.1 version.

I guess we will have to see once the deadline passes for compliance.

 

[lycanwarrior]

Wont affect CRPgs for the simple reason almost none are being made, and those last years they really did nothing of the d&d brand. Thankfully we got larian and tactical adventure which are non controversial in content and would comply to any corporate OGL change anyway. If you want to make indie crpgs there's just so many systems you could use instead.Rulesets arent important at all.

The recent decision by WotC to cancel a bunch of upcoming DnD video games is pretty big sign of things to come.

 

[deuxhero]

WotC explicitly stated, at multiple points, they can't revoke the old license. The only question is who sues and who sold out.

From the recent videos I've watched, that's not what I'm hearing. WotC may in fact try to revoke the old OGL 1.0 and even retroactively state that previous OGL products will have to be updated to the new 1.1 version.

I guess we will have to see once the deadline passes for compliance.

They can certainly try, but they'll be sued for it and that FAQ, as well as all the internal communication the former VP claims exists, will become evidence.

 

[rusty_shackleford]

it won't, they can't retroactively revoke the license

From the recent videos I've watched, that's not what I'm hearing. WotC may in fact try to revoke the old OGL 1.0 and even retroactively state that previous OGL products will have to be updated to the new 1.1 version.

They can do a lot of stupid things, doesn't mean much.

 

[InD_ImaginE]

While this won't affect existing games, the only one I am concerned with is KotC 2. Would Pierre still be able to make the other 2 games?

 

[Cryomancer]

Rulesets arent important at all.

Strongly disagreed. I dont think that playing dark sun on 2e and in 4e are the same experience.

Game mechanis in overall has a huge impact in gameplay even in non rpg games. Compare using gm6 lynx in arma 3 and in dirty bomb, one is a realistic milsim, another, a arcade shooter.

While this won't affect existing games, the only one I am concerned with is KotC 2. Would Pierre still be able to make the other 2 games?

Can he adapt a retroclonr? What will jappen to retroclones?

 

[copebot]

I skimmed the alleged draft of the new OGL here. http://ogl.battlezoo.com/

Really, a lot of this is more about trademark than it is about copyright. The Comments under VII (termination) look to be written by non-attorneys and make sense in the context of the recent lawsuit against TSR. If you are using WOTC's trademarks under license to market the work, they will at least try to sue you for diluting those marks and to force you to stop using the OGL if you were using the OGL. What the new OGL does not really do is effectively prohibit anyone from using rules content or uncopyrightable conceptual content (e.g. the idea of a Bixie or its stat block).

Under IX., the indemnification clause is really a nonstarter and may be the most objectionable part of the agreement. By signing, you are taking on open-ended liability for WOTC's attorney fees.

Under X. A. and B., those terms are also total nonstarters. It makes no sense, especially for larger creators, to surrender all IP rights to WOTC. It defeats the purpose of a licensing agreement. It becomes more of a work-for-hire arrangement. You have all the burdens of being an independent creator with none of the rights. News flash as to X. B. -- if you are giving the company an "nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose," then you do not "own the new and original content that you create." WOTC owns it now and your name is just on the papers with the government. This licensing language is in fact more restrictive and weighted to the platform than many of the similar agreements that users sign with the social media and ecommerce platforms.

Under XIII. B., this just means that if you sign this, any contracts you had with WOTC before, including the old OGL, are superseded, and this text now controls the relationship.

There is no arbitration clause (good), but you do waive the right to a jury trial (maybe good or bad depending on the facts of your case), and you consent to jurisdiction in Washington (can be good on the law for smaller businesses, can be bad because corporate home team advantage).

I think the correct read on this is that if you sign this as an individual, you are becoming an employee of WOTC without the rights of an employee, and if you are a company, you just surrendered all your shares to WOTC without being paid for it. No matter what your situation you are effectively surrendering your IP rights.

For small game developers, I don't think it makes any sense to sign this agreement, but it might make sense to negotiate a separate and more favorable licensing agreement. If you were to sign this, you might as well just get a job (in a better industry) so you get health insurance and a regular salary and regular working hours and all the legal protections that employees enjoy. 1.1 I. ii. clearly states that this is not an agreement for video game content so you cannot even accept it for video game licensing. So that part actually makes it so that this only applies to tabletop content and not to other types of content.

