If you go on Twitter (yes, yes, I know--I can't help it), one of the trending hashtags is #OpenD&D. This hashtag is reacting to the news that Wizards of the Coast has sent out NDAs (non disclosure agreements) to some of the major 3rd Party creators for 5e as a prelude to a discussion about what it might look like to be a 3rd Party creator for One D&D a/k/a D&D 6e. The (not unreasonable, but nevertheless unconfirmed) speculation is that Wizards is going to lay out a program that is far, far more restrictive for One D&D than the current program for 5e, and the #OpenD&D hashtag is a push-back and a protest against that possibility.
Given that, I thought it might be worthwhile to put on my day-job hat as a lawyer and talk a little bit about the OGL and what Wizards can and cannot do going forward. At the risk of being pedantic, you see a lot of people online saying that Wizards is going to "get rid of the OGL," which as I will get into in a bit is not within Wizards' power to do.
To begin this conversation, let's go back to the early to mid 1990s. D&D was owned by TSR, originally founded by among others Gary Gygax. By the 1990s though, Gygax was long gone, and he was working with GDW (Games Design Workshop) on a fantasy game called Dangerous Journeys. When it was published, TSR, as it was want to do, sued Gygax and GDW, claiming (among other things) that it infringed D&D's IP. Now, a couple of things to note here. First, the general consensus among IP lawyers is that the rules of a game are not subject to copyright, at least under US law. So, at least on the level of rules material, suing someone who makes a ttrpg that has rules that are kinda similar to your game is probably a losing proposition in the end. For example, I stumbled across some discovery responses in the case, found by the Grognardia guy, that suggest that TSR was arguing among other things that the idea of characters losing stats by getting older, as well as the concept of the character class, was part of its IP, which seems, um, very dubious to me. Second, GDW was at the time one of the major players in the ttrpg space--they published Traveller and Twilight 2000, which were very successful games.
But, third, neither of the previous two facts really mattered in the end, as the lawsuit (combined with the ttrpg crash of the mid 90s) drove Dangerous Journeys off the market and GDW out of business. TSR was just bigger, and thus had the resources to sustain protracted IP litigation in a way that Gygax and GDW were not. The lesson here is that, when dealing with IP disputes, the question is often not "what position will ultimately be vindicated in the end?" but "what position is not going to get me sued?" The fact that TSR probably would not ultimately prevail on the argument that game rules are part of its IP is irrelevant if it knows that no one is going to be able to get to the end of the road in a challenge to that position. Or, said, another way, the rules for what you can and cannot do in the ttrpg space as of 1995 is whatever TSR thinks you can and cannot do, because no one wanted to get sued by TSR.
Then, in 1996, TSR is bought out by Wizards of the Coast. The usual story told, which I think is well substantiated in Ben Riggs's book, is that TSR was close to bankruptcy at the time, and that as part of its poor financial condition it had put up the D&D IP as collateral. But TSR was in debt to multiple banks, and so the D&D IP was sliced and diced into various pieces and assigned to various entities. Insiders, notably Ryan Dancey, suggest that had TSR gone bankrupt, the D&D IP would have been scattered to the four winds and perhaps never reassembled into a cohesive whole.
It is in this context, alongside the fact that this is the late 1990s and Wizards of the Coast is in Internet Boom Seattle, the OGL was born. There is a really interesting interview with Dancey that Morrus at ENWorld did a number of years ago, and while one might say that Dancey is a bit self-congratulating in the interview, it provides some interesting insight into the thought process behind the OGL. Dancey makes clear that he believed that the OGL was good for Wizards from a business perspective, because it freed them from making unprofitable secondary and tertiary D&D material, the sort of material that buried TSR toward the end. But Dancey also says that he saw the OGL as a vehicle to make sure what almost happened to D&D with TSR--being locked behind layers of legal infighting and thus not accessible to players--would no longer be possible.
To see how the OGL does that, let's look at the text of the OGL itself. The OGL is very short as legal contracts go--two pages on my screen. At the heart of the OGL is the distinction between "Open Gaming Content" and "Product Identity." "Open Gaming Content" is defined in Paragraph 1(d) as "the game mechanic and includes methods, procedures, processes and routines to the extent such content does not embody the Product Identity. . . ." "Product Identity," in essence, is defined as things that you can clearly copyright or trademark--"product line names, logos, identifying marks. . . creatures, characters, stories, plots, thematic elements, dialogue. . . ."
Now, you might say, "if you just said you can't actually copyright rules, doesn't the OGL give you the 'right' to use things you already have the right to use and prevent you from using stuff you clearly can't use?" Well, yes. But, in return for Wizards being able to determine the boundaries of what is and is not Product Identity, Wizards grants you a "perpetual, worldwide, royalty-free, non-exclusive License." (Paragraph 4). In other words, once Wizards decides that something is Open Gaming Content, it can't take it back, and you the creator can be safe in the knowledge that you are not going to suffer the same fate as Gygax and GDW. The OGL creates space for creators to be confident that they can make something that is not going to cause them to eat a ruinous lawsuit.
