The OGL Fiasco. Did we get lucky?

[Torque2100]

Now that the dust has largely settled, I think we can say that the outcome was for the most part positive. The OGL 1.0 a and c remained in place. Those who wished to continue using them were free to, though I think most of the industry is moving to truly open game licenses like the ORC.

That said, there's an intrusive thought that keeps popping up. Did we get lucky?

What if WotC didn't back down? What if the WotC management response was to double down. "I don't care what the internet says. Pedal to the medal, and if they won't sign sue the bastards." I can't help but think that WotC would have come out in top. There'd be some complaints, but really no one in a hobby industry really has the resources to go toe to toe with Hasbro's lawyers. If they hadn't blinked, Hasbro could easily have secured a de facto monopoly on TTRPGs, forced even Paizo into line and ruined dissidents by nuking product libraries.

What do you think?

 

[Endless Flight]

If they had continued that trajectory they would have won the battle but lost the war.

 

[David Johansen]

If the goal was forcing everyone into using one D&D they lost the war already.

 

[xanther]

You think the war is over? Whatever drove this has not gone away and it won't be forgotten. They'll just lay better ground work next time and there is nothing from stopping them to start slowly changing the OGL terms more to their liking. Building anything on such a free at-will license is building on sand.

Not to wish ill or bad luck on anyone developing games, but I'm personally sick of d20 and basically reskinned D&D being the majority of games out there. Would make me happy to see people differentiating their games enough they don't need the OGL, which in a lot of cases they may already have.

 

[Sable Wyvern]

WotC, and TSR before them, have never had any real power over me or my group, at least not since I started running MERP on my 13th birthday back in 1987.

I've played some D&D and D&D-derived systems since then, but I've never been short on options.

As far as I'm concerned, the hobby as a whole doesn't need and can't be meaningfully hurt by WotC (although there may be potential for some short term shock among people who have been convinced D&D is the hobby). The industry may be another matter, but I don't really care about the "industry" one way or another.

Of course, my opinion the matter is probably worth about as much you just paid for it.

 

[Voros]

TSR during the Gygax and Williams eras were both famously quick to threaten legal action on any third party D&D content.

So the attempt to tighten copyright or whatever wasn't particularly new or shocking and will likely be a blip in the history of D&D and rpgs in general.

I doubt if the WotC suits had gone all out they would have succeeded in shutting down the endless flow of D&D deriviatives. More likely they would have just continued on, perhaps mostly via piracy channels.

My hope would be that the whole thing would have encouraged more people to play something other than D&D. That may have happened on the margins but I'm not sure of the impact or longevity of any of it.

It doesn't matter to me much that D&D will continue to chug on as the Taylor Swift of rpgs as long as the Lingua Ignota of rpgs can make a good living putting out something different.

 

[Agemegos]

WotC, and TSR before them, have never had any real power over me or my group, at least not since I started running MERP on my 13th birthday back in 1987.

Likewise. I gave away my DMG, PHB, MM, and DG shortly after I bought The Fantasy Trip in 1982, and since them have really felt as though the moustache-twirling shenanigans of D&D's various owners over the decades didn't affect me at all. Whoever is getting lucky and whoever is getting lucked in this soap opera, it doesn't seem to be me.

 

[Turkey Lurkie]

Now that the dust has largely settled, I think we can say that the outcome was for the most part positive. The OGL 1.0 a and c remained in place.

it really doesn't matter because you can take the SRD stuff and make a D&D game functionally identical to the original without needing the OGL. The OGL restricts more than it frees. It was an "Emperor has no clothes" situation legally. Which is why Hasbro dropped the matter.

 

[David Johansen]

You think the war is over? Whatever drove this has not gone away and it won't be forgotten. They'll just lay better ground work next time and there is nothing from stopping them to start slowly changing the OGL terms more to their liking. Building anything on such a free at-will license is building on sand.

Not to wish ill or bad luck on anyone developing games, but I'm personally sick of d20 and basically reskinned D&D being the majority of games out there. Would make me happy to see people differentiating their games enough they don't need the OGL, which in a lot of cases they may already have.