I think the provision in 1.1 IV. which requires you to clearly identify what is licensed content and what is not is onerous and far too risky for small creators to accept. Since the standard is so subjective and the decision is probably not being made by a lawyer, the tendency is going to be for WOTC to be arbitrary and capricious in enforcing this idea, which as far as I know has never really been tried in licensed media anywhere and at any time. It just seems like this provision is a trap that is setting up anyone who signs it for liability and unending creative headaches.

What is the solution? Don't be a fuckin' retard and don't fuckin' sign this agreement. There is nothing stopping you from making open content using D&D's rules and publishing that content so long as you do not affiliate with the OGL and suitably disclaim any association with WOTC's trademarks.

You have to think of what WOTC is giving here and what the independent creator is giving up here. WOTC is giving access to a publishing platform that has speculative and unproven reach. They are giving access to a lot of content, but a lot of that content is actually not really copyrightable anyway because it is rules or idea content, and copyright only protects the specific expressions of ideas. So their "permission" is just illusory anyway, and comes with a lot of new contractual requirements and headaches associated with it. They are giving access to association with their trademarks, so that you can say that your product is not even officially licensed, but is rather provisionally licensed under the nu OGL. But they can take that back whenever they feel like it, and sue you if they think you are tarnishing the reputation of those marks, perhaps on ever-shifting grounds of racismsexismtransphobia, soon to be pedophobia.

Under 1.1 V. C. they talk about the controversial "Expert Tier" that mandates a fat royalty for creators earning over $750k/year. They also say that you will probably want to move into a directly negotiated licensing agreement. This to me seems reasonable, but I think everyone should be negotiating a better contract than this because the terms of of the OGL are oppressive to small creators. The royalty requirement seems to be getting a lot of attention, but the other terms are actually much worse, so this is just the fee you pay for being successful in spite of your obvious stupidity for signing the agreement in the first place.

It also shows why it's a bad contract for creators: they can use the fact that you are bound to the OGL to negotiate crappier terms on your new licensing agreement, because it gives them the power to walk away and then continue to rape you on royalties. But even worse, they can just basically take your IP now that you have validated it in the market and you have no recourse anyway.

In terms of the royalty fees and the collection mechanism, none of that is that unusual. The other requirements are what are more onerous. Sure, small creators get $0 royalty requirements, which is "generous," but they are taking on unlimited liability because of the indemnification clause, and they are taking on possibly onerous compliance costs because of the special labeling requirements within the content itself. There is no benefit for small creators to sign this, because they already have to bear all the costs of marketing and distribution from scratch. If a small creator is already successful enough with their own platform, they can negotiate a better agreement that does not involve a surrender of IP rights, ponderous labeling requirements, and a better royalty arrangement. Access to D&D's special new speculative online distribution system is a benefit of ????, especially when creators already have access to any number of other competing alternatives for distribution that do not come with such onerous requirements. The benefits would have to be much, much larger to be worth the costs.

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

1.1 X. A. i. a. provides for a 30 day cure period, which is good. The commenter here reiterates that they hope to use this to police for heterocentrism et alia, so if you sign this, you are signing up to be fucked in the ass when you least expect it by SJWs for various SJWey reasons.

In conclusion, don't sign this. They want you to think that their content is protected, but it's generally not, you can just walk in and take it and use it for free as long as you do not associate with their trademarks and do not blatantly copy text, images, sculptures, or other form layouts in a substantially identical manner.

 

[Gargaune]

In conclusion, don't sign this. They want you to think that their content is protected, but it's generally not, you can just walk in and take it and use it for free as long as you do not associate with their trademarks and do not blatantly copy text, images, sculptures, or other form layouts in a substantially identical manner.

