OGL trouble

Like all of us, I’ve been paying close attention to the OGL revisions. I am not a lawyer, intellectual property or otherwise, but I have studied media industries, and so have some thoughts on all this. I see three basic questions:

• What rights could you defend in court?
• How likely are you to have to defend those rights?
• How will the community and industry respond?

Let’s take them in turn.

What rights could you defend in court?

Note that I did not say what rights do you have. I don’t think that is a particularly relevant question since rights are not self-enforcing. A lot of people have been saying things along the lines of “you never needed the OGL because you can’t copyright game mechanics.” This may be true. Or it may be like sovereign citizens saying you don’t have to pay income tax because the 16th amendment wasn’t printed in the right color of ink or something. But the thing is, even if it is true that the OGL is superfluous because you can’t copyright game mechanics, it’s not true in any way that counts until you spend hundreds of thousands of dollars in legal fees proving that it’s true. If you look prior to the OGL at the history of TSR litigation, it sure looks like people got sued over game mechanics. And if you don’t have the money and nothing better to spend it on than defending yourself in court, then for practical purposes it’s not true that you can’t copyright mechanics. The OGL was always just as important as a promise that Wizards would agree you had a right to use d20 mechanics, the magic missile spell description, and the owlbear stat block as it was as the actual allocation of rights to these concepts.

Here are my hunches:

• Wizards’ position that they can void the OGL 1.0 because what was “authorized” can be deauthorized is shaky, especially given all the evidence from old ancillary material that when they created it two decades ago, they intended it to be irrevocable.
• An abstract mechanic like “roll a twenty side die, add the attacker’s bonuses, and compare to the target’s defense score” can be used by anyone, with or without an OGL. This is especially true if you rename the mechanic as, for instance, the Kevin Crawford “without number” games have renamed “feats” to “foci.”
• A much more specific aspect of the game like there is a spell called “cone of cold” and it is a 5th level spell for wizards / magic users could be Wizards’ IP unless they allocate it via an OGL or other license.

So basically, I think the community is on strong ground to assert the OGL 1.0a can’t be revoked but weak ground to argue they never needed the OGL in the first place, at least for games that are basically the same as D&D 3e like Pathfinder. Those are my hunches. What I know is that my hunches and folk wisdom are just hunches and folk wisdom, and so are yours. As The Alexandrian suggests in his excellent thoughts on this matter, talk to a lawyer. If you happen to be an IP lawyer yourself, then you probably have a better idea than I do of what would win out in court, but ultimately there’s no telling until it goes to trial and appeal, which means a lot of time and money.

But presumably you don’t have a lot of time and money, which means what rights you could defend in court are less relevant than …

How likely are you to have to defend those rights?

How likely are you to have to actively defend your rights is really a question of what is Wizards likely to sue you over.

The main reason Wizards would sue you is if you threaten their business model. A general trend in entertainment and software is a shift from selling products to selling subscriptions. It’s all about recurring payments. That’s why Microsoft now sells you a 365 subscription instead of a copy of MS Office and it’s why the movie studios are so aggressive about streaming (or at least they were until interest rates shot up). It’s all about that $100 a year or $10/month. The closest that RPGs traditionally get to this is you sell the corebook and then you sell supplements. And since there are more players than GMs, ideally you sell player-facing supplements which is why every year since 2017, Wizards has published a D&D 5e book with a title like Bigby’s Self-Pleasuring Fist that provides rules for playing as a gelatinous cube who is a college of the flatulist bard. But while everyone bought the corebooks, eventually half the players shrug at picking up Robilar’s Grimoire of Miscellany and only a few GMs buy the latest sensitivity-reader all stars anthology of ADA-compliant dungeons. And besides, the books are only $50 retail and $25 on Amazon so even selling one a year per player starts to feel like inviting a shareholder lawsuit against management for under-monetizing the brand.

How much better if you could charge a recurring payment to every player for access to a virtual table top. Tabletop role-playing games as a service, the El Dorado of the gaming industry, awaits Hasbro shareholders. But only if they don’t face competition from rival VTT services that can undercut them on price while still building in tools that support the 5e ruleset which, let’s face it, is nearly identical to the One D&D rules. So if you’re running a VTT that supports the rules set, I think you are nearly certain to be sued. Likewise, I would not bet the farm investing in another Solasta game.

In contrast, if you’re a medium sized publisher, say one who falls above the $50,000 reporting threshold but below the $750,000 royalty threshold, you’re not nearly as much of a threat to this model and so you’re probably less likely to get sued than a VTT operator. But less likely to get sued is not the same thing as certainty against being sued, as it was when you could use OGL 1.0a and that uncertainty matters a lot. Uncertainty is one thing if you’re planning on putting a hundred hours or so of work and maybe a couple hundred dollars in art commissions into something and releasing it either for free or for beer money. In that situation it is very likely that the scope of outcomes ranges from “they leave you alone” to “they send you a cease and desist letter.” That uncertainty is quite another thing if you’re investing your savings or staking full-time or substantial part-time labor into something. Devoting a year of your labor and investing $10,000 of your savings into a heartbreaker was probably never a great idea but it’s an especially bad idea without the protection of a favorable OGL. And investing substantial capital into a VTT is like building a house on land where someone might contest the title. Even if the claim is frivolous, that’s an expensive headache. All this is to say that even if the OGL 1.0a will ultimately be vindicated, Wizards suggesting that it is no longer authorized introduces uncertainty and uncertainty is poison to investment. Which implies the question …

How will the community and industry respond?

This is really two issues, who is likely to fight it and what will people do in the meantime.