To be fair only one of my games is OGL and I haven't done anything with it in years ;-)

As far as I'm concerned, the hobby as a whole doesn't need and can't be meaningfully hurt by WotC (although there may be potential for some short term shock among people who have been convinced D&D is the hobby). The industry may be another matter, but I don't really care about the "industry" one way or another.

The problem is that most new players have heard of that D&D game and that's what they want to play. No substitutions or alternatives or also rans. Imagine the world of sports if the sports ball people thought like that.

 

[pawsplay]

If they had held the line, it would have been difficult for third party publishers, but game over for WotC. They would have faced multiple lawsuits, and every one of them would have an opposition with funding to go the distance, from everyone from Paizo to superfans to the EFF. Every copyleft organization on Earth would be throwing money at the anti-WotC side, so if it came down to a war of attrition with a settlement, the purely profit-driven WotC would have lost. If they had gone to court, they would likely have lost, with even bigger stakes. It's doubtful your average judge understands much about open licenses, or tabletop games, but the precedent has been set you can't copyright rules, so it's likely things would have gone against WotC... and in a sweeping way. To a layman, a beholder is just a playing piece, a toy.

 

[LikelyArrow]

I honestly think it's iffy whether they would have won any significant victories. While Paizo and Kobold Press are no Hasbro, I'm sure their legal team aren't slouches, and they would have had been able to call in the guy who wrote the license to explain its intent, as well as archived versions of WOTC's own webpages strongly implying if not outright stating that it could not be revoked.

I am not a lawyer, this is not legal advice, seek medical help if effects last more than three hours, but… while there's now precedence that "perpetual" does not imply "irrevocable," there's also precedent for a court issuing an estoppel on a party claiming similar distinctions of law in cases where one party has taken on significant financial burden or risks on the basis of a particular understanding of an agreement and the other party did nothing to correct their understanding. (In the case I'm thinking of, a man promised his daughter to pay for years 2-4 of her college if she paid for the first year, which she did, and then he didn't come through. Legally what he gave her was a "mere promise" and thus not enforceable, but the court refused to let him make that distinction given the financial hardship his daughter took on in the expectation of his keeping his promise.)

So if WOTC were to sue someone like Paizo or Kobold Press for continuing to sell material under the OGL 1.0, they could possibly (again, I'm not a lawyer) have WOTC estopped from bringing up the perpetual/irrevocable distinction.

(Edited for some typos.)

 

[LikelyArrow]

If they had held the line, it would have been difficult for third party publishers, but game over for WotC. They would have faced multiple lawsuits, and every one of them would have an opposition with funding to go the distance, from everyone from Paizo to superfans to the EFF. Every copyleft organization on Earth would be throwing money at the anti-WotC side, so if it came down to a war of attrition with a settlement, the purely profit-driven WotC would have lost. If they had gone to court, they would likely have lost, with even bigger stakes. It's doubtful your average judge understands much about open licenses, or tabletop games, but the precedent has been set you can't copyright rules, so it's likely things would have gone against WotC... and in a sweeping way. To a layman, a beholder is just a playing piece, a toy.

Oh, this reminds me: there's a pretty strong case that the OGL is an "abuse of copyright" — a legal term referring to attempting to use copyright to restrict things outside the scope of copyright. (For example, putting a condition in your EULA that your license of this software is contingent on your not distributing copies of the works of Shakespeare, which are in the public domain.)

Turns out when you dig into the language of the OGL, it doesn't necessarily give you permission to do anything you didn't already have a right to do (it only explicitly gives you a right to use the game rules, which are already outside the scope of copyright), and it does restrict you from doing things that have nothing to do with copyright per se (like mentioning the name of the "World's Most Popular Roleplaying Game"). And IIRC the legal remedy for abuse of copyright is losing all claim to royalties over the copyrighted work during the period in which you were committing the abuse — so they still get nothing.

 

[pawsplay]

Imagine picking a fight with... Linux. Not one guy, not one company, not one program. But every single lifeform on Earth that uses, or benefits from, Linux. The very concept of Linux.

