A conversation about the OGL and presence of Hasbro / WOTC at Gen Con 2023
Posted by sgt engee

Hi all, 

I skimmed the other forum threads and didn't see any discussion about the D&D / Wizards of the Coasts' Open Game License (OGL) drama that is currently being covered by multiple media outlets, TTRPG companies, and TTRPG creators in general. Concerns I have as a consumer, game master, and professional library worker who is trying to build up his library's TTRPG selection and community, I will post below, but one thing I'd like to see the position/stance of Gen Con regarding this situation and what will Gen Con as a company/organization be doing in light of events unfolding as they currently are?

With WOTC trying very hard to throw away the old OGL and make one that is designed to pull more money into their pockets and out of the smaller groups of design teams and fledgling homebrew content makers, I really question the need for them to be at Gen Con. They have a large presence, and I'm sure they contribute no small financial part to have their presence there given how much small indie vendors have to pay to have a table and two chairs on the vendor room floor for all 4 days of Gen Con. However, we as a community, and in turn Gen Con, should take a longer hard look at the situation that is unfolding and have a conversation here about it. 

Here is a link to the post on D&D Beyond with a link to a survey for feedback for them: 

https://www.dndbeyond.com/posts/1432-starting-the-ogl-playtest 

I have not read the entire new draft OGL yet, and more importantly, I am not a lawyer. However, given the reaction from the community, this new "draft" OGL still doesn't appear satisfy concerns among the community. What it has done is generate a large amount of uncertainty. One small indie group I supported picked up a bundle from for my library at Gen Con 2022 was recently working on a TTRPG project with the funds raised going to charity. Due to the uncertainty around this, they have had to postpone it. This is just one of many examples going on right now. You can read Paizo's response on their blog and more information about what they are doing for the TTRPG.

My personal opinion: 

From a personal standpoint, as a consumer as a player and GM this is awful. It looks like WOTC and Hasbro are throwing away over two decades of good will into a large dumpster fire, all because someone on a corporate or high management level wants to generate more revenue for their company. I understand that they are company not a charity, but as many have pointed out, despite not doing so well with Magic the Gathering recently from a financial standpoint, they did very well with D&D. However, the desire to reach for more income to appease stockholders and/or other purely "how can we make more money" reasons, has irreparably damaged their public image and trust with us as gamers. To say nothing of how this is going to absolutely KILL so many in progress ideas and projects in the crib at this particular moment in time is absurd. I don't plan on purchasing any more first party/partnered WOTC content until this has been resolved to a point such that creators can continue to create for a living without having to pay royalties to WOTC.

As a library worker, this is also awful. Libraries are one of those last few bastions of places you can go to not have to spend money and get a service for free. One of these services I have been pushing to get offered at my library the last year or so has been to run TTRPGs. With this push, we now have the current set of books for D&D (DMG, PHB, and MM), Pathfinder, Path of the Planebreaker, Benji's Guide to Rentooki Island, and a couple other small indie ones I can't think of off the top of my head that I picked up in person from Gen Con 2022. Not only could staff run programs where we have a staff member run a session as a GM, but we could also have a session about how to create your own TTRPG. With D&D being a household name nowadays, this seemed like the natural starting place. However, with this latest development, this is not the case any longer with D&D. Any creative programs or workshops we put on will be using other systems that are open, in support of creator(s), and not liable to open themselves, or us as a public library, up to legal liability.

Posted by gib_rebeg

You're, a bit late on this.

Hasbro has already waved the white flag. The OGL will remain unchanged for anyone who used the OGL 1.0

The driving force behind this is the fact Wizards of the Coast produces a staggering 72% of Hasbro's profit. This was the driving force behind the change in the OGL. Think about that. Hasbro owns Transformers, GI Joe, Power Rangers, Monopoly, all of Kenner, Milton Bradley and Parker Brothers. Yet WotC is producing 72% of their profits.

In a separate article on D&D beyond,  ,they announced their pull back on this issue. Claiming the whole reason for the change was to protect players from "hateful and discriminatory products,"

https://www.dndbeyond.com/posts/1423-an-update-on-the-open-game-license-ogl?fbclid=IwAR32S8tNdMPDOvaYqneF8Cgzfu7YOu2rzinMTEyZW-_B1aLUDpZvj_uy7yA

With their backtrack, the change now is. Content already released under the original OGL will "remain unaffected." Hasbro confirms that OGL 1.1 will not contain any royalty structure. It also will not include the license-back provision.

In a separate posting they state this.Any changes to the OGL will have no impact on at least these creative efforts:


  • Your video content. Whether you are a commentator, streamer, podcaster, liveplay cast member, or other video creator on platforms like YouTube and Twitch and TikTok, you have always been covered by the Wizards Fan Content Policy. The OGL doesn’t (and won’t) touch any of this.
  • Your accessories for your owned content. No changes to the OGL will affect your ability to sell minis, novels, apparel, dice, and other items related to your creations, characters, and worlds.
  • Non-published works, for instance contracted services. You use the OGL if you want to publish your works that reference fifth edition content through the SRD. That means commissioned work, paid DM services, consulting, and so on aren’t affected by the OGL.
  • VTT content. Any updates to the OGL will still allow any creator to publish content on VTTs and will still allow VTT publishers to use OGL content on their platform.
  • DMs Guild content. The content you release on DMs Guild is published under a Community Content Agreement with Dungeon Masters Guild. This is not changing.
  • Your OGL 1.0a content. Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a.
  • Your revenue. There will be no royalty or financial reporting requirements.
  • Your ownership of your content. You will continue to own your content with no license-back requirements.

