Friday, 23 December 2022

Legally Odd: OGL Section 9

Recently, Wizards of the Coast announced that they would be releasing version 1.1 of their famous Open Gaming License, the OGL. What does this mean, and how does the deeply weird Section 9 affect their plans?

The OGL is a legal agreement that WOTC developed in 2000 to encourage third parties to develop content for Dungeons & Dragons. When a gaming text includes it, the open gaming content portions of that document can be republished by other parties, open source style.

Now, two decades later, on the threshold of 6th edition ("One D&D"), WOTC has announced it's overhauling the OGL to clarify their intentions.

Section 9

As I hinted, the most fascinating thing about all of this to me is a particular clause lurking in version 1.1A of the OGL, 'section 9'. It reads as follows:

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

To get the obvious out of the way, WOTC doesn't need anyone's permission to create a new, separate license to release new material under. Section 9 is about creating specific avenues to retroactively change the meaning of the OGL. But what?

The Permissive Interpretation

My first, most literal interpretation of Section 9 is that if you're reading a document released under OGL version X, you can reuse the open gaming content in it under any version of the OGL you like.

I call this the permissive interpretation because it gives maximum choice to a downstream republisher. They're free to use the least restrictive version of the OGL, at their discretion.

The strongest evidence I have that this is WOTC's original intention for the OGL is in this gem, courtesy of Margaret (@EtoEWanders on Twitter):

Q: Can't Wizards of the Coast change the License in a way that I wouldn't like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

This is very much in the spirit of the open source software movement, as it gives WOTC "no take backs." Even so, there's some weird edge cases with it!

Permissive Oddities

This permissive interpretation sounds great when you're thinking of reusing somebody's OGC, but it's pretty lousy at protecting your own. As written, it seems that when WOTC releases a new version of the OGL, suddenly everyone who is considering reusing your open content now has their pick of license versions. This means that WOTC can grant itself or your licensees new rights, just by updating the OGL. Pretty weird!

The situation is especially strange for companies that used the OGL 1.0A to release their own wholly original SRDs. They weren't republishing anything written by WOTC, they just liked the terms of the OGL.. but now WOTC can modify the terms on their behalf!

Free League, for example, released a Year Zero Engine SRD under the OGL 1.0A. Once WOTC releases OGL 1.1, anyone who wants to can suddenly elect to use the YZE SRD under those new terms, terms that Free League has never seen!

What WOTC Thinks

In their Dec 21 blog post, WOTC makes it clear that the whole point of the OGL update is to add new restrictions to the OGL.

The new restrictions:
  • No NFTs
  • OGL only covers print materials and static electronic documents
  • Terms must be explicitly accepted via a web portal
  • OGL products must display a badge
  • Revenue reporting for $50k+ annually
  • Royalties for $750k+ annually
If WOTC believed in the Permissive interpretation, this would all be pointless: in that model, WOTC can't meaningfully add restrictions to the OGL. Anyone who wanted to make NFTs or a video game would simply take WOTC's the new OGL 1.1 content and republish it under the OGL 1.0A, then do whatever they liked.

This makes me think that WOTC has a different, much scarier interpretation of section 9, the Retroactive Interpretation.

The Retroactive Interpretation

There's another way to look at this, which I think would have an even bigger impact. In this view, the OGL is a living document that you agree the WOTC can update from time to time. When they do that, the new terms apply to everyone's use of the OGL, immediately.

In this interpretation, the last half of section 9 simply means that any version of the OGL you copy into your document is an equally valid attestation that you agree to the latest version of the OGL.

Now, the objections to this view are several:

O1: What's the point of a perpetual, royalty free license if they can update it to be a non-perpetual, royalties required license?

Sadly, I think the answer is, "None. OGL 1.0A and Section 9 sucks for publishers that used it."

O2: This is massive overreach!

Yes, probably—but I think it's worth thinking about who WOTC intends to target. They probably aren't hunting for sofa change from copper OBS sellers, they want a cut of the bigger operations.

WOTC will be fine with the small fry having to put up with an ambiguous legal context, if that ambiguity forces the the larger third-party publishers to negotiate with them directly.

Corporations are perfectly happy making everyone sign, "We can take your organs," style agreements that give them all the leverage, while saying, "Oh well, we would never take YOUR organs, we don't mean you!" in blog posts that aren't legally binding.

As an example, just look at the DMs Guild agreement. If you've agreed to that, you've authorized OBS to sign legal contracts on your behalf 'to clarify their rights'. Fun!

O3: That's not what OGL 1.0A | Section 9 says!

I think that may be true.. but perhaps irrelevant. The OGL 1.0A is 22 years old—the people doing OGL 1.1 are completely different, with wholly different goals. The OGL isn't sacred to them, it's a tool, a revenue opportunity.

WOTC will be 100% fine with an ambiguous legal environment as long as they achieve those goals: making the bigger players talk to WOTC to report their income, pay up, and/or negotiate separate agreements. 

Clawing History

The permissive interpretation is weird, but the retroactive interpretation is truly bad news for third parties. It not only means that WOTC starts taking a cut of new products based on One D&D, but that it potentially can claw into the revenues of existing products. If that wasn't what they were thinking, why would they declare 2023 a royalty grace period? If royalties only applied to new, OGL 1.1 products, royalties could apply right away because everyone publishing under it would know the deal during planning time.

Go Carefully

We will see how the chips fall when the OGL 1.1 is released, but I stand by my previous feelings that the OGL should be used extremely carefully, and only when you're actually using the specific rights it grants you.