The OGL Fiasco (part 1) (Patreon)

It's been a month or so now since the end of the OGL fiasco. While I was actively posting news during it, once it ended I wanted to take some time and get some perspective before posting my full thoughts.

Also this ended up being a really long post, so I've split it into three.

You can find my conclusions in the second and third posts. But first, a brief history lesson and recap of recent events.

Early History of the game

Dungeons & Dragons has always been bigger than one company. TSR published the first edition of D&D in 1974, and as early as 1975 there were third-party supplements you could buy. These were largely welcomed as adding to the game's viability for players, and therefore its success for TSR. Only when a third-party overstepped the line did they feel the need to take legal action.

A Dungeons & Dragons cartoon ran in 1983, with production by Marvel Productions (yes, a subsidiary of Marvel Comics Group) and animation by Toei (who made some of the first anime back in the 1960s, and can still be found animating things like One Piece). That cartoon included a unicorn, and many of the same team who worked on that cartoon took that experience when creating the first My Little Pony, another Hasbro property.

The 1980s was also the height of the "satanic panic", a period where parents and others who didn't understand D&D thought their children were getting into devil worship or that the game encouraged kids to suicide. Various religious groups encouraged this idea, spreading misleading or simply false information about the game. It was a difficult time for D&D players.

It was also a difficult time for third-party creators because of a shift in TSR's attitude. They started suing third parties for what they perceived as trademark infringement. Starting with Mayfair Games in 1984, TSR became increasingly litigious, earning them the nickname "They Sue Regularly". This scared other publishers away, and no doubt hindered the growth of the game.

In 1994, they actually sent a C&D letter to all the fans who were running D&D-related websites, forcing them to remove a lot of their material. I can't imagine how much harm that did the game's public image.

In 1997, TSR was bought by Wizards of the Coast, makers of Magic: The Gathering. WotC they were themselves bought in 1999 by Hasbro.

The original OGL

If the new owners wanted to attract third-party publishers back, they needed to make clear that they weren't going to be as litigious as TRS. So with the release of D&D 3rd edition in 2000, WotC published the game under an open license as a legal means of determining what parts of the game could and couldn't be legally used by third parties.

The OGL covers the basic rules of the game, as outlined in the System Reference Document, or SRD; but it excludes setting details as well as "trade dress", ie anything that makes it look like an official D&D product.

Paizo started publishing both Dragon and Dungeon magazines in 2002 on official license from WotC (but not under the OGL). In 2007, in the run-up to 4th edition, this publishing deal was cancelled, so Paizo pivoted to publishing serial adventures for D&D under the Pathfinder name, using the OGL, and set in their own world.

D&D 4th edition was released in 2008, without the same OGL. Instead it used a much more limited license, known as the GSL. This edition wasn't very successful - I'm not going to get into the details of why here. A lot of people wanted to stay on the previous 3.5 edition, including third-party publishers. The same year, Paizo announced that they'd be releasing a variant of the 3.5 rules, also called Pathfinder, providing a form of continuity for players who didn't want to move to 4th edition. They were only able to do this because D&D 3.5 was released under the OGL, which continued to grant them rights to derivative works provided they followed the rules.

Pathfinder isn't the only game based on the OGL - there are plenty of others. Some are direct translations of D&D to new settings, while others are completely different games with only a tenuous connection. Pathfinder is notable because, for a few brief months and depending exactly how you count, Pathfinder sales were higher than D&D 4th edition.

WotC relented. In 2014, D&D 5th edition was released, returning to the OGL (with a very minor revision, 1.0a). This edition has been significantly more successful than its predecessor, and in the years since the game has exploded in popularity. Some credit this to Critical Role; or to its appearance in TV shows like Stranger Things; or to a number of celebrities who endorse D&D, names like Henry Cavill (Superman, The Witcher), Vin Diesel (Fast & Furious, Chronicles of Riddick) and Stephen Colbert (comedian); or to the 2010s being a time when geek culture was finally becoming more mainstream. I think all of these are factors. The fact is, D&D is bigger than ever, and the bulk of that market is 5e.

The new edition

In September 2021, Wizards of the Coast announced they were working on a new edition of D&D, due out for the game's 50th anniversary in 2024. They did everything they could to avoid calling this a new edition, instead stressing continuity and compatibility with 5e. The reason for this is obvious: they didn't want to harm sales of existing 5e books. They used the codename "One D&D" for the new edition, and while we don't know what they'll call it officially when it's released, they've firmly avoided calling it 6e.

The first playtest materials for One D&D came out starting September 2022. In my opinion, the rules changes are mostly positive, but do mark enough of a departure from 5e to justify calling it a whole new edition, whether they decide to call it that or not.

Fans wondered whether the new edition would use the OGL or not. In December 2022 they put out a statement saying yes, it would use the OGL, and while there would be some minor updates nothing much would change.