    What I've read and it may have changed again, WotC is looking at charging for access to D&D Beyond on a monthly access fee. One I've read it may be as high as $30/month.

    This is the only change they will do now to increase revenue. 

 

Posted by sgt engee

The new OGL is still very legally vague in many areas, written that way I'm sure by their lawyers, to give them as much latitude as possible. The new OGL has many holes in it that are open to individual interpretation and are very much written in favor of WOTC. Examples: 

I'm underlining and boldening areas I find concerning

Section 3: 

"WHAT YOU OWN. Your Licensed Works are yours. They may not be copied or used without your permission. You acknowledge that we and our licensees, as content creators ourselves, might independently come up with content similar to something you create. If you have a claim that we breached this provision, or that one of our licensees did in connection with content they licensed from us:

(a) Any such claim will be brought only as a lawsuit for breach of contract, and only for money damages. You expressly agree that money damages are an adequate remedy for such a breach, and that you will not seek or be entitled to injunctive relief.

(b) In any such lawsuit, you must show that we knowingly and intentionally copied your Licensed Work. Access and substantial similarity will not be enough to prove a breach of this Section 3."

The problems I have here are: 

1) You agree that money is the sole solution and WOTC are not compelled to cease production of the breaching content even IF they are found in the wrong. Granted, a judge or jury might decide this part of the agreement to be non-enforceable, but that is that takes time and lawyers, which means lots of money. Money that many creators don't have.

2) You agree to not seek before a court injunctive relief, meaning that if you make a strong argument WOTC is in fact damaging you / your company by continuing with said breach, WOTC is not required to stop in the interim from what they are doing until a judgement / verdict is reached. This IMO is also very dumb. If you as a creator broke copyright law and copied WOTC D&D materials and sell it as your own, WOTC can take you to court, demand injunctive relief, and will likely get it. We see this all the time on YouTube, Kickstarter, and other public spaces where major companies use the DMCA and other legal tools at their disposal to temporarily suppress creators in legally gray areas to superb effect. While WOTC may not be doing this actively right now, they are a company. And companies can change management and CEOs relatively quickly, and there is nothing to stop the next group of managers from enforcing stuff like this.

3) The burden is solely on you, the creator, to show WOTC copied content. Not being a lawyer, take my legal point with a grain of salt. If at WOTC, there was in fact an official email or other documentation at the company instructing employees to copy your content, WOTC isn't going to voluntarily disclose the documentation. They would also fight during the discovery process at the court level. Likely arguing something akin to "Judge, if we let Bob's lawyers go through our emails it will put at risk our billion dollar company's trade secrets. Our company makes up 72% of our parent company's profits. If Bob's lawyers are unprofessional in the handling of our documents and emails, it could ruin our company!". Given how there are more conservative judges in courts now as well as how much more friendly to corporations the American legal system is compared to that of the EU, they would likely rule in WOTC's favor and the creator instantly loses.

Section 6: 

f) No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.

This is bad in so many ways. Companies don't care about what is or isn't hateful or discriminatory content. They care about your money. If enough customers stand up and say, "we don't like X campaign because of Y content and that it is bad taste because of Z! Make it go away!" WOTC, fearful of losing money, simply has to declare you in breach of this OGL and bye bye with all that hard work.

This clause was also written SUPER vaguely to allow them as much legal wiggle room as possible. This is also where the court of public opinion comes into play, and this is WOTC attempting to legally give themselves as much wiggle room and the appearance of being the "good guy" in the court of public opinion. Personally, I don't support content that is any of this stuff, with the caveat that it is an actual real live person that is being potentially harmed/victimized. I don't support content that has been created with the included or sole purpose, to harm or seek to harm or upset real living people because of an alignment or trait they have. Be it gender, gender identity, race, origin, religion, sexual orientation, etc. I think most people are awesome and the world would be a better place if we all were just nice to each other. If I create content that isn't harming a real live actual person, but upsets them because they don't agree with it morally, religiously, philosophically, etc., well I can't help you there, and in the U.S. we as citizens and creators have a constitutional right to freely express ourselves, so long as we aren't infringing on another person's rights. Really the best thing for that person to do, is simply not consume that content. Just like I don't like to drink coffee because it tastes awful to me. But you don't see me going out trying to sue every Starbucks or small coffee shop that opens up. For WOTC to be the sole judge here is again, really awful. All it takes is someone with a view that isn't open and forward thinking to be in charge and we can see what can happen. Look at what has happened, and is still happening at Twitter.

I would post some others, but I don't want to do a deeper dive down this rabbit hole. 

Honestly, IMO, just leave the current OGL in place as is. It's not hurting anyone. The whole thing about "hateful and discriminatory products," is BS. The community is having fun and creators are prospering. Hasbro/WOTC are prospering financially. There are literally ZERO reasons to adjust it unless you want more control and/or money.

Posted by quarex

I maintain some executive finally had someone explain that Paizo was making big bucks off Hasbro IP and that there was nothing they could do about it and the executive said "I don't care how, just make that stop" and that was the basis for the entire rewrite 

Posted by sgt engee

Well, it looks like they completely backed off yesterday afternoon. Will wait to see where the dust finally settles in the coming days, but this looks like a step in the right direction. 

https://www.dndbeyond.com/posts/1439-ogl-1-0a-creative-commons 

In even better news, Paizo looks to be continuing ahead on their pursuit of ORC. Man, that's a silly sentence and I'm sure ORC will be a running gag for a long while assuming it comes to fruition. 

https://twitter.com/paizo/status/1619101144940175361?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet 

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