The Key Issues for OGL 2.0

The leaked OGL 1.1 had a number of serious problems that jeopardize WotC’s future, that of creators, and our hobby as a whole. In this post I list the key issues, so we can assess whether any future OGL 2.0 meets our collective needs.

OGL 1.1’s Problems

While WotC acquiesced on a few points last week, it is hard to know what the OGL 2.0 (which may come out very soon) will truly hold. We can use the never-released-but-publicly-known 1.1 to identify the issues where WotC needs to make changes.

Deauthorizing 1.0

Importance: Dealbreaker
Recourse: WotC either needs to remove this language or create a very palatable 2.0 that is itself the final version and cannot be deauthorized.

The OGL is imperfect. Despite that, this “perpetual, worldwide, non-exclusive license” has many benefits for the hobby and for WotC. Amongst these: it encourages creators to work on D&D instead of other systems, to work on D&D instead of creating their own system, and to be part of a larger community mutually benefiting from each other and with D&D. We have seen the past two weeks just how true this is. The threat of removing 1.0 is enough to fragment that community, elevate those who dislike D&D, and turn once allies into competitors.

The OGL may not be legally required in many situations (particularly when a creator does not need the SRD), but having it is convenient for both WotC and creators. It adds a level of understanding between the two, and allows the creator to share with other creators. However, this is only true if it cannot be deauthorized.

1.1 claims to “deauthorize” 1.0. This may not be possible legally, and there are probably companies willing to sue to find out. I would argue the industry and WotC are both better not finding out. We are better with the ability to work together, under 1.0.

It isn’t good enough to deauthorize 1.0 but allow creators to sell already created 1.0 products. It raises too many questions. What happens if a company needs to revise a product? Reprint it? Sell it on a different platform? If someone finishes a draft with the OGL, can they finish it later this year? A few years from now? Allowing the sale of 1.0 isn’t enough, and it’s probably a legal right anyway.

For creators to be happy, either this “deauthorization” language needs to be removed, or a new OGL 2.0 would have to be so good as to be agreeable to creators. Then, that 2.0 would need to state it cannot be deauthorized. Otherwise, creators can’t trust the agreement won’t change. Trust is important, at a legal level, because companies and individuals work hard on creations and often invest significant time, money, staff, and other resources to complete projects.

Irrevocable and Immutable

Importance: Dealbreaker
Recourse: WotC needs to add language to make it irrevocable and immutable.

The OGL 1.0 is perpetual, and the language specifically indicates you can use any version you wish. WotC’s own FAQ stated that this meant you were free to use any version you wanted, and therefore WotC would never create a bad version since you could just keep using the old one.

This is critical, because creators need to be able to depend on the language of the agreement. Creators can’t devote time, resources, staff, and more to a project if the license could suddenly change and waste all that effort.

1.1 says WotC can modify or terminate the agreement with just 30 days notice. This is a dealbreaker. For an agreement to be the focal point of community and creator efforts, it must be irrevocable and immutable.

Approval

Importance: Dealbreaker, unless confined/clarified
Recourse: WotC either needs to remove this language, or confine it (ideally to a platform) based on very clear agreeable guidelines.

An open license should allow anyone to publish. It should not require a company to gain approval from WotC, especially since that would come after creating the product and all of the associated significant costs have been invested. It’s okay to require approval for a specific platform, such as the DMs Guild (which does not use the OGL) if there are strict standards and criteria based on the platform. However, no approval should be needed for non-platform spaces, because none is or should be legally required. This level of approval is not something WotC should want to have.

WotC claims it’s top goal in making changes to the OGL is to “prevent the use of D&D content from being included in hateful and discriminatory products.” This is such an unbelievable claim, both because we know that isn’t actually WotC’s top goal, and because the largest source of such problems has been WotC itself, spanning (but not confined to) the breadth of 5E. Much of this hobby fully supports proper content standards, but there are ways for WotC to implement that and facilitate that. At the very least, approval should be based on very clear and widely agreeable standards. It should not be possible for WotC to approve or disapprove based on hidden decisions behind closed doors.

Open Game Content

Importance: Vital, especially with 1.0 content.
Recourse: WotC should support open 1.0 content and ideally allow it for 2.0.

The OGL 1.0 allows a creator to not only use material in the SRD, it also allows sharing their creations with others and for those entities to use the creations in their products. 1.1 seems to remove this language.

What will 2.0 allow? Can I use a Kobold Press monster created as open content under 1.0 in a 2.0 product? Can I create open content in 2.0 that another creator can use? Why is this spirit of collaboration being removed? What is gained from it? If this doesn’t exist, is 2.0 just a license, and not an “open game license?” WotC needs to answer these questions. While just shy of a dealbreaker, for many creators it is a dealbreaker.

