Update, i.e. More on the Ghost of Ryan Dancey

 

Looking at the current rumor mill reminds me of my favorite bits of the OGL.

"In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royaltyfree, non-exclusive license with the exact terms of this License to Use Open Game Content."

— Jason Bulmahn, Game Designer (@JasonBulmahn) December 17, 2022

almost like it was desgned to be irrevocable!

— Ryan S. Dancey (@rsdancey) December 17, 2022

Jason Buhlmahn, for those who don't know, is the head designer at Paizo. I saw Tweet #1 the other day, but I missed Tweet #2, which as it turns out given today's events was actually the more relevant prescient  one.

So, what are today's events?  Well, Wizards released a statement regarding the issues I mentioned in the previous post.  The key bit of information is that Wizards will be rolling out a new version of the OGL, called in a rather transparent bit of marketing "version 1.1."  They also, hilariously, raised the spectre of "third-parties [ ] mint[ing] D&D NFTs" and possible unlicensed D&D content from "large businesses" (Amazon?  Elon Musk's "empire"?  Who's bigger than Hasbro?) as a justification for this move, which is transparently lazy pandering to the fanbase's (not unjustified, to be clear) bugaboos.  

We won't know the full extent of the changes this version 1.1 will bring, but at a minimum according to the post the new license will be limited to print and print-like publications (i.e. pdfs) of material, and not any other format and draw a clear delineation between free content and content for sale.  For content for sale, at a minimum (1) the creator must tell Wizards what they are making, and must affirmatively opt-in to the new license; (2) report how much money you are making from selling OGL 1.1-based content; and (3) above a certain threshold of revenue, OGL products must pay royalties to Wizards.  Speculation has abounded that this new 1.1 will have other provisions like the poison-pills I mentioned in the previous post in connection with the failed GSL in the 4e days, and while I would put money on this being true, this is unconfirmed.

And this is where Buhlmahn and Dancey's comments come into play.  As Buhlmahn quotes (which is found in Paragraph 9 of the 1.0 OGL), "[y]ou 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."  What this provision does, in effect, is fork the OGL into two entirely separate trees.  Whatever provisions will govern material derived from OGL v. 1.1, you can always publish derived from the previous iteration of the OGL (i.e. "Open Gaming Content originally distributed under [the previous] version of this License."), and rely on Paragraph 9 of the old OGL for your legal authority.  Equally, you can publish material based on anything that itself was derived from the 1.0 OGL--Pathfinder, 13th Age, retroclones, etc.--as you would be "modify[ing] . . . Open Game Content originally distributed under [a previous] version of this License."

Dancey's comment suggests that, in fact, Paragraph 9 was intentionally designed to prevent Wizards (or their successors) from restricting the OGL and force people to abide by the new terms.  Companies roll out new, anti-consumer terms in the customer agreements via so-called "bill stuffers" all the time.  Wizards would surely like to force everyone to abide by the new terms, but Paragraph 9 of the old OGL prevents them from doing this.  *shakes fist at the sky* Dancey!

One last thought.  I am going to make a prediction--Critical Role will not switch to One D&D, and will stick with 5e.  It's not just that they will have to pay royalties on their Exandria supplements if they use One D&D, though there is that.  Critical Role has a video broadcast using D&D rules, and it has an animated series that is derivative of that play and those rules.  Wizards is taking the position that this is not subject to the OGL, but is instead covered under the "Fan Content Policy."  Now, Wizards is also taking the position that any non-book uses of the D&D rules were always excluded from the OGL, but it has apparently not enforced that position visa ve streamed game content and/or derivative works.  Given that, if I were advising the Critical Role folks, I would tell them they are much stronger ground sticking with a license that Wizards has a track record of not interpreting to prevent their use than switching to a new license and running the risk of Wizards being nipping at their heels.