That is the case WotC threatened to pursue. Not hypothetically, but actually, calling into question the very idea and validity of copyleft.

 

[Sable Wyvern]

The problem is that most new players have heard of that D&D game and that's what they want to play. No substitutions or alternatives or also rans. Imagine the world of sports if the sports ball people thought like that.

I may be an outlier and unusual here, but in the better part of 40 years I've never looked for gamers in the wider community, so what some random gamer wants to play has no effect on me. My group consists of people I already knew, who I've invited, or people known by existing members of the group and invited by them. I've had one new-to-the-group but experienced player baulk, but that wasn't because they wanted D&D only, and instead that OSR specifically wasn't for them (and they were entirely willing to give it a go).

If you don't rely on the wider gaming community to create gamers for you, you're not stuck with what the wider gaming community provides.

 

[Turkey Lurkie]

Would make me happy to see people differentiating their games enough they don't need the OGL, which in a lot of cases they may already have.

You can make a D&D clone without the OGL. There is almost 0% IP in the SRD. That's why Hasbro dropped the attack. It had no teeth

 

[Dammit Victor]

Imagine picking a fight with... Linux. Not one guy, not one company, not one program. But every single lifeform on Earth that uses, or benefits from, Linux. The very concept of Linux.

That is the case WotC threatened to pursue. Not hypothetically, but actually, calling into question the very idea and validity of copyleft.

Not just Linux, not just what we think of as "open source" software. The manufacturers of every CPU, GPU, motherboard, mobile phone and tablet computer since the late Seventies. They would have been declaring war on the 21st century. It would have been very, very bad for the entire tabletop roleplaying industry before and after ninety-nine percent of it abruptly turned into a smoking crater.

What happened... really was the best possible outcome, but it also... wasn't the most likely outcome by a thin margin. (Speaking purely from hindsight. At the time, I panicked.) Someone would have eventually talked the executive parasites at Hasbro out of committing suicide-by-tort. If they'd pressed forward, it would have never gone to court-- they would have sent out a lot C&D letters, that most recipients would have honored, but the real damage would be forcing DriveThruRPG to take down a lot of "infringing" products and putting them in a tight spot between Hasbro's lawyers and the vast majority of their customers. It would have broken the kneecaps of this current surge in D&D's popularity and... done a lot worse to Paizo and their third-party ecosystem and the entire OSR.

There's... really no way there could have been a better outcome. Hasbro has tried this before; they're not capable of acting in good faith or learning from their mistakes and they are going to be an existential threat to the entire tabletop roleplaying industry for as long as they own the majority of it.

 

[Turkey Lurkie]

There's... really no way there could have been a better outcome. Hasbro has tried this before; they're not capable of acting in good faith or learning from their mistakes and they are going to be an existential threat to the entire tabletop roleplaying industry for as long as they own the majority of it.

Naw, they hardly own anything except Name IP. One could put out a clone of every game they make without any legal liability.

 

[Dammit Victor]

Are we doing this again? Hasbro can afford to lose in court against every single OSR publisher; not a single one of those publishers can afford to win.

The law doesn't have to be on their side if the court system is.

 

[Turkey Lurkie]

Are we doing this again? Hasbro can afford to lose in court against every single OSR publisher; not a single one of those publishers can afford to win.

The law doesn't have to be on their side if the court system is.

Nope they cannot. They were already sued and destroyed by the VAST majority of State AGs for that illegal practice. They CANNOT afford another such legal fiasco in Fed Court. Best to do a couple minutes of research before posting legal opinions.

 

[Torque2100]

Are we doing this again? Hasbro can afford to lose in court against every single OSR publisher; not a single one of those publishers can afford to win.

The law doesn't have to be on their side if the court system is.

Which is why I'm honestly kind of stunned that Hasbro backed down the way they did. WotC would have been in a much stronger position is the executives had demanded full steam ahead.

That said, in the longer term WotC would have kneecapped the momentum of the D&D craze and created a huge Cadre of extremely pissed off consumers.

