OGL 1.2, contracts and getting sued

Okay so Wizards of the Coast (“Wizards”/”WotC”) announced a new version of the Open Game License (OGL), the magical document that lets people publish material that is basically plug & play compatible with Dungeons and Dragons (“D&D”).

This has a lot of people rushing to give you their thoughts on it, even before they had time to read it – and the Free Speech crowd even had speeches prepared about how it’d be bad! I would like to say I’m doing this because I got asked to, but the truth is I’m doing this because my social media feeds have been an onslaught of panic mongering and misinformation.

My background

I have been a D&D player since Advanced Dungeons & Dragons 1st Edition, specifically my entry to it moving from Fighting Fantasy books by Steve Jackson Games to The Curse of the Azure Bonds game on the Commodore 64, which was a heck of learning curve for a 10 year old before getting to play with actual people in boarding school. I also worked for Wizards of the Coast back in the late 90s, early 2000s as a Community Manager (I moderated the roleplaying chat room). I am the current owner of, and have been effectively the primary community manager for Hitmanforum for about twenty years now.

Currently, I am a law student in New Zealand who also has extensive experience (10 years) working as a debt collector and substantial experience (5+ years) as a fraud investigator for online payment gateways. Now, if you’re wondering what a law student in New Zealand knows about laws in the USA – the answer is quite a bit since both use the Common Law system which comes from England so have many things in common.

In fact, they have so much in common that when dealing with a novel case (ie one where there isn’t a clear precedent) the New Zealand courts will often look to the case law of the USA (though priority is usually given to case law from the UK, Canada, or Australia). This has even extended into occasionally incorporating U.S. common law… such as the tort of intrusion on seclusion.¹

So, general principles work the same (I could nerd out about the differences in case law, but suffice to say it’d be woefully esoteric) but it’s important for you to understand:

I am not a lawyer and make no claim to being recognized as one anywhere;
I’m not your lawyer and so the following is not individual legal advice;
In every case there can be facts, etc that influence the general principles;
Lots of law scenarios are “untested” in the sense nobody has taken it to court and gotten a final verdict;
No law is permanent, statutes (even constitutional ones) can be amended or overruled, the highest court in the land can overrule itself – law is always in motion

It is therefore pretty much impossible for anyone to give you an answer with complete certainty on the key matters relating to the OGL 1.0a, and anyone giving you a high probability answer should be able to cite US case law to substantiate it. Currently, I am confident nobody outside of lawyers working for game companies is doing that, because it is a lot of work to not get paid for.

I’m not hoping to give you a full education here or an official legal opinion – I’m just hoping to help you understand why you can’t just trust a YouTuber or a blogger who says “I’m a lawyer…” and then doesn’t really cite anything or an influencer who assures you that they definitely know what they’re talking about because they just do okay? At this point, there is so much misinformation and misunderstanding that it takes basically a primer on how contract law actually works. There’s going to be a lot of talking about legal doctrines and concepts.

Also in case you’re curious, not I don’t particularly trust Wizards of the Coast or any immortal corporation that exists primarily to make money and whose leadership can change at a moment’s notice – that’s why I read the document instead of just rubberstamped with happy emojis and stuff. I also did not do any serious case or statute research for this, so it is possible there are quirks and issues I am not aware of.

Again, it’s not legal advice. Don’t get personalized legal advice off a blog.

Executive summary of the OGL 1.2

It’s fine. It could do with some elaborating to make it easier for the layperson to read, but it’s fine.

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C v Holland [2012] 3 NZLR 672

The Open Gaming License (OGL), and what you (probably) missed during the outrage

So, a whole bunch of people are congratulating themselves for having helped Paizo increase their market influence through a new open license ORC (it’s… just a catchier term for OGL).

Naturally the Dungeon Hobby Shop Museum and Wonderfilled have the worst take on this:

A screenshot from the Facebook page of the Dungeon Hobby Shop Museum, it is an image of flat blue with text on it: "(Attention all Publishers) It isn't truly an open game License if you have to acknowledge the owner's illegal claims of owning a game system." — Apparently you can’t own a system, but Ernie is the divine heir of Dungeons & Dragons, so it belongs to Justin LaNasa’s companies… and definitely not the rest of the Gygax family because they very understandably do not support Justin profiteering of their name.

However a few things are apparent.

Most people who commented and campaigned on this, didn’t understand how any of the following work:

Copyright
Licenses & Contracts
What the OGL is
What the OGL isn’t
What motivates corporations
What is not a victory
What they didn’t see in the OGL because they were too busy screaming about royalties and repealing OGL 1.0a

So… it would take… forever, like college level text book length to explain all of that… so I’m making a primer from a law student who is not your lawyer and so definitely not giving you legal advice and my advice regarding firm statements on law is the same as my advice for rodeo riding: If you don’t know exactly what you’re doing, leave it well enough alone.