But something else that came out in December was an excerpt of an investor's call for Hasbro in which Cynthia Williams, the CEO of WotC, described D&D as "under-monetised". This vague statement made a lot of people worried about what the future of D&D would look like.

The OGL 1.1 breaks

On 5th January, Gizmodo journalist Linda Codega published leaked details of a new OGL 1.1. They weren't the first to publish any of these details, but they had a more complete set of details than anyone else, and the various leaks all up to a pretty solid story.

Wizards sent this out to select third parties under NDA, attached to contracts they expected those third parties to sign. It seems that basically everyone who received a copy decided it was urgently newsworthy and anonymously forwarded it to somebody. There were a lot of leaks.

To rub salt into the wound, the new OGL was sent to publishers on 23rd December - yes, two days before Christmas - and publishers were only given a couple of weeks to sign it if they wanted to publish anything for the new D&D.

What was in the new OGL, and why was it so bad?

The OGL 1.1 was significantly more restrictive than OGL 1.0 in a number of ways:

• You have to sign up to OGL 1.1 before you can publish anything for the new D&D. This is in contrast to the OGL 1.0 which you effectively sign up to by the act of publishing something.
• You need to report your annual income from D&D-based products, if your income is over $50k. Since OGL 1.1 explicitly de-authorized the previous OGL, that included ALL editions, not just One D&D.
• Wizards are entitled to 25% of gross revenue above $750k (or 20% if via Kickstarter, for some reason).
• Wizards have the right to terminate the license, shut down your product and demand you physically destroy all unsold copies of it.
• Wizards are entitled to use your product in any way they want, forever, including changing money for it.

So a publisher of D&D material could be forced to pay a large chunk of their income, enough to make their work unprofitable, then they could have their product completely stolen by Wizards.

Paizo's annual revenue is in the region of $23 million. Most of that is spoken for by their costs - for artists, writers, editors etc. The recent unionisation of their staff (which I support, unions are awesome) prevents them simply paying people less. Their operating profits are already thin. The sudden removal of $5 million per year would certainly drive them out of business.

At the other end of the scale, you have small publishers who run Kickstarter or other crowdfunding campaigns. If you're offering a physical product, like a book, then you've already factored production costs, shipping etc into your tiers; say your $50 reward tier involves $35 of fixed costs for printing, shipping etc. But if your campaign is more successful than anticipated you could end up owing Wizards a much larger percentage of that money than you thought. Suddenly your profit per unit has been wiped out, and what should have been a success for you has turned into a massive debt. You still need to deliver the product you promised, somehow, but a quarter of the money you need to do that has gone.

Nobody in their right mind would agree to terms like this.

Deauthorization

What made it so much worse is that Wizards wanted to retroactively revoke the previous OGL. The new license includes the words:

this agreement is… an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

This very specific wording is an attempt to "deauthorize" the previous OGL in its entirety, making any publication that doesn't sign up to the new OGL in violation. Every third-party publishing anything OGL-based would have no choice but to agree to the terrible new license. Needless to say, everybody else in the industry strongly disagrees with this interpretation.

Nobody could say for sure whether this was actually legal. Did WotC have the right to "deauthorized" an established open license? If they did, what would that mean for existing published content? For new content based on existing content? For games that that used the OGL even though they weren't based on D&D at all? Lawyers picked it apart, and while plenty of points were presented on all sides, the best consensus anybody could reach was that until the question was tested in court, nobody would know for sure.

A growing fear, though, was that WotC wouldn't even need to take the question to court. Their scale, and their capacity to drag out a court proceeding longer than anybody else could afford, meant that they were unassailable. Nobody in the community had the deep pockets needed to push though to a legal victory, regardless of how right they might be. This would give WotC carte blanche to bully their way through the competition, shutting down anybody that got too big, without opposition.

The fallout

When the news broke, the community reaction wasn't restrained.

First, people spread the word everywhere they could. Second, they explained at great length how bad the new OGL was, for creators and fans alike. Third, they picked apart the exact wording of the announcements, the OGL and the new license looking for holes in it - and they found them. Particularly once actual lawyers stepped in, the weight of evidence

The reaction among third party publishers was equally dramatic. The community of other TTRPG makers isn't easily united - rules lawyers love to squabble over details, after all - but this issue united them like no other. It quickly emerged, through a bunch of public statements, that the set of third party publishers would be united.

A significant turning point was when Ryan Dancey, who was vice president in charge of Dungeons & Dragons at the time the original OGL was written, came out in public to state that he, and everyone else who created the OGL, categorically did not intend for it to ever be revocable. He cheerfully explained this at length on a video stream with Roll For Combat.

A lot of people announced they were working on a new game system. Some of these are very much like D&D, while others are completely fresh.