 

[Turkey Lurkie]

WotC would have been in a much stronger position is the executives had demanded full steam ahead.

No, they would have been heavily fined in Federal Court with the cases dismissed. That is not a stronger position.

 

[TristramEvans]

Now that the dust has largely settled, I think we can say that the outcome was for the most part positive. The OGL 1.0 a and c remained in place. Those who wished to continue using them were free to, though I think most of the industry is moving to truly open game licenses like the ORC.

That said, there's an intrusive thought that keeps popping up. Did we get lucky?

What if WotC didn't back down? What if the WotC management response was to double down. "I don't care what the internet says. Pedal to the medal, and if they won't sign sue the bastards." I can't help but think that WotC would have come out in top. There'd be some complaints, but really no one in a hobby industry really has the resources to go toe to toe with Hasbro's lawyers. If they hadn't blinked, Hasbro could easily have secured a de facto monopoly on TTRPGs, forced even Paizo into line and ruined dissidents by nuking product libraries.

What do you think?

I think you are giving them way too much credit. D&D, despite being the 800 lb gorilla in the hobby, has never possessed the power to create a monopoly on the ttrpg industry. That ship sailed in the early 70s (meaning they would have had to kill the hobby from the start). Hasbro can go bankrupt tomorrow, and the hobby will chug along just fine.

As for "no one in a hobby industry really has the resources to go toe to toe with Hasbro's lawyers", before the resolution several companies were already discussing plans for a class-action suit. While a single company might not have the resources, pool a few together. I honestly think that the reason Hasbro caved wasn't because they cared about the people bitching on Twitter, rather that their lawyers looked at the likeliest outcomes of putting the OGL before a judge and decided that they were on very shaky legal grounds, and had a better than not chance of losing more rights (as the OGL is itself a slight bamboozle, offering something that, in some legal interpretations, was a right people already had in exchange for giving up other rights).

 

[War_lord]

Yeah I think people really really really overestimate the idea that Hasbro can just tank losing lawsuits. Having more money than your opponent is certainly an advantage in civil court, and it can win you contested cases in civil court. But little guys can win and judges have a low low tolerance for big companies blatantly trying to exploit the courts. As others have pointed out, the OGL was always something of a legal slight of hand and PR shenanigans, very little of what makes up D&D is actually defensible as ip in court based as it is on mythology, pulp fantasy and concepts that were maybe once defensible but have been genericised for decades.

If Hasbro had kept trying to push 1.1 they would have wrecked WoTC's reputation even further and gotten into endless legal battles with smaller companies that would have further sunk the brand. Someone further up realised that and that's why they backpedalled hard.

 

[Degeneration roller]

It wouldn't have changed much for me at least, I don't play 5e nor I plan of buying anything made by WoTC, that was even before the whole OGL fiasco, frankly, I think it has been benefical for everyone involved, now even smaller authors know that they can't trust the OGL and will look for other alternatives, therefore furtherly diminish the hold WoTC has on the hobby.

 

[pawsplay]

In case some of you missed it, the OGL fiasco brought the attention of the Electronic Frontier Foundation.

Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators

The company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of the game.

www.eff.org

We're not talking about Jenny & Rick's Ye Olde OSR Dungeon LLC, we're talking about WotC going up in court against people with potentially large war chests, with amicus briefs being filed by spokepersons for some of the most important technology of the 21st century. Those little OSR guys would become the Rosa Parks of IP law.

Like I said elsewhere, it's like they get tired of sunshine, and decided to sue the Sun by calling into question the concept of daylight. It's like in Discworld where they got together and hire Mr. Teatime to try to kill Death. It's like WotC saw that meme about the entire Internet being supported by one little brick being maintained, without pay, by some obscure webforum haunt in Idaho, and they were like, let's take out that guy.

 

[Turkey Lurkie]

We're not talking about Jenny & Rick's Ye Olde OSR Dungeon LLC, we're talking about WotC going up in court against people with potentially large war chests, with amicus briefs being filed by spokepersons for some of the most important technology of the 21st century.