If you haven’t set, but you want to read the document for yourself, Stephen Glicker, aka Roll for Combat, made a sanitized copy available in the description of his video. One thing you’ll notice is there’s a lot of signs its an early draft (there are placeholders, definitions aren’t clearly spelled out, etc). So keep that in mind.

Now, I tried to explain this before and people… pretty much ignored it, and it’s heavy stuff so I don’t expect anyone to come out of it thinking they understand perfectly now. If nothing else, what I want people to understand is that it is more complicated than what people have been saying, and if someone tells you that they definitely understand it and it clearly means x… they’re probably wrong on both points.

The reason this is frustrating is when people get into the mob mentality they make decisions they later regret, both things like burning bridges or signing up for inferior deals, and in actively spreading misinformation and social pressure that leads to other people doing that.

I’m not here to tell you what to do, but I do want you do whatever you do for your own reasons and with good information.

What is the OGL?

This seems to be the biggest point of confusion since a lot of people seem to think the OGL 1.0a was useful for making all kinds of games – including games completely unrelated to Dungeons & Dragons like sci-fi adventure games etc.

What it actually is a kind of license to fan-wank provided that you don’t use particular terms and don’t impinge on Wizards of the Coast’s market share or use some terms they’d rather you didn’t for… strategic reasons I could get into later.

Things covered under the OGL include the basic character races, classes, class abilities, feats, spells, magic items and some monsters. These are all laid out in the Standard Reference Document 5.1 (or “SRD5” as it is officially known because… that was a really weird decision by the people who drafted it and the OGL).

It’s very convenient if you want to skip over a lot of work, but it is also very specifically for promoting D&D – and that’s why it’s there. If there is a bunch of stuff that is 100% compatible with D&D available – that’s more incentive to play D&D, even if you never use any of it. It seems cool and like they care about the fandom and that there’ll never be a shortage of material if you start to get bored or want a change of pace.

NuTSR’s recruitment drive and the Fall of Michael

From June 2021 to mid January 2022 – nuTSR went into a mission to try to build up credibility as a games company and recover from losing their flagship product as well as the individual they had given control of their social media presence to. Pretty much all of this effort would fall onto the shoulders of “volunteer” Michael Hovermale as Justin focused on talking things up and recruiting terrible people to make terrible products.

I put scare quotes on the volunteer because Justin and… accounts very defensive of Justin have always maintained that Michael was purely a volunteer who never expected to get paid – but as you’ll see he was doing an awful lot of work and putting up with awful lot of shit (including from yours truly) – so I’m inclined to believe this was supposed to be a “volunteer for now and then we’ll talk compensation” type arrangement.

Particularly given some later events involving some accounts called “Mario Real” but… more on that later in our story.

Side note: If this was professional reporting I would have reached out to people for comment, but since I didn’t do it while it was happening and I think there’d be rather massive differences in responses due to personal reasons. (Don & Michael would probably be happy to comment, I’m pretty sure Justin would not) Therefore all this is based on observation and public interactions.

The Official Discord

Before being promoted to head of PR, Michael had been the head moderator at the Discord and had implemented a lot of rules that were in place to try to keep the conversation entirely about games – and not about politics. These, ironically, would have been prohibitive of Justin being a member of the Discord – but Michael didn’t realize that yet.

A screenshot of the server rules for the TSR Official Community Discord.
"1 Respect each other harassment & bullying isn't allowed. This includes personal attacks, slurs, racist, sexist, homophobic, hateful or derogatory speech. Also don't attempt to create drama. It's not nice to make fun of others, let's make sure that this remains a safe and positive space for everyone.

2. No NSFW or obscene content. This includes text, images, or links featuring nudity, sex, hard violence, or other graphically disturbing content. A good rule of thumb is keep things PG-13. Discord allows members as young as 13 to join. If you're unsure if your post is "ok" you can ask a moderator.

3. Avoid sensitive or controversial topics. Real world politics, religion, race, gender, current (sensitive) real world events, depression/suicide, violence, etc. These discussions can easily turn into heated debates, which does not reflect the positive and inclusive nature of this server." — Ironically Justin would later demonstrate the only thing that stopped him breaking all of these rules was disinterest in his own “community”.¹

And I want to stress here, as misguided as it was to try to run a Discord about any role-playing game with no discussion of politics around it in the first place – given that invariably a part of world building in role-playing games is working out the politics, and the implications of your interpretations of those politics. Even something as simple as creating a “good” society means making political statements on what is encouraged and what is encouraged by “good” people.

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My Twitter, 8 August 2021 https://twitter.com/wincenworks/status/1424151599375519749