Thanks for the breakdown, that indemnification bit should be enough to scare the pants off anyone. Just as an academic curiosity regarding 1.1 "superseding" prior agreements and in relation to your earlier reply, though, can WotC legally revoke the 2000 OGL 1.0? Not for existing users and products, obviously, but I mean can they even prevent any newcomers from adopting the OGL 1.0 contents under the OGL 1.0 license terms?

 

[copebot]

In conclusion, don't sign this. They want you to think that their content is protected, but it's generally not, you can just walk in and take it and use it for free as long as you do not associate with their trademarks and do not blatantly copy text, images, sculptures, or other form layouts in a substantially identical manner.

Thanks for the breakdown, that indemnification bit should be enough to scare the pants off anyone. Just as an academic curiosity regarding 1.1 "superseding" prior agreements and in relation to your earlier reply, though, can WotC legally revoke the 2000 OGL 1.0? Not for existing users and products, obviously, but I mean can they even prevent any newcomers from adopting the OGL 1.0 contents under the OGL 1.0 license terms?

Yes they can revoke the unaccepted offer. When this is formally sent out, you will not be able to accept the old OGL anymore. However, if you accepted the old OGL and have products that are still out on the old OGL, they cannot wriggle out of that contract unless those people who were covered under the old 2000 OGL accept the new OGL. You cannot force someone to make an offer irrevocable indefinitely.

To your question, yes they can revoke the offer for the same reason that it could be in any other context. When I wrote the old post I had not seen the leaked text of the new OGL offer.

From the company's perspective, you can see why they might not want to be bound by all these contracts that can be accepted by anyone at any time. In my opinion, the old OGL was also sort of stupid, because all it did was create an association between parties that did not really give anyone any new legal benefits that they did not already have other than just being allowed to state the fact that it was licensed under the OGL. It dates from a time in which that sort of thing was trendy and seemed to be a reasonable alternative to either turning a blind eye to piracy or just continually litigating against your best customers and fans. They wanted to encourage people to stay in the ecosystem and to feel comfortable creating content (for free) for their system. The current adaptation seems to be a "wait, we need to be paid some time" realization, as well as reflecting a desire to exercise political and creative control over the output of the community. They see people getting rich off of "their system" and that they are not making enough money off of it. They also know that there are a lot of saps out there who will sign away their rights for nothing.

I don't think it will work well for the company because it creates a massive incentive to DIS-associate from WOTC trademarks, to create new systems, or to just get the best of both worlds by making content that is "compatible with" various systems. I think WOTC's big strategic issue is that not much of what they make is really broadly protectable. If they can get enough people to sign contracts with them, then they get to wield those contracts as brickbats, but their actual IP rights are very thin. Nothing is really stopping you from making your own floating eyeball dude. They do not own the rights to the concept of a gnoll or another type of dog-man. They do not own the rights to a 20 sided die and so on and so forth.

So, for example, if you are a big enough personality in tabletop to raise a million dollars off of a Kickstarter for your projects, you have your own marketing channels, and your own distribution setup, why are you ever going to kick another 20%+ on top of the other fees you are already paying to WOTC for doing fuck-all, but giving up editorial control and incurring substantial compliance costs on top of that?

 

[rojay]

I skimmed the alleged draft of the new OGL here. http://ogl.battlezoo.com/

Really, a lot of this is more about trademark than it is about copyright. The Comments under VII (termination) look to be written by non-attorneys and make sense in the context of the recent lawsuit against TSR. If you are using WOTC's trademarks under license to market the work, they will at least try to sue you for diluting those marks and to force you to stop using the OGL if you were using the OGL. What the new OGL does not really do is effectively prohibit anyone from using rules content or uncopyrightable conceptual content (e.g. the idea of a Bixie or its stat block).

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

In conclusion, don't sign this. They want you to think that their content is protected, but it's generally not, you can just walk in and take it and use it for free as long as you do not associate with their trademarks and do not blatantly copy text, images, sculptures, or other form layouts in a substantially identical manner.

Excellent write up and thank you for linking to the agreement. I took a quick look at it and a few things leapt out at me:

First, the OGL does not apply to anything but "roleplaying games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes. You may engage in these activities only to the extent allowed under the Wizards of the Coast Fan Content Policy or separately agreed between You and Us."

