I know, I know. Long time no write. While I keep working on Delve RPG in my free time, over the past year, my free time has been short because of a new gig. But there is something going on in the industry, and I wanted to get it on here.
Someone asked me this morning how I think this OGL stuff affects a certain publisher. Here is my answer.
In my opinion, it does affect them in some ways. The problem is that we don’t know how.
If you read the leaked OGL v1.1, it spends much time being cutesy, just casually unauthorized a license in use by hundreds of companies and thousands of fans for more than 20 years, with no explanation on what that even fucking means. They hint at what that means, but they never really explain it.
So, what does it mean? Right now, it depends on what lawyer you ask. And because of this, nearly every tabletop roleplaying game publisher has slowed production to play a weird game of “Ask the lawyers.”
That should be easy, right? They’ll have the definitive answers!
Intellectual property law is a complex and nuanced beast. And much of what is going on right now has rarely, if ever, been litigated. And it will need to be litigated. It’s one of two main ways in which questions are answered when it comes to intellectual property. The other is through legislation. And since copyright and patents are the domain of the Constitution, almost certainly federal legislation.
The leaked OGL v1.1 is many things, in my opinion. It’s stupid and short-sighted, arrogant, and flippant. It’s easily amended by Hasbro/Wizards of the Coast, and thus, they can alter the deal at any time, as it seems they have changed an over-20-year-old deal at the drop of a hat. No matter the cutesy tone in the leaked document, they don’t want to get to know us. They are no longer our friend. They want you to shut the fuck up, buy their stuff, and please never tell them about your characters or campaigns.
But I also think it’s blatantly overreaching, which concerns me. And many of the lawyers I talk to agree with me. Of course, I’m sure Wizards has lawyers that agree with them.
And that’s the uncertainty of it all.
You’ve probably heard that you can’t copyright game mechanics. It’s true, but it’s more complex than it sounds. The OGL v1.0a defines open content as “the game mechanic and includes the methods, procedures, processes, and routines to the extent such content does not embody the Product Identity.”
Well, that all sounds suspiciously like patent language. Wizards of the Coast does hold some patents relating to game design, but none, to my knowledge, have anything to do with what is currently designated Open Game Content in any of their SRDs or what is described as Open Game Content in OGL v1.0a.
What’s Product Identity? According to the OGL v1.0a, it’s a lot of things, most of which concern copyright and trademarks, and other items which are likely undefendable, but we all put up with that nonsense for 20+ years because it defended both parties. We got pretty good at figuring out what would get us in trouble and what wouldn’t. In some ways, the OGL was more like a treaty than a license.
But now, shots are fired. In the leaked v1.1a, Wizards of the Coast is claiming all D&D is defendable intellectual property, whether it falls under trademark, copyright, or patent law. Trademark and copyright, you bet. We all agreed to that a long time ago. But some parts of the game are likely undefendable short of a patent, and I believe that ship sailed a long, long time ago and likely wouldn’t have been granted anyway, based on past patent applications and case law.
How much territory is Wizards claiming? How much treasure and matériel will they put into that push? We used to know this answer. Now we don’t. And that is why this change is so disruptive to every aspect of our industry. Even those folks who publish roleplaying games without the OGL, though likely to a lesser extent.
And the fog of war will continue until Wizards clarifies its stand, or this all goes to court, and likely both.
Lastly, folks have asked me whether or not Delve is an OGL game. I was once considering publishing it as an OGL game, but I don’t have to. So, for now, at least, the answer is no.
I always aim to shed more light than heat while being a tad spicy at times. So, if you’re looking for some more context on the OGL issue, here are some resources I’ve found in the past 24 hours.
The first is from the Roll of Law YouTube channel. It gives an excellent summary from a lawyer.
The second is a blog post from my friend Robert Bodine, who is also a lawyer with many opinions on the OGL. We have spent many evenings giving each other shit while discussing them. You can find his take here: Consideration in the OGL 1.0/1.1
The third comes from Kit Walsh, Senior Staff Attorney at Electronic Frontier Foundation. You can find here post here: Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators
And the last is from Noah, a.k.a MyLawyerFriend, an attorney with a focus on business and intellectual property issues in the tabletop and digital gaming industries. You can read his take here: Let’s Take A Minute To Talk About D&D’s Open Gaming License (OGL).
Like everyone else in the industry, both I and my current employer, GRIPNR, are delving deep into this issue and determining the next steps when it comes to the OGL. I have some initial thoughts on those next steps, which I will outline later, but until then, you might want to check this out. Ryan Dancey (a guy I used to work for and the co-architect of the OGL v1.0a) discusses the history and intent of the original OGL.
This is an amazing interview with Ryan Dancey about the OGL.
Of note, Ryan outlines his theory on why we are seeing this push to the OGL v1.1 at around the 1-hour 8-minute mark in this video and continues until about the 1-hour 18-minute mark. His explanation aligns with what I know of Hasbro and Wizards of the Coast and the current business environment. I think he nails it. If you want to understand the whys, listen to that. This might be the most important in a video with many high points.