I am once again at the risk of having this happen again with this post. But, let's give it a shot, because I would like to talk about the recent draft of what is now called "OGL 1.2." You can find the text here. Much of the commentary, not surprisingly, has been focused on what this means for creators that would make, or would consider making, content for One D&D. That is, at the end of the day, the target audience for OGL 1.2--at least unless you believe that OGL 1.2 is entirely pretextual on the part of Wizards, in the sense that they know no one will agree to this and want to use that to shut down 3rd Party creators in toto. For what it is worth, I don't think it is pretextual. While it is clear Wizards wants 3rd Party creators to have a relationship to Wizards that is more tilted in favor of Wizards that the previous framework, Wizards has made moves (particularly getting rid of the royalty provisions) that only make sense if you actually want people to use the license to make stuff.
But, at the end of the day, I'm not really interested in the One D&D ecosystem. I've been out on 5e for a few years now, and I cannot see myself engaging with One D&D except out of mere curiosity over what they have done. What I am interested in is how OGL 1.2 affects the folks that make competitor games in what is known as the "d20" space. I have said on numerous occasions that I am a big fan of 13th Age, which currently in playtest for a revised edition. I'm in the playtest program, and Rob Heinsoo has asked that playtesters not comment about the specific changes, but I can say in general terms that I am extremely pleased with what I have seen, in that it makes small but meaningful changes to the mechanics in ways that improve the game flow without invalidating any of the previous support material. I would really, really like to see that game come over the finish line. Likewise, I have reviewed and been very impressed with both Pathfinder 2e and Level Up, and I would like those games to continue to grow and develop. And, finally, Kobold Press has announced that they are going to do their own game system. In my judgment, Kobold Press's 5e material is the best around, better by a significant margin than Wizards' material. I stopped buying Wizards' 5e stuff, but I still buy Kobold Press's stuff, so their project is something that I am very much looking forward to.
All four of the publishers of the games mentioned above have signed on to the "ORC" initiative, spearheaded by Paizo, which aims to create a new OGL-like framework outside of the control of Wizards. Thus, they are not going to be using the OGL 1.2 structure for their games. So, my interest here is to what degree does the OGL 1.2 framework impact or hinder the publication of these games.
Right off the bat, the first element of OGL 1.2 is that it states that OGL 1.0(a) is "deauthorized," which means (according to Wizards) "you may not use that version of the OGL, or any prior version, to publish SRD content after [a date to be determined]." However, that same paragraph states "[i]t does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content."
The ORC initiative, or at least Paizo, has taken the firm position that Wizards does not have the power to deauthorize OGL 1.0(a), and that question will have to be resolved (to the extent it gets resolved), via litigation. But let's put that to the side for a moment and assume Wizards can deauthorize 1.0(a). The second part of that paragraph is pretty clear that, for example, Paizo would not have to pulp all of its existing copies of the Pathfinder 2e core rulebook, as they were printed under the then-valid OGL 1.0(a). And I think the language strongly suggests that Paizo could print more copies of the Pathfinder 2e core rulebook, since the core rulebook was "published" prior to the deauthorization of OGL 1.0(a). The question, though, is whether Paizo or any of the other OGL 1.0(a) publishers can make new works that are based on previous OGL 1.0(a) material. Pathfinder 2e has its own SRD, but that SRD is by its own terms derivative of the OGL 1.0(a) (at least right now). OGL 1.0(a) is the base of the tree that all of these games rely on, and so if you get rid of that, then it seems likely to me that all of the branches are cut as well.
This is in large measure what ORC is for. Presumably, Pathfinder 2e and Level Up and 13th Age will be re-published under ORC, and ORC will form the base of a new tree from which those games and any supplemental and derivative materials can grow, recreating at least in general principle the framework of the now-"deauthorized" OGL 1.0(a). In doing so, the argument will be that these games are now completely separate from Wizards' ecosystem, not subject to OGL 1.2, and free to go their own way.