Meaning the new OGL isn't applicable to any of the games we discuss here. Paizo, Pierre and anyone else making games based on the SRD will have to cut a deal with WotC going forward. The agreement mentions that it will come online on 1/13/23, but it's clearly still a draft so who knows when it will drop? If you're only interested in how this is going to affect computer games, then what's below isn't all that relevant unless they come out with a similar license for computer games.

Under "Royalties" in section VII, it says, "If, and only if, You are generating a significant amount of money (over $750,000 per year across all Licensed Works) from Your Licensed Works, The revenue You make from Your Licensed Works in excess of $750,000 in a single calendar year is considered “Qualifying Revenue” and You are responsible for paying Us 20% or 25% of that Qualifying Revenue..."

I've read some commentary that suggests WotC would demand 20-25% royalties on all income if the creator grosses over $750,000/year. That isn't what the language says; it defines "qualifying revenue" as "in excess" of $750,000. That's made clear in the comment: "We want to be crystal clear about this. Royalties are due only on revenue above $750,000. If You make $750,001 on Licensed Works in 2024, You will owe Us a grand total of 25 cents..."

The indemnity provision isn't all that unusual: "If We are on the receiving end of any legal claims, fees, expenses, or penalties related to Your Licensed Works, You are responsible for paying all Our costs, including attorneys’ fees, costs of court, and any judgments or settlements." That's pretty typical. The complicated parts are the "related to your work" and more importantly the idea that a creator might be responsible for "settlements" that WotC enters.

"Related to your work" is the sort of term that people litigate over because it's sort of vague. Lawyers love vague contract terms.

The "settlements" thing is problematic because of the way these things work. The main reason WotC would get sued for a creator's work is because they have "deep pockets." If some random creator who makes $10,000 a year does something wrong, they probably won't be able to pay a judgment. So a lawyer looking to file suit will try to find someone who is related to the "wrong" act that can actually pay; i.e. WotC.

If WotC gets sued because Joe Smith used trademarked Star Wars material in an otherwise OGL 1.1 licensed work, they have the right under the agreement to throw $10,000 to the plaintiff to make the suit go away. They may have an incentive to do that because it would almost certainly be cheaper than to pay their lawyers to fight about it in court, and they can then demand the creator reimburse them.

The problem is that it's entirely up to WotC whether to do this. If it's a bullshit legal claim that the creator wants to defend, WotC could still run the numbers and realize that paying $10,000 would be a lot cheaper than the legal fees involved in defending it. This is also not all that unusual in my experience, but my experience is limited and I've only handled one intellectual property case.

I still don't get the "Other Works" provision, specifically "B. You own the new and original content You create. You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose." I don't see how you can read that to mean anything other than if a creator makes something that turns out to be successful, WotC can not only build on that work with new content they create; they can take the creator's work and sell it without paying the creator a royalty.

Bottom line is that this is not a great move on WotC's part, and I wouldn't recommend anyone sign it, but we'll have to see what they do with computer games and other media.

Finally

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

Do you think the cases you mention may be why they want creators to notify/register their works - to get the creator to expressly agree to the new license?

 

[Spectacle]

My understanding is that they are using the OGL, but with some kind of special official recognition from WOTC (which may have no legal meaning).

Not quite. Solasta uses the System Reference Document (SRD) which has until now also been made available under the OGL. But apparently Solasta devs made a separate deal with WotC to use the SRD for their game. I suspect that this was because it's not 100% clear that a game like solasta is allowed under the OGL, and neither side was keen on testing the matter in court.

 

[mondblut]

Can he adapt a retroclonr? What will jappen to retroclones?

Retroclones copy 1st ed AD&D, no? What do they have to do with OGL based off Hasbros & Homos 1st ("3rd") edition onwards?