Paizo did not announce a new game; rather they would spearhead an effort to make a new license for game publishers. They got a list of thousands of names on board, from the biggest and most impressive down to little people like me. Crucially, this new license won't be owned by Paizo, but by an independent body.

Added together, it became clear that any battle WotC faced would not be against a single third party, but against the entire community. And even if they took it to court, paid the money needed and eventually won, they do so at the expense of all their goodwill among creators and fans alike.

Fans voted with their wallets by cancelling their D&D Beyond subscriptions and not purchasing any more D&D products (though this was relatively easy, since they haven't put out a new product worth buying recently). Local game stores cancelled their Adventurer's League sessions, replacing them with other games.

The climbdown

Faced with this reaction, Wizards published a series of response. The first, on January 13th, was offensively smug and out of touch. The next response a few days later was more contrite, and the pattern repeated a few times. They released a revision that they called 2.0, which climbed down some of the most egregious terms but nowhere near enough.

A new name appeared attached to the posts: Kyle Brink, the new face of D&D.

Crucially though, despite the apologetic language, at no point during any of this did they fully admit to how badly they tried to screw over the entire industry. They kept referring to the leaked OGL 1.1 as a draft (which we know it isn't), and talking about how they needed to do this to protect the community.

On 19th January they published a new draft, now called 1.2, along with a call for feedback. Even though this seemed like the most reasonable version yet, a close reading found the new license was still full of staggeringly bad terms. One of the worst was the morality clause, that forbade anything "hateful or obscene", while reserving for WotC the power to define what that meant - meaning, in practice, that they could shut down any competitor while labelling them "obscene".

Finally, on 27th of January, they gave up. They admitted that the feedback they'd received was overwhelmingly negative. WotC would leave the 1.0a untouched, while also publishing the entire 5.1 SRD under a Creative Commons library.

The Kyle Brink apology tour

In early February, Kyle Brink gave interviews to a handful of podcasts and YouTube channels. Curiously, they chose a variety of smaller and less-formal channels - instead of The Character Sheet or WASD20, they picked Three Black Halflings, Ginni Di and Bob World Builder. They're a bit repetitive, so if you want to watch one I'd suggest Bob WorldBuilder's interview.

Kyle was clearly very well rehearsed: he gave largely the same answers to all of the interviewers, delivered his lines very smooth, sounding casual without ever being caught for words - even though the interviewers insisted on not supplying the questions in advance. Every answer he gave struck a careful note of conciliatory while still downplaying their wrongdoing. Kyle is doing hard work to rebuild the brand. I don't know how he personally feels about anything, because his replies were clearly prepared for him. He's basically just a good actor.

Amid the platitudes, we did learn a few things from the interviews: the new OGL was in the works for a couple of years before the 1.1 was sent out. So far nothing has fundamentally changed about the management structure at WotC. The plan for their new VTT is still going ahead, including the microtransactions.

They still refer to the leaked 1.1 document as a draft, sent out for feedback, which is still a lie. Kyle's choice of words here attempts to play with the meaning of the word draft, insisting that "anything not published is a draft" and also that "any contract is a draft until it's signed", which is only technically true. It fails to address the fact that the OGL 1.1 was sent out to third parties in the expectation that they'd sign it as is. It wasn't the first step on a road of discovery, it was 100% WotC's intention.

One last, interesting detail: when asked about the OGL and SRD for One D&D, he referred to it as the "5.2 or 5.3" SRD, underlining that they insist on this being an iteration of 5th edition. This suggests they won't even have the decency to call it 5.5, but will insist on it being the same game as 5e. This stands in stark contrast to the playtest materials, which are a significant departure from 5e.

How could all this even happen?

In the course of all this, some facts emerged about life inside Wizards of the Coast. There seems to be a division between the actual creators, who are mostly well-meaning, enthusiastic people who want to make a better game; and the management tier sitting above them, who have a very different perspective.

Cynthia Williams, the president of Wizards, isn't involved with the actual brands at all. Chris Cao, the head of Dungeons & Dragons, has never played Dungeons and Dragons.

Meanwhile, many of the leaks we've received have been from Wizards employees, risking their jobs because they believed that this was important. Many of them were as surprised and upset as we were by this whole affair, which was announced in January without consulting them.

So it seems clear that the management tier at WotC don't understand table-top roleplaying games at all. They think D&D is like a videogame, and intend to exploit it like that with subscriptions and microtransactions. They think the players have short memories and no loyalty, just like all the people on the internet who shout about how they'll boycott a videogame for some reason and can be seen playing it two weeks later. They think a shiny VTT written in Unreal Engine will soon be the primary way of playing the game.

Next: my thoughts

The next post will go into my thoughts, including how this was allowed to happen, and what the future holds. The third and final post will detail what this means for Dyslexic Character Sheets.