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.

Compatible with Dungeons & Dragons

This blog post is compatible with Dungeons & Dragons™ fifth edition. :)

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I'm now in the world of feeling my way through creating various system-specific versions of the Trilemma bestiary, en route to publishing them.

My thought at this point is that there is a lot of murky thinking about what you can and can't publish, and this murkiness is a) deliberately created, and b) mostly helps the big players, like WOTC.

I'm not a lawyer, but this is what I've been able to piece together.

1. Large IP holders want you to believe that their official programs are the only way to produce compatible products

If you want to make a D&D-compatible product, prevailing wisdom is that you have two choices: use the OGL, or use the DMs Guild. (Why is there no apostrophe in that?)

I can understand why the WOTCs of the world would want you to think this. People have a very hazy grasp on copyright law and trademark law, and if they just used their intuition all sorts of IP violations would occur. There's a very common idea, for example, that derivative works are fine to create and publish if you're not making money on them. (They're not.)

Official programs are a way of being really clear about what the IP holder is willing to allow people to do.

2. Licensing agreements describe an exchange

Licensing agreements give you something in exchange for something. For example, if you look at Paizo's compatibility license, it describes an exchange between you and Paizo:

• You can use Paizo's trademarked "Pathfinder compatible" logo, and the associated font in your products
• Paizo gets your agreement that you'll only make 2e-compatible stuff, they get a copy of compatible products from you, and you agree not to refer to page numbers in their books.

Both of these things are new rights that each party didn't have previously. You didn't previously have permission to use Pathfinder's trademarked logo, and (of course) Paizo can't prevent random people from referring to Paizo page numbers.

Briefly, I've noticed a few things are common in licensing agreements:

• You're given permission to use copyrighted text (as in the OGL)
• You're given permission to use trademark logos
• You're given permission to use trade dress, fonts, or stylings

The D&D 5e SRD, for example, is licensed under the OGL (which grants permission to use copyrighted text) because they expect people to take chunks of that text and use it their publications. It gives the new right to republish copyrighted material.

3. Creating a licensing program doesn't remove any rights that you already had

This seems like a straight forward idea, but it's worth dwelling on.

Let's say WOTC created a new program called the Reviewing Wizards program. By agreeing to their license, you're allowed to call yourself a Review Wizard™ and use a special little -(RW)- logo when you do so, and in return you agree never to publish a negative review of a WOTC product. Fine.

Is this the only circumstances that you're allowed to publish reviews of WOTC products? No, of course not! WOTC creating this program doesn't suddenly give them control over all negative reviews. It only applies to participants in the Reviewing Wizards program.

If I'm publishing negative reviews of WOTC products, I can't use the Review Wizard™ trademark, because I didn't license it, but if I don't join that program and take the new rights it grants me, I don't have to abide by its restrictions. I can still do what I could do before.

So.. what can I do without permission?

4. Fair use of trademarks

Before I get into that, there's a difference between compatibility and statements about compatibility:

• A book with 5e stats in it is (in a lay sense) compatible (usable) with 5e.
• A book that says it's "compatible with Dungeons & Dragons™" on the cover is using a WOTC trademark to describe itself.

These are independent things. Okay, back to trademarks.

The International Trademark Association's page on the fair use of trademarks is fascinating, because you can actually do quite a lot more than you might expect. The examples are useful, because there's a whole bunch of, "Oh yeah.." recognition moments. Think of:

• Third-party replacement blades for Gillette™ razors
• Repair shops that advertise being able to fix BMW™ cars
• Third-party sellers of iPhone™ 6 phone cases or chargers
• Unofficial guides to AAA video games

All of these are services or products that are compatible, but which also use another company's trademarked terms to describe themselves.

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Why does all this matter? Frankly, because some of the popular licensing programs out there are batshit insane. So now, let me put on my Review Wizard™ hat and review some licensing programs.


Legal Lunacy: OBS Community Programs

The DMs Guild (why is there no apostrophe?) was the template for a number of OBS (DriveThruRPG) community content programs, and to use them, you give up some remarkable things:

• You can never publish the work anywhere else—not in print, not via Kickstarter, not on itch.io, not on your blog, not anywhere. If they delist your product or the whole community content program shuts down, your content is then simply unpublishable.
  
• You can't publish works derived from it anywhere else, either.
  
• The publisher gets a permanent, irrevocable right to republish your work, including creating and selling derivative works. They can translate it, slice and dice it and put it in compilations, without paying you a dime or even telling you.
  
• OBS can sign legal documents on your behalf, operating as your 'attorney-in-fact' if they need new contracts to clarify or affirm their rights, as they see them.

That last one is so mind-bendingly overreaching that it's comical. You're giving them permission to negotiate for you, with themselves. It's like the devil wrote it.

As far as I can tell, the only reason to use this is if you're so smitten by the D&D brand that you want to rub that cachet on yourself, and/or blow hundreds of hours of hard work on a desperate notice me sempai play.

If you're going to market the hell out of your product (or cash in on your good name), then it makes a kind of sense: the median DMs Guild product makes 10% more revenue than the median DriveThruRPG product (sales are higher, but the WOTC clawback is almost aggressive enough to make up for it), but at the cost of giving away all rights that matter.

Alternately, if you have no marketing impulse whatsoever all and 50 sales sounds good to you, then these programs makes a kind of sense because at least you can play with WOTC IP while you're doing it.

For non-WOTC publishers who are too small to boost your sales or give you much IP to play with, I can't fathom why you'd touch an OBS community content program. This is the infectious green slime of licensing programs.

OGL

This is a funny one. As far as I can tell, the only reason you need to use the OGL is to republish OGC content. If your content is all new, there's no need to use the OGL whatsoever—in fact, you're explicitly giving up some fair use rights unnecessarily, since the OGL prohibits you from using Product Identity trademarks to declare compatibility.

In other words, if you reuse 5e SRD to make a 5E-compatible product, you're explicitly giving up the right to say it's D&D compatible.

If you're not actually republishing someone's OGC material, using the OGL looks like you've given up some rights for nothing.

Pathfinder Compatibility

In contrast, this actually looks pretty reasonable. You're forced to use the Paizo OGL, but the compatibility license gets rid of OGL's major restriction on the fair use of trademarks for compatibility statements, by letting you use their Paizo Compatible™ logo.

Also, it should be worth mentioning that Paizo doesn't take a cut. They haven't created a garden prison like WOTC, they just want to make sure that people are writing for the latest edition of Pathfinder.

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D&D™ Compatible

In conclusion, contrary to popular wisdom, D&D™-compatible products which say, Compatible with D&D™ on the cover seem to be completely legal. As long as:

• You're not using any WOTC-copyrighted content that would require you to use the OGL
• You use the trade marks in a minimal way (e.g. no giant logo reuse, just naming them)
• No brand confusion is created, and no business relationship or endorsement is implied

Pay To Win

The sad fact is that, despite all this, having a heavyweight legal team lets you send scary-sounding cease-and-desist letters, and fighting them is too stressful and expensive for little publishers. Most (all?) of the fair use of trademarks examples I cited above were established by litigation, which is horrendously expensive.

One depressing but useful benefit of participating in an official license scheme is as a declaration of what the publisher won't try to bully you for doing.