 

[copebot]

I skimmed the alleged draft of the new OGL here. http://ogl.battlezoo.com/

Really, a lot of this is more about trademark than it is about copyright. The Comments under VII (termination) look to be written by non-attorneys and make sense in the context of the recent lawsuit against TSR. If you are using WOTC's trademarks under license to market the work, they will at least try to sue you for diluting those marks and to force you to stop using the OGL if you were using the OGL. What the new OGL does not really do is effectively prohibit anyone from using rules content or uncopyrightable conceptual content (e.g. the idea of a Bixie or its stat block).

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

In conclusion, don't sign this. They want you to think that their content is protected, but it's generally not, you can just walk in and take it and use it for free as long as you do not associate with their trademarks and do not blatantly copy text, images, sculptures, or other form layouts in a substantially identical manner.

Excellent write up and thank you for linking to the agreement. I took a quick look at it and a few things leapt out at me:

First, the OGL does not apply to anything but "roleplaying games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes. You may engage in these activities only to the extent allowed under the Wizards of the Coast Fan Content Policy or separately agreed between You and Us."

Meaning the new OGL isn't applicable to any of the games we discuss here. Paizo, Pierre and anyone else making games based on the SRD will have to cut a deal with WotC going forward. The agreement mentions that it will come online on 1/13/23, but it's clearly still a draft so who knows when it will drop? If you're only interested in how this is going to affect computer games, then what's below isn't all that relevant unless they come out with a similar license for computer games.

Under "Royalties" in section VII, it says, "If, and only if, You are generating a significant amount of money (over $750,000 per year across all Licensed Works) from Your Licensed Works, The revenue You make from Your Licensed Works in excess of $750,000 in a single calendar year is considered “Qualifying Revenue” and You are responsible for paying Us 20% or 25% of that Qualifying Revenue..."

I've read some commentary that suggests WotC would demand 20-25% royalties on all income if the creator grosses over $750,000/year. That isn't what the language says; it defines "qualifying revenue" as "in excess" of $750,000. That's made clear in the comment: "We want to be crystal clear about this. Royalties are due only on revenue above $750,000. If You make $750,001 on Licensed Works in 2024, You will owe Us a grand total of 25 cents..."

The indemnity provision isn't all that unusual: "If We are on the receiving end of any legal claims, fees, expenses, or penalties related to Your Licensed Works, You are responsible for paying all Our costs, including attorneys’ fees, costs of court, and any judgments or settlements." That's pretty typical. The complicated parts are the "related to your work" and more importantly the idea that a creator might be responsible for "settlements" that WotC enters.

"Related to your work" is the sort of term that people litigate over because it's sort of vague. Lawyers love vague contract terms.

The "settlements" thing is problematic because of the way these things work. The main reason WotC would get sued for a creator's work is because they have "deep pockets." If some random creator who makes $10,000 a year does something wrong, they probably won't be able to pay a judgment. So a lawyer looking to file suit will try to find someone who is related to the "wrong" act that can actually pay; i.e. WotC.

If WotC gets sued because Joe Smith used trademarked Star Wars material in an otherwise OGL 1.1 licensed work, they have the right under the agreement to throw $10,000 to the plaintiff to make the suit go away. They may have an incentive to do that because it would almost certainly be cheaper than to pay their lawyers to fight about it in court, and they can then demand the creator reimburse them.

The problem is that it's entirely up to WotC whether to do this. If it's a bullshit legal claim that the creator wants to defend, WotC could still run the numbers and realize that paying $10,000 would be a lot cheaper than the legal fees involved in defending it. This is also not all that unusual in my experience, but my experience is limited and I've only handled one intellectual property case.

I still don't get the "Other Works" provision, specifically "B. You own the new and original content You create. You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose." I don't see how you can read that to mean anything other than if a creator makes something that turns out to be successful, WotC can not only build on that work with new content they create; they can take the creator's work and sell it without paying the creator a royalty.

Bottom line is that this is not a great move on WotC's part, and I wouldn't recommend anyone sign it, but we'll have to see what they do with computer games and other media.

Finally

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

Do you think the cases you mention may be why they want creators to notify/register their works - to get the creator to expressly agree to the new license?