Not to mention from the majority of the AG's in the US states many of whom would also file their own suits in Fed court against Hasbro

 

[Nakana]

I'd say... for the time being... WoTC is lucky. But, their clock is ticking. More and more people are turning away from what I can see (and not quietly I might add). D&D is still the biggest rpg brand, but that is merely a gateway for people to discover other games.

It is 1998. WoTC is Microsoft and it is really their customers that are the ones that will ultimately lose out. ORC is the equivalent of Netscape's (notice my avatar) source code being released.

 

[sharps54]

Maybe, we’ll have to see how 6th edition D&D goes over. I wouldn’t count them out yet even if I’m not a fan and the only reason I don’t want them to go under is because I want TSR era PDFs to remain available.

As for ORC I find I interesting more than one lawyer in the industry is skeptical of it and I’d be careful before trusting it as the true fix.

 

[Nakana]

Maybe, we’ll have to see how 6th edition D&D goes over. I wouldn’t count them out yet even if I’m not a fan and the only reason I don’t want them to go under is because I want TSR era PDFs to remain available.

As for ORC I find I interesting more than one lawyer in the industry is skeptical of it and I’d be careful before trusting it as the true fix.

Do you have the short version of what they’re skeptical of? I haven’t heard that and am genuinely interested.

 

[sharps54]

Do you have the short version of what they’re skeptical of? I haven’t heard that and am genuinely interested.

I’m not a lawyer but there are a number of videos on the Roll of Law YouTube channel, I believe their issues had to do with the lack of protections to someone using the ORC and how there are built in protections for Paizo.

While I don’t recall if Matt Finch, Mythmere Games / Swords & Wizardry, mentioned his specific objections he has developed his own sharing license for S&W instead of using ORC.

 

[hawkeyefan]

There are times when I wish that they had been able to get away with it, if only to see what many designers would then come up with.

Like if folks needed to stop leaning on the D&D system, what else might we have at this point? I don’t need anymore versions of D&D at this point.

I’m not really intrigued by most of the games that seem to be coming out in response from the larger publishers. I don’t know… having Agility instead of Dexterity and Defense Score instead of Armor Class doesn’t really seem that interesting to me.

I’d prefer to see entirely new games.

 

[sharps54]

I don’t think we need any more systems, we already have more games than any of us could ever play and honestly I’m sick of trying to keep up with all the new releases. I realize companies have to sell things to stay in business but I’d rather see new adventures, supplements and settings for existing games.

 

[robb]

I don’t think we need any more systems

But by this line of thinking we'd never have got Apocalypse World or YZE?

Whether you like them or not, they have both undoubtedly injected new life into roleplaying.

 

[sharps54]

But by this line of thinking we'd never have got Apocalypse World or YZE?

Whether you like them or not, they have both undoubtedly injected new life into roleplaying.

How so? Do we have testimony from people that left the hobby or were leaving and after life altering experiences with these games decided to stay? Even as I type that I don’t doubt you can dredge up such things but honestly I’m not so sure.

AW games give us very focused but also very limited systems designed to give specific experiences. That means you have to buy different ones for different genres and experiences. A good business model if nothing else.

As for YZE it’s a die pool system, nothing revolutionary there. They have some big licenses, most of which aren’t getting much support in the way of new material, and which will go the way of the dodo once those IPs move on as they inevitably do. Forbidden Lands has some interesting ideas and is praised but it doesn’t seem to have made big in roads against things like D&D, Pathfinder, and even the various BRP games although I haven’t seen the sales figures so it may beat the BRP crowd of games in sales.

I think we over estimate the new shiny, we have had story games and simulation games and mixes of the two since the early years of the hobby. Pick a system and play it. I bet you could take Forbidden Lands, strip our the rules, replace them with something preexisting, and it would still be a hit for the setting, random tables and whatnot.