But that in turn raises another set of issues. Each of these games utilized at least some version of the SRD, and derived their game concepts from that document, which is Wizards' IP, at least to some degree. When all these games get republished under ORC, Wizards could sue on the theory that they infringe Wizards' copyrighted material which is only accessible under OGL 1.2, which these parties are not using. Presumably, all of the ORC participants would like to avoid that if they could.
While it affects all of the d20 publishers, the most interesting case to me is Kobold Press's "Project Black Flag." In their most recent post, they stated that they intend to make Black Flag "forward compatible" with at least some of KP's 5e offerings (Deep Magic 2 was mentioned). So, it seems like KP is going to try to make a game that is as compatible with 5e as they can. But, this is a double-edged sword, as the closer they get to 5e, the greater the chance that they will get sued by Wizards under this copyright infringement theory. So, how close can they go?
This leads to the second interesting element of the OGL 1.2 draft, which is that it creates a third tier of D&D-related materials. Under OGL 1.0(a), there is the material in the SRD which is Open Game Content that participants in the OGL can use, and there is Product Identity which you can't use (at least not via the OGL). Under OGL 1.2, there is a third tier of material, so called "core D&D mechanics," that will be licensed under a separate Creative Commons License. Thus, anyone can use those materials without having to agree to any of the other OGL 1.2 terms, so long as they abide by the attribution requirements of the CC license. This CC-designated material consists of specified excerpts of SRD 5.1.
This material is significant. It includes, for example, the 5e XP advancement table (pg 56 of SRD 5.1), the idea of (and one example) of Feats (pg. 75), the six ability scores and how they work (including conversion of ability scores into bonuses--pg. 76), the Advantage/Disadvantage mechanic (pg. 76), saving throws (pg. 83), all of the combat rules including HP, hit dice, and the death and dying mechanics (pgs. 90-99), all the rules for spellcasting (pgs. 100-104), and all the rules for how monsters work (pg. 254-260). Because it will be in CC, Kobold Press can use all of this material in their game, if they want, with no potential problems. This will make it easy to make at least some of their previous content compatible and usable in Black Flag. So, for example, because the basic rules for how monsters work is accessible, all of KP's (extremely good) monster books could work in the new game. It also means that you can use these concepts generally, even in wildly transformed ways, because the CC license in question allows for transformative works. So, I would say that any use of the six core D&D attributes is unambiguously permitted, to take an example.
On the other hand, some critical elements of the SRD will not be CC--notably all the classes, all the spells, and all the monsters. Presumably, KP is going to want to have a Fighter in their game, and Magic Missile, and goblins. The degree to which they can depends on how much Wizards can actually copyright the material in the SRD.
Take the spell Magic Missile, as presented in the SRD 5.1 (for reference, it is on page 161 of SRD 5.1). It is helpful, I think, to think of that text as having three components. First, there is the name "Magic Missile." Second, there is the game mechanical elements of the spell--1 Action, range of 120 feet, does 1d4+1 points of damage per missile, can be cast at a higher level to generate an additional missile per level of slot. Finally, there is the text in the box that describes how the spell works. The general consensus is that Wizards does not have a valid copyright as to the second component, as the United States Supreme Court has held that you cannot copyright a process, and rules for a game are basically a process. So, even though Magic Missile is in the SRD, I think there is a very strong argument that you could have a spell in your game that takes 1 Action to cast, has a range of 120 feet, and auto-hits for 1d4+1 damage without falling under the ambit of OGL 1.2 or Wizards' IP.
On the flip side, it is also pretty clear that if you copy the SRD 5.1 entry in its entirety, including the descriptive text, then you are utilizing the SRD and are subject to OGL 1.2. The question comes in between these two poles. For example, what if you use the title "Magic Missile," keep all of rules elements, but re-write the descriptive text? That's basically what Level Up does, in addition to adding some additional rules associated with its "rare spells" concept. In isolation, I don't think that Wizards has any control over the title "Magic Missile"--it's not trademarked, and it is too generic to be something that really is within its intellectual property. So, if Wizards doesn't have any real IP rights to the mechanics, and it doesn't have any rights to the name Magic Missile, then the argument would be that the two of them together must also not be something that Wizards can control [FWIW, this seems to be the argument that the Electronic Frontier Foundation advances in this piece]. On the flip side, the name plus the mechanics is much closer to what is in Wizards' copyrighted SRD than either of the two separately, so I could see a judge saying that the whole is greater than the sum of its parts.