I don't think it's odd as an indemnification clause, but I think it creates a lot of problems in the context of this kind of content, and your example is a good one. That kind of settlement demand is not that unusual either for copyright shakedown firms. They have an incentive then to settle and stick you with a bill even if it would have been very possible to fight the case either win or get a better settlement.

Yes, your interpretation of "Other Works" is similar to mine. It reads to me like the irrevocable licensing clauses in certain other online platforms designed to protect the platforms from copyright claims for material that you upload. So, right, they have the right to use YOUR content with no licensing fee in any way that they want. So, let's say you have a successful adventure module that sells 50,000 copies. They can just make their own identical version with the same title and pay you nothing, because you already gave them permission to do that. Even in a more minor context, they could take that module, translate it into German, and sell the German edition without paying you anything.

So... it'd be bananas to give them that kind of power without getting a lot in return.

The only way it really impacts CRPGs is that it just announces that there's no more using the OGL or officially using the SRD (unless grandfathered in because they accepted it when it was still available), but that this new licensing agreement is not for anything but tabletop products.

Another thing that I've seen from legal commentators is the argument that it's murky as to whether or not game mechanics can be copyrighted, and that legal uncertainty benefits WOTC. I just don't agree that it's that murky when you get down to the fundamentals of copyright law. I also disagree with the notion that it is that risky. WOTC barely shows up in the copyright or trademark dockets. They are just not that litigious in IP. I really doubt that they are eager to create bad precedent for themselves. The nature of this draft licensing agreement shows also that they don't really have a strong leg to stand on with respect to copyright. What they do have is a strong and famous set of trademarks that many people are keen to associate themselves with, and that is really what kind of relationship that they are offering.

 

[kangaxx]

Correct me if I`m wrong, but game rules can`t be patented. Is this truth?

Obligatory I'm not a lawyer, but:

I have been told, multiple times from different people, that gameplay mechanics cannot be copyrighted. What this means is that essentially, someone could copy dnd 5e (or a more worthy edition) wholesale and get away with it.

What is copyrighted however, is very important. That is, the specific text of those gameplay mechanics, spells, monster names, etc.

If someone wanted to go through the trouble of copying 5e but change 100% of the text, then theoretically that's legal.

However, the reasons for doing that (especially when the OGL was "safe") were few and far between, since you might still get sued anyways, and others will deride you for so blatantly "stealing" a system.

That's why most either went with the OGL or crafted their own systems from the ground up.

I look forward to casting Paste on my entire party before destroying the enemy with a few Ragic Rissiles.

 

[Gargaune]

Yes they can revoke the unaccepted offer. When this is formally sent out, you will not be able to accept the old OGL anymore. However, if you accepted the old OGL and have products that are still out on the old OGL, they cannot wriggle out of that contract unless those people who were covered under the old 2000 OGL accept the new OGL. You cannot force someone to make an offer irrevocable indefinitely.

Thanks for the clarification. I wasn't sure whether the OGL worked as an open contract offer or some sort of quasi-public domain material, that clears it up.

 

[rojay]

I skimmed the alleged draft of the new OGL here. http://ogl.battlezoo.com/

Really, a lot of this is more about trademark than it is about copyright. The Comments under VII (termination) look to be written by non-attorneys and make sense in the context of the recent lawsuit against TSR. If you are using WOTC's trademarks under license to market the work, they will at least try to sue you for diluting those marks and to force you to stop using the OGL if you were using the OGL. What the new OGL does not really do is effectively prohibit anyone from using rules content or uncopyrightable conceptual content (e.g. the idea of a Bixie or its stat block).

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

In conclusion, don't sign this. They want you to think that their content is protected, but it's generally not, you can just walk in and take it and use it for free as long as you do not associate with their trademarks and do not blatantly copy text, images, sculptures, or other form layouts in a substantially identical manner.

Excellent write up and thank you for linking to the agreement. I took a quick look at it and a few things leapt out at me:

First, the OGL does not apply to anything but "roleplaying games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes. You may engage in these activities only to the extent allowed under the Wizards of the Coast Fan Content Policy or separately agreed between You and Us."