 

[Akrasia]

It wasn't just the "internet" or people in the hobby who were upset with what was happening. WotC was getting bad press in mainstream media outlets as the OGL fiasco unfolded. Even my "normie" friends were mentioning it to me. And all this was happening shortly before they the movie and BG3 were coming out.

Anyhow, I can't speak for others, but I got "lucky" because the OGL fiasco made me decide to finally wrap up my 5e campaign (although I continued it -- using the non-WotC variant Into the Unknown -- for a few more months in order to bring about a satisfying end for my players).

I'll never run 5e D&D -- or any post-TSR version -- again. I already was annoyed by the system and uninterested in WotC's recent offerings. So the whole OGL crisis helpfully moved me to make a long overdue decision.

 

[arjunstc]

I may be an outlier and unusual here, but in the better part of 40 years I've never looked for gamers in the wider community, so what some random gamer wants to play has no effect on me.

You are definitely not an outlier.

My personal speculation is that there are three populations of "D&D players".

There are people who play TTRPGs (which may or may not include 5E), there are people who play 5E, and then there are D&D "hobbyists" who consume D&D media and merchandise, and may even buy their books and create characters and art of their own characters, but never actually play TTRPG.

Had WOTC proceeded with their OGL 1.1, it would have mattered little to the average consumer.

I tend to agree with those youtubers who speculate that Hasbro/WOTC are taking D&D on a divergent path from the traditional TTRPG. I see some parallel in this with Games Workshop trying to create a monopoly on GW "content" by going after fan created media, and when they killed Warhammer Fantasy and rebooted the franchise with Age of Sigmar with new trademarked names and aesthetics to deter copycats. Wargamers here will know that GW had recently rebooted the Warhammer franchise again by returning to the old format and even figures.

 

[sharps54]

BTW robb if you enjoy AW or YZE I’m glad they do what you are looking for and I’m glad they are there for you. But for me the only games I really would be sad to see go from this century are Dungeon Crawl Classics, Aces & Eights and Barbarians of Lemuria. And the honest truth is I could easily get get along without the first two. I do feel BoL provides the best sword & sorcery feel of any game I’ve played but outside of it all my favorite games are from the first three decades of TTRPGs and I think they can provide just as good an experience as newer games on the market.

 

[Malckuss]

WotC literally cannot afford any further legal issues.

In addition to several salient points regarding their unsteady legal footing and drawing really uncomfortable attention onto themselves, there has been a great deal of data come out in the past few months showing that HASBRO and WotC are running on financial fumes.

I think some of the maneuvering WotC was engaging in, including trying to lock in certain vendors into exclusive deals, was a fiscal move ment to offset some of these money troubles invisible to the general public.

The additional scrutiny, commentary in regular media including Forbes, market researchers and financial experts getting alarmed - which is what lead to their financial instability being revealed in a manner that goosed shareholders - there is no way they could have sustained a snowball fight that is essentially hurling attacks fueled by money.

They are almost out of ammo.

 

[sharps54]

WotC literally cannot afford any further legal issues.

In addition to several salient points regarding their unsteady legal footing and drawing really uncomfortable attention onto themselves, there has been a great deal of data come out in the past few months showing that HASBRO and WotC are running on financial fumes.

I think some of the maneuvering WotC was engaging in, including trying to lock in certain vendors into exclusive deals, was a fiscal move ment to offset some of these money troubles invisible to the general public.

The additional scrutiny, commentary in regular media including Forbes, market researchers and financial experts getting alarmed - which is what lead to their financial instability being revealed in a manner that goosed shareholders - there is no way they could have sustained a snowball fight that is essentially hurling attacks fueled by money.

They are almost out of ammo.

Which is why it is a little shocking they aren’t leaning more into the 50th anniversary. Limited reprints and the like. They should be reprinting those miniature AD&D rulebooks, those would sell.

 

[arjunstc]

Which is why it is a little shocking they aren’t leaning more into the 50th anniversary. Limited reprints and the like. They should be reprinting those miniature AD&D rulebooks, those would sell.

They just released a set of prepaintes minis to capitalise on nostalgia. They can't reprint the older books because those are "problematic" by their own ethos.