What about the fact that Pathfinder 2e's version of Magic Missile alters the mechanics slightly--instead of one action, Magic Missile is now 1 to 3 actions, with the number of missiles determined by the number of action spent? Does that make it outside the scope of the SRD? Paizo certainly seems to think so, as they assert that Pathfinder 2e is not a product of OGL-dependent material. And, if that is true, then KP could just tweak the mechanical parts of the classes, spells, and monsters (which they likely want to do anyway) and they are in the clear no matter what they call them.
Of course, Wizards may not look at things that way, and try to sue on some of these corner cases. I think in the end that KP and the rest of the ORC contingent have the better of the argument, if for no other reason that they also have all of the OGL 1.0(a) revocation arguments in addition to these IP arguments (because if OGL 1.0(a) is irrevocable, then it doesn't matter how close anyone's games are to SRD 5.1, as they could just use that). And it is possible that Wizards might choose not to push the copyright infringement claims out of a fear of a court giving them a ruling they don't want on the revocation issue. But, if Wizards chooses to sue, it will be expensive and protracted, and thus very difficult for small companies, of which all of them except arguably Paizo are.
Paizo is clearly going to stand on its arguments that its material is different enough to fend off any IP challenge. 13th Age is, if anything, more different from 5e than Pathfinder 2e, so I suspect they will ride it out as well. Does Level Up do the same, or do they revise their material? Since the core mechanics are now not at issue, I would be inclined to ride it out if I were Level Up, but then I don't have to pay to defend an IP suit from a Fortune 500 company. And then there is Kobold Press. We are supposed to see playtest documents next month, and I will be really curious if it has "Magic Missile" in the first packet, or whether it says something like "Force Missile."
The bottom line, as I see it, is that this new OGL 1.2 makes it far, far less likely that we are going to see full-on "lawfare" between Wizards and the members of the ORC initiative. Wizards has, on its own initiative, dramatically reduced the places in which their IP might clash with that of these other games. This signals to me that Wizards is not itching for a fight--a fight that has big risks for Wizards. Taking the OGL 1.2 release as a whole, it seems to me that my initial instincts were correct--all of this is not about shutting down Paizo and Pelgrane or EN Publishing, or even preventing Kobold Press from "Pathfinder-ing" 5e, but about preemptively protecting its soon-to-be released VTT from other competitors in the VTT space who would otherwise run One D&D. Rightly or wrongly (and I think wrongly, but we will see), I think Wizards does not view Paizo or Pelgrane or Kobold Press as real competitors, at least not real enough to risk a lawsuit that might declare that Wizards has almost no rights to the D&D IP. Whatever the wisdom of Wizards' position, it means that I suspect that fans of Pathfinder, 13th Age, and other d20 games will have uninterrupted access to their preferred games in a form that is basically the same as it is now. And I think Project Black Flag will be fairly close to 5e, or at least as close as the KP team wants it to be, with perhaps some names changed.
At the risk of being very controversial here, I think this is what really matters with this whole OGL kerfuffle. I get all of the technical, legal arguments about whether the OGL is irrevocable. But at the end of the day Dungeons & Dragons, the trademarked brand of a ttrpg, belongs to Wizards of the Coast. I don't believe that they have some positive obligation to allow people to play in their sandbox, let alone do so under any particular terms. Nor do I think they have some obligation to allow VTT makers to be able to provide a platform for playing D&D. But to the extent Wizards was going to use these OGL shenanigans to try to shut down or hamstrung their once and/or future competitors, that to me is fundamentally unfair, and is a problem for the ttrpg industry as a whole. If you don't like the terms under which Wizards allows you to make One D&D content--and I don't blame you for not liking those terms, to be clear--the proper response is to play a different game. The good news about OGL 1.2 is that I think the draft text suggests that Wizards is far less likely to be positioned to prevent people from pursuing alternatives. That's a reason to be celebrate.
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