Meaning the new OGL isn't applicable to any of the games we discuss here. Paizo, Pierre and anyone else making games based on the SRD will have to cut a deal with WotC going forward. The agreement mentions that it will come online on 1/13/23, but it's clearly still a draft so who knows when it will drop? If you're only interested in how this is going to affect computer games, then what's below isn't all that relevant unless they come out with a similar license for computer games.

Under "Royalties" in section VII, it says, "If, and only if, You are generating a significant amount of money (over $750,000 per year across all Licensed Works) from Your Licensed Works, The revenue You make from Your Licensed Works in excess of $750,000 in a single calendar year is considered “Qualifying Revenue” and You are responsible for paying Us 20% or 25% of that Qualifying Revenue..."

I've read some commentary that suggests WotC would demand 20-25% royalties on all income if the creator grosses over $750,000/year. That isn't what the language says; it defines "qualifying revenue" as "in excess" of $750,000. That's made clear in the comment: "We want to be crystal clear about this. Royalties are due only on revenue above $750,000. If You make $750,001 on Licensed Works in 2024, You will owe Us a grand total of 25 cents..."

The indemnity provision isn't all that unusual: "If We are on the receiving end of any legal claims, fees, expenses, or penalties related to Your Licensed Works, You are responsible for paying all Our costs, including attorneys’ fees, costs of court, and any judgments or settlements." That's pretty typical. The complicated parts are the "related to your work" and more importantly the idea that a creator might be responsible for "settlements" that WotC enters.

"Related to your work" is the sort of term that people litigate over because it's sort of vague. Lawyers love vague contract terms.

The "settlements" thing is problematic because of the way these things work. The main reason WotC would get sued for a creator's work is because they have "deep pockets." If some random creator who makes $10,000 a year does something wrong, they probably won't be able to pay a judgment. So a lawyer looking to file suit will try to find someone who is related to the "wrong" act that can actually pay; i.e. WotC.

If WotC gets sued because Joe Smith used trademarked Star Wars material in an otherwise OGL 1.1 licensed work, they have the right under the agreement to throw $10,000 to the plaintiff to make the suit go away. They may have an incentive to do that because it would almost certainly be cheaper than to pay their lawyers to fight about it in court, and they can then demand the creator reimburse them.

The problem is that it's entirely up to WotC whether to do this. If it's a bullshit legal claim that the creator wants to defend, WotC could still run the numbers and realize that paying $10,000 would be a lot cheaper than the legal fees involved in defending it. This is also not all that unusual in my experience, but my experience is limited and I've only handled one intellectual property case.

I still don't get the "Other Works" provision, specifically "B. You own the new and original content You create. You agree to give Us a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose." I don't see how you can read that to mean anything other than if a creator makes something that turns out to be successful, WotC can not only build on that work with new content they create; they can take the creator's work and sell it without paying the creator a royalty.

Bottom line is that this is not a great move on WotC's part, and I wouldn't recommend anyone sign it, but we'll have to see what they do with computer games and other media.

Finally

1.1 X. A. which talks about modification describes a method of modification that may no longer be valid due to changes in the case law on this topic of electronic contracts. Just posting an updated version on a website with no thought to consideration may no longer be valid for a contract of this type. Such modifications may not be enforceable, but it doesn't stop many big companies from trying to enforce those modifications in the interim while courts catch up.

Do you think the cases you mention may be why they want creators to notify/register their works - to get the creator to expressly agree to the new license?

Another thing that I've seen from legal commentators is the argument that it's murky as to whether or not game mechanics can be copyrighted, and that legal uncertainty benefits WOTC. I just don't agree that it's that murky when you get down to the fundamentals of copyright law. I also disagree with the notion that it is that risky. WOTC barely shows up in the copyright or trademark dockets. They are just not that litigious in IP. I really doubt that they are eager to create bad precedent for themselves. The nature of this draft licensing agreement shows also that they don't really have a strong leg to stand on with respect to copyright. What they do have is a strong and famous set of trademarks that many people are keen to associate themselves with, and that is really what kind of relationship that they are offering.