So, Wizards cannot repeal or withdraw the OGL. And Wizards cannot take content that it once said was Open Gaming Content and redesignate it as Product Identity. More specifically, both the 3.0/3.5e and 5e System Reference Documents, which embody the content that Wizards agrees is Open Gaming Content, are fair game to be used by anyone, forever. This is Dancey's ace-in-the-hole--no matter what Wizards or its successors do with D&D going forward, that material will always be available for folks to make their own versions of D&D, as demonstrated by Pathfinder, and 13th Age, and Shadow of the Demon Lord, and all of the other d20 based games out there. It also allows you to build a "retro-clone" of an old version of D&D, which was likely not contemplated by Dancey but nevertheless a viable use of the OGL license.
If Wizards can't repeal the OGL, what could it do in the context of One D&D? The first thing it could do is shut down the DM's Guild. The DM's Guild is a separate license that allows a creator to use not just Open Gaming Content, but Wizards's Product Identity material, in return for Wizards taking a cut. This is why you see products on the DM's Guild that remix or expand Wizards's published adventure paths--while the OGL would not let you discuss or reference the plot of Storm King's Thunder, the DM's Guild license let's you do that. I have not looked closely at the DM's Guild license, so I am not sure if Wizards could retroactively pull things that have already been published, but it definitely could sunset the permission to use the D&D IP so that no new material could be made.
It could also leverage the DM's Guild to try to choke off the OGL. Perhaps if you want to make content for One D&D under the DM's Guild umbrella, you have to agree that you won't make content under the OGL for previous editions. Wizards tried something like this in the 4e with the "Game System License" or GSL, which (among its many licensee-unfriendly provisions) purported to stop you from making OGL stuff. The GSL was a complete failure (basically, no one made anything under the GSL and stuck with the OGL), but if Wizards is creating a walled garden for One D&D, access to that garden might be attractive enough to make people forgo OGL material. But, again, all the OGL stuff will still be out there, and no one would be forced to go along with whatever DM's Guild 2.0 rules are put in place.
The other move is to simply not release an SRD for One D&D and assert than none of it is within the ambit of Open Gaming Content. Now, given that Wizards has told us that One D&D is going to be backwards compatible with 5e, much of One D&D should be treated as Open Gaming Content via pass-through, and all the rest of it is arguably Open Gaming Content either by virtue of the definition in the OGL or by operation of IP law. But, as I said, wise people are keen to avoid litigation with a publicly traded company. For example, the 5e SRD only includes one subclass per class, and I think the argument that the rules for the Battlemaster is Product Identity is borderline absurd (especially if you changed the name to "Master of Battle" or something). But one notices that people scrupulously avoid using those subclasses in OGL material, because the whole idea of the OGL is you defer to Wizards's determination of the boundaries between Open Gaming Content and Product Identity in return for not getting sued, even if Wizards's line drawing is kinda crazy.
What Wizards can't do is say "we own all D&D, and thus you can't use any of the D&D predecessors or derivatives unless you come through us." They can close the door to the current version of D&D, but not to D&D in total. And we know this because, if they could, Wizards would have sued the shit out of Paizo in 2008 when Pathfinder was booming and 4e was in the toilet. If Wizards does close the door to One D&D, then absolutely nothing stops anyone from "Paizo-fying" 5e and publishing as much 5e stuff as they want.
Do I think that, if they could, Wizards would close off One D&D and make everyone play in their walled garden a la Apple and the iTunes store? 100% yes. I bet you that Wizards executives shake their fist at the OGL and curse Ryan Dancey's name on the regular. But, whatever you want to say about Dancey, he designed the OGL at least on some level to be a poison pill explicitly to prevent Wizards (or anyone else) from fully conroling how people play D&D. Everyone who wants to monetize D&D, from now until the end of time, will be haunted by the ghost of Ryan Dancey.
All of which leads me to a question for the #OpenD&D folks, which is "what specifically do you think is essential in the current ecosystem?" Being able to make D&D content (even if perhaps you can't call it "D&D")? Being able to use D&D IP? Being able to plug-into Wizards's marketing apparatus via the DM's Guild? Because if it is #1, you basically have nothing to worry about, because we are all protected by the ghost of Ryan Dancey and the OGL. Wizards can't take that away, even if they want to (and they probably do). As for the others, I completely understand how a retraction of the DM's Guild would be bad for creators in that ecosystem, especially from a visibility standpoint. But this ecosystem is a relatively recent phenomenon. And, at the end of the day, I can't say I think people have some sort of moral right to use Wizards's IP and draft off of their marketing expenditures. Whether it makes sense from a business or public relations standpoint is one thing, but as a legal matter and as a matter of fundamental fairness, I don't think Wizards would be in the wrong to walk back the DM's Guild in the context of One D&D.
Particularly because, again, if you don't like what Wizards is doing with D&D, you can offer your thanks to the ghost of Ryan Dancey and go off and do your own thing. I would be lying if I didn't say that the energy over #OpenD&D feels a bit like the objections from the Leopards Eating People's Faces Party. Many of the influencers and creators who poo-poo'ed Pathfinder and the OSR retroclone spaces a couple of years ago are now mad that the gravy-train is over as Wizards is trying to recapture some of the space that Wizards itself voluntarily ceded to those influencers. "Why is this big company, owned by a bigger publicly traded company, who has spent the last six to eight years focusing on making D&D into a lifestyle brand in addition to being a game, making decisions that are completely in keeping with that trajectory but happen to be bad for me personally?" At the end of the day, Wizards owns the brand, but it doesn't own the rules. If the brand matters to you more than the rules, then you are by definition playing on their turf, with everything that brings with it. Otherwise, you have everything you need. Welcome to the Resistance.
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