Most people simply don’t have the resources to fight for the OGL 1.0a in court, but some do. Maybe Paizo will decide that a 25% royalty on Starfinder is too exorbitant and they don’t want to lose the right to license another video game or a VTT or maybe even making a Netflix series. Maybe Kobold Press decides to fight it out. Maybe Microsoft will buy Solasta and sue to keep it under the old OGL. Maybe Disney will decide it wants to relaunch Knights of the Old republic. (BTW, if Wizards is smart, they’ll negotiate low royalties with these big actors to keep that from happening). In any case, it’s likely to go to court, which will take a few years and a lot of money and likely turn on the meaning of the word “authorized.” If Wizards wins, you can expect an appeal which will include amica curiae from major corporations who rely on open source software like Samsung, Sony, and IBM since open source software would lose all stability of expectations if Wizards can retcon the OGL of D&D 3.5e out of existence.

But like I said, that will take a lot of time and money. In the meantime, what do you play and what do you publish?

Some people, mostly at the beer money tier, will want access to the core D&D normie audience and “product identity” stuff like the Forgotten Realms. I imagine these people will adopt the OGL 1.1 and post to Wizards’ preferred digital marketplace, just as today this same group of people post to DM’s Guild. This is a much tougher quandary for companies whose business is focused on 5e compatible content like Kobold Press. A 25% royalty on anything over $750,000 is a lot and basically means raising the prices of your books from $20 to $27 so you don’t end up losing money on the marginal sale.

If I had the kind of podcast that is theoretically an actual play podcast but where a bunch of improv actors joke about how infrequently they ever roll a die, I’d switch to a different system which would probably be a better fit mechanically. For instance, the obvious move for Dungeons and Daddies is to switch to PbtA or Gumshoe rather than negotiate a royalty with or risk being sued by Wizards. (I say negotiate as OGL 1.1 is only meant to cover books and PDFs with the implication that podcasts are among the things that would have to negotiate a license). Story gaming systems are better suited for podcasts than the relatively crunchy mechanics of D&D anyway.

There is a logic by which medium-sized publishers should adopt the new OGL, just to be safe from infringement litigation that could involve damages, but I’m not so sure. For instance, the OGL 1.1 would be very dangerous for Lamentations of the Flame Princess since OGL 1.1 also contains language to the effect of they can revoke your license if, in their opinion, your work is bigoted and a lot of the community (wrongly in my opinion) holds this opinion of that game. I don’t think Wizards is going to actively police content published under OGL 1.1 (sensitivity readers are, after all, an expense) but I think it’s likely that Wizards would pull the OGL 1.1 license from Lamentations under the slightest pressure and that it is a matter of metaphysical certainty that parts of the community would apply such pressure to the OGL 1.1 content guidelines given that they already do so to DriveThru and Free RPG Day. If I were Raggi, I would switch to publishing system neutral adventures before I’d sign the OGL 1.1.

The OSR retro-clones could be in trouble as they take quite a bit from the 3.5e SRD: the six attributes, spell names, monster names, magic item names, etc. This means trouble for the OSR. The issue is not so much losing access to the rules. B/X is available on DriveThru for cheaper than OSE and while OSE is better organized than B/X, it’s not that much better organized. The problem is it would be harder to publish new content based on those rules. In order for the OSR to really get network externalities, we need to choose a set of mechanics and all produce content for those mechanics. Currently that mechanical lingua franca is B/X, usually under the brand name OSE, but I’m looking at my copy of OSE and it has OGL 1.0a right in it. The second most popular standard in OSR is OD&D (usually branded as S&W), but I’m looking at my copies of S&W and WB:FMAG and both of them have OGL 1.0a in them. And the OSR started with the AD&D standard (branded as OSRIC), which also uses the OGL. So how do we publish new content for those rules? Even if it’s not that big a deal to rely on TSR B/X from DriveThru (or circulate samizdat copies of WB:FMAG), it just got harder to move Dolmenwood from the Patreon draft (which has, guess what, the OGL 1.0a in it) to the Kickstarter finished product many of us are looking forward to. And not just Dolmenwood but the next mega-dungeon, the next hexcrawl, etc.

However, this does not apply to anything like the same extent to NuSR games. Games like Mork Borg and Knave really don’t take anything but the loosest inspiration from D&D.. If I were an intellectual property lawyer, which I am not, I would much rather defend Maze Rats than OSRIC or OSE against a suit from Wizards. It’s easy for Ben Milton to say “you never needed the OGL” because he doesn’t use the SRD’s bestiary or spell list (and lacks the deep pockets to be worth suing). So one solution is for the OSR to migrate from retro-clones to NuSR mechanics, but which NuSR game would be the standard? There are a lot of NuSR games and if the community doesn’t choose one as the default, it will be hard to produce new content and see it circulate widely.

I expect one effect is we’ll see a lot of migration away from content written for retro-clones and towards alternative systems or system neutral material. This will work better for some things than others. Battle maps, dungeon maps, settings, and modules will all be 90% as good if written in a system neutral fashion and I expect we’ll see a lot of these materials written in that way. There are system neutral bestiaries but they generally come with stat blocks for a reason. So we will probably see a mix of system neutral stuff and NuSR stuff, with a snowball effect towards one NuSR game as the new lingua franca over several years.

[Update: one approach may be to publish most of the setting book or dungeon as system neutral with no license and then publish stat blocks and other crunch as a separate free PDF using a non-commercial OGL 1.1 license. This would obviously be inconvenient to both publisher and reader. It also would only work for setting/adventure, not mechanics. For instance, this could work OK-ish for Dolmenwood but not at all for Carcass Crawler.]