I thought that was the case on things like mechanics, but it's not my area. It's clearly yours, though, and the fact that they're not suing people is good news. Reading the whole thing in context with comments makes it seem less sinister, though still nothing I'd advise anyone to sign.

 

[Taka-Haradin puolipeikko]

This guy is a legend :D

 

[Abu Antar]

I will answer your question.

BOOM!

 

[copebot]

What's interesting about this whole controversy from an IP perspective (it's fundamentally not that interesting for most gamers) is that the controversy arose from an attempt to apply the licensing arrangements for open-source software to tabletop RPGs. It's implicit in that concept that software is analogous to tabletop rulesets when it comes to copyright. Paizo in their latest statement even float having the Linux Foundation administer their OpenRPG licensing agreement. WOTC similarly is being driven to alter the old arrangement in part because they want to turn their company from a publishing company into a Software as a Service company (because they think it'll make more money).

However, tabletop rules are not software code. Open source licensing makes sense in software because generally speaking the code has to be the same everywhere for it to function properly. An open source library needs to be the same thing every time the library is called for it to function. While tabletop rules can be expressed in code, they are not themselves software code, and are not treated by the law in the same way as code is. So it does not really make that much sense to treat it as if it were software from a copyright and copyright licensing perspective. Speaking very generally, code only will function if has the exact same expression in every context. Game rules are not the same because you can get the same or similar function from them even with different expressions of the same rules.

So, right, if I submitted a table of values to the copyright office for registration, the agent at the other end would be crystal clear about what is actually being protected -- the specific expression of the table and not the values that the table contains. This sort of issue comes up frequently in areas totally unrelated to gaming as companies both large and small seek to stretch their rights beyond what the law will actually protect. This is a natural impulse that is universal to businesses of all sizes. Think of it in the context of something like physics textbooks. Every physics textbook will have the same substance specific heat tables, basically. The content of those tables is not protectable. If one textbook manufacturer copies everything about the table from another manufacturer, a court could but would not necessarily be obliged to find that the copying was enough to be infringement. But there might be enough to be case between them.

The understanding that I would prefer to see at least in the US is one in which it's generally understood that game rules and concepts cannot be subject to copyright. Under the law as it exists now, I don't think anyone has to sign anything to be allowed to use any ruleset that they want to. Where it gets tricky is in how to label those rules or to create associations. Some lawyers would also make arguments that certain ways of expressing rules create an implicit association with the work and trademarks of other companies. I don't think that's a good argument because federal trademark law really looks for unauthorized reproductions released with specific trademarks or marks that have been subtly altered in a way that is likely to cause and/or did in fact cause customer confusion.

In other parts of trademark law, it is fair use to use another trademark in a comparative or competitive fashion within certain restrictions. So, you can make replacement filters for many vacuum cleaner brands, for example, and put the vacuum cleaner brands that it's compatible with on the packaging without subjecting yourself to trademark infringement claims (although it does not stop companies from trying or threatening to bring them). The same principle should operate for RPG system compatibility statements without any contractual entanglements whatsoever. I have a personal bias against the way that adhesion contracts like these kinds of licensing agreements are handled in the US and I think the law is going to change a lot on that topic soon, so maybe my analysis is just colored by that, which should be weighed against the reality that many publishers both large and small have happily operated under these kinds of open contracts for a couple decades now.

I think for people who want to be free of the creative and ideological interference of companies like Wizards and Paizo, it's better to never be contractually connected to them or to their friends in the first place. Extending opportunities for ideological control and meddling is expressly one of the core motivations of WOTC in altering its OGL, and anyone familiar with Paizo knows that it's on the same ideological page.

 

[RPK]

They've blinked and seem to be giving in. Hopefully this will be a good thing, but the damage to their reputation is, imo, already done. Nevermind the bs about there only having been "drafts" so far and all that.

https://www.dndbeyond.com/posts/1423-an-update-on-the-open-game-license-ogl

 

[KeighnMcDeath]

Sure....
Microsoft/Amazon leader to head WOTC

Hasbro announced on Thursday morning that it has appointed Cynthia W. Williams as the new president of its Wizards of the Coast and Digital Gaming division.

Spoiler