Print and PDF Only

Importance: Vital, with caveats.
Recourse: WotC claims it will back off on some claims.

1.1 asserts that the OGL only covers print and PDF products – it even specified pantomimes weren’t allowed! Good grief.

When WotC created the OGL 1.0, it intended for wide use beyond print products, as demonstrated by their old FAQ and several interviews.

I don’t actually object to some restrictions here, but there isn’t legal ground for them based on OGL 1.0. If there were legal ground, of if a license were confined to a platform, provisions would need to be made for various ways that creators use D&D both as forms of expression and to earn money, beyond the WotC fan policy. This is in the interest of D&D as well.

Royalties

Importance: Dealbreaker at high amounts.
Recourse: WotC claims this will be removed.

1.1 demands a 25% royalty from companies earning more than $750k on any product (even if the product is a combination of things and only some use the OGL). The royalties are on every dollar of revenue above the $750k. This is a problem because revenue is not a good measure of how large or successful a company is… particularly in the RPG space. Companies have had crowdfunding campaigns in excess of that amount and then folded as their costs were higher than that revenue. Crowdfunding campaigns often include many costs and investments. For example, Matt Colville’s first Kickstarter invested in the creation of an RPG company, streaming equipment, a building, miniatures, and much more. It doesn’t make sense to consider all those things revenue from one product.

Even a 5% royalty on revenue would likely be a problem for companies. It isn’t easy to think of how to structure a global royalty on revenue that would not be problematic.

WotC says it will remove this from the OGL. We may see it appear again on specific platforms, and that could be okay. The DMs Guild takes 50% of revenue, which is too high, but it is a figure a creator can plan for. It also means the platform is not for everyone, but works for some. WotC may charge royalties for creators to sell on D&D Beyond and their VTT, and that could very well make sense. It gives creators freedom to choose, as they do today with the DMs Guild.

Reporting

Importance: Problematic, dealbreaker for some.
Recourse: WotC should remove, or make it platform-specific only.

Along with royalties, 1.1 required companies to report revenue of more than $50k. Provisions requiring onerous reporting of revenue are neither in WotC’s interest nor in that of creators. WotC should not have access to this level of detail, and revenue for projects, especially crowdfunding projects, is a very poor measure of what a company will earn as profit. If WotC wants this, it should be confined to specific platforms, such as how they can likely see sales data for DMs Guild products.

WotC Ownership

Importance: Dealbreaker.
Recourse: WotC claims it is removing this. But the agreement actually needs to protect creators.

1.1 seems to say you own your content, but that WotC can forever use your content in any way they choose. WotC has walked this back, saying it was legal language similar to that used by online spaces, to prevent any lawsuits if WotC happens to create something similar.

Okay, but what we need is actually the opposite. We need protection that WotC will not use our content incorrectly, without negotiating for it with us. This may seem hypothetical, but there has already been at least one case where a WotC official product used a DMs Guild product without negotiating the rights to it. This was rectified, but that mistake remains possible and creators need protection from this scenario.

The Bigger Context

There are valid reasons why WotC can want to adjust the language of the OGL, even if it legally may not be possible to do so. On January 3rd I discussed what WotC may want. WotC chose a very different approach, and is reaping the costs of that approach.

The communication last Friday was not much better. Several of the statements made there are obviously not true. They are flawed and obvious attempts to gain our favor. We all hate NFTs, but the biggest threat was when Hasbro worked to sell NFTs. We all hate discrimination, but the farthest-reaching problem has been WotC’s own products.

As ComicBook.com writes here, WotC has misunderstood what brings D&D success. And as Penny Arcade so perfectly and poetically captures here, WotC often loses sight of why D&D resonates and what the “brand” actually is.

Beyond fixing an incredibly flawed OGL 1.1 attempt, WotC needs to look both inwards and outwards at what it is doing and why it is doing it. It needs to understand its very products, its role in the industry, and why it can forever change a kid’s life to open up a D&D product. WotC needs to revisit how it approaches community and its responsibility to the culture it creates.

It should apply these lessons not just to OGL 1.1, but to One D&D, and to whatever ruminations are taking place in corner offices regarding a VTT, D&D Beyond, and the balance between digital and paper. It’s fine to use the term “monetization” in a speech for stockholders, but don’t you dare believe that’s the key to D&D. Are you really going to destroy what brings kids joy?

As Tycho said, “you have entered treacherous waters entirely of your own volition. Literally just turn around, and walk back out.”