Wizards of the Coast Rolls Nat 1 on Copyright

 I saw this bit of nonsense online:

https://www.polygon.com/23540640/dnd-ogl-1-1-leak-dungeons-dragons-pathfinder-2e-wotc-hasbro

It's an article by Charlie Hall entitled, 

D&D’s stricter licensing rules might impact some beloved RPGs

The OGL 1.1 leak may give Hasbro’s golden goose some very sharp teeth

[tldr; Wizards of the Coast (owned by Hasbro) are considering new licensing terms that would supercede the Open Gaming License. Such terms would be more restrictive and would require game designers who make more than $750k to pay royalties. Charlie imagines that other companies using the OGL would be "in jeopardy".]

Sorry, Charlie. They WON'T.

By law, game mechanics are explicitly non-copyrightable. Anyone who complies with the OGL 1.0a has already agreed not to use any of the features of the game that are copyrightable. IOW, the OGL grants you exactly nothing that it's within Hasbro's (parent of Wizards of the Coast) ability to restrict.

Here's an example of what I mean, and I'm linking to a copy of the OGL 1.0a for comment (and so you can see for yourself. I'm going to break this out into several comments:

https://opengamingfoundation.org/ogl.html

The OGL defines "Open Game Content" as follows:

"(d)"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity."

Game mechanic, methods, procedures, processes and routines are exactly those things that are not copyrightable in the first place. You can copyright or trademark the expression of a game... the visual design, character backstory, descriptive elements... iow, the sort of fluff that have nothing to do with game mechanics and are useless to those creating new game content... but you cannot copyright the rules.

The OGL defines "Product Identity" as follows:

"Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content

For the most part, these are the things that are already restricted by copyright. Trademark and creative expression. And with regard to Product Identity, under the OGL "You agree not to Use any Product Identity" without a separate license agreement. Same with Trademarks. IOW, all rights are reserved. They grant you nothing that's theirs to give.

However, some of these items are NOT normally copyrightable. A spell or enchantment, for instance, when simply stated without creative embellishment, is nothing more than a process. Most magical or supernatural abilities are taken verbatim from existing real-world lore, or are so generic as to be unenforceable from a creative licensing standpoint. You simply couldn't use their specific description of it. By agreeing to this license, you give up rights that you would otherwise have.

The OGL specifies what is granted by the license:

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content. [emphasis added]

That's all. Note that "Open Game Content" consists only of the features that cannot be restricted by copyright anyway. You've granted nothing else. If you want to include anything that's covered by Product Identity or Trademark, you need a separate license.

This "license" grants you nothing.

Now, you might have noticed the phrase "perpetual, worldwide, royalty-free, non-exclusive license". Looks nice, but you already have that with regard to "Open Game Content" under copyright law. It's a cheap way of looking generous while giving zilch.

I've heard commentary that "perpetual" somehow means WotC can't revoke the license. If they did, they'd be doing you a favor. In reality, it's the fact that "Open Game Content" isn't copyrightable in the first place that prevents WotC from controlling your usage. The "license" is irrelevant.

Nevertheless, WotC seems to bluff you into thinking they can control your use by another clause...

The OGL is weasel-worded:

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.

WotC seems to believe they can use ambiguous wording to bluff you. Thus they can simply declare that the OGL 1.0a is "no longer authorized".

So what? You have no obligation to accept a later license. Those things defined as "Open Game Content" don't require a license in the first place. By revoking the OGL 1.0a, WotC would simply be freeing you from the other restrictions of the license that were placed upon you. For instance, you would now be able to freely state that your game is "compatible with D&D". Non-copyrightable items that were improperly labeled "Product Identity" (such as spells) would continue to be at your disposal.

And for those features that are copyrightable (defined within "Product Identity") the OPL 1.0a already requires a separate license. Rescinding the OPL cannot rescind those separate licenses.

IOW, They didn't grant you anything, neither can they take anything away if you don't let them. They just want you to think they can. They either hope you have the worst lawyer in the world, or they've actually hired the guy themselves.

Furthermore, in contract law, judges hate weasel wording. Ambiguous terms are practically always interpreted in the most favorable light for the party that did not write the contract. If by a reasonable person it reads as if it's in perpetuity, it is. "Perpetuity" can't be revoked. 

And no, I'm not a lawyer, but I don't think you need to be in this case. The only legal advice I'm giving is that if you're creating content under the OGL, see a bona fide lawyer. I just wouldn't be surprised if it were a pretty short consultation.

Conclusion:

So in my opinion... this is a big fat nothing-burger. WotC gave you nothing, can take nothing away, and can only hurt themselves by revoking the license since you have no obligation to agree to a new one, nor any incentive or need to do so. You don't need to pull products from the shelves. You don't need to stop crowdfunding. You don't even need to pay the Danes any gold.

Personally, after this PR fiasco, I would not label my open game content as being "compatible with D&D" since that would give WotC free advertising that they didn't pay for. But I certainly would have no compunctions about creating modules and other content that were totally compatible, and even ramping up such efforts as a big FU.

That said, I think the proper response is to just keep gaming, and just not buy items produced by WotC. You don't need them... at all. And in a couple of days when they issue the inevitable walk-back, don't forgive them. Just let Rome burn.

Oh, and to Wizards of the Coast:

Image via Wikimedia