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:

However a few things are apparent.

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

1. Copyright
2. Licenses & Contracts
3. What the OGL is
4. What the OGL isn’t
5. What motivates corporations
6. What is not a victory
7. 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.

One area of misunderstanding though, is what it necessary for:

• Concepts like rolling a D20 and using modifiers to determine success, leveling up, etc
• Terms like “hit points” and “armor class” (both of which Dave Arneson lifted from a naval warfare tabletop game)
• Widely distributed or historical creatures and magic such as goblins, orcs, elves, magic swords, wizards, unicorns, hydras, paladins, dryads, bards, and flying carpets
• Making your own fantasy world or game which involves adventurers, dungeon crawling, etc.

Now the devil is in the details here – since you can still copyright in depth details about particular wide spread concepts (eg a very particular interpretation of elves such as high elves or the pale elves from Critical Role) and where it gets really complex is some concepts like tieflings where the notion of having demonic heritage is not unique, by the way it manifests may be.

Or to put it another way, you can’t copyright the notion of a wizard attacking by conjuring a ball of fire but you can copyright the paragraphs of text explaining how it works, the exact damage it does and that it requires sulfur and guano somehow. You can’t copyright the idea of evil elves living underground but you can copyright the purple-skinned drow (elf status disputed) who worship Lolth living in the Underdark under female supremacy with their particular history and key figures/characters.

So while its true a Virtual Table Top (VTT) like Roll20, Shard or Foundry wouldn’t need the OGL to make mechanics that happen to facilitate the running of a 5E game – the issue is they wouldn’t be able to include the specifics for any race, class, spell, etc and instead rely on the DM to hand enter the flavour text AND specifics such as how many dice of what kind of damage. It’s an obvious barrier to entry for new players and creates complications for the platforms (how do you search for a spell you know the gist of, but not the name or the wording of?)

And just for clarity here – there’s some confusion about what Open actually means – it just means anyone can opt in at any time. You don’t have to announce your intent, get an approval, etc. You can just sign upon. A common example of an open contract is vending machines – anyone can purchase an item at any time simply by supplying money and entering their selection. The offer is open and you need no application or permission to accept.

So is my particular homebrew unique enough?

I’m not touching that with a ten foot pole – as covered above I’m not your lawyer, I’m not a lawyer (at the time of writing) and the ultimate decider on any borderline cases would be a court of law. Cases are often influenced by what the marketplace looks like at the time, and the judge and jury’s (if present) understanding of the material.

Also standards vary from location to location, as does the options available. For example in New Zealand there is no “Fair Use” clause – but there is a “Fair Dealing” clause which is more prescriptive so at once less risky, but also more restrictive (it specifies what you can and can’t do, rather than letting you just take it to court and let a judge decide if its fair on… whatever basis).

Most of Europe uses the Civil Law system which I am not even going to touch because I know almost nothing about it.

This matters because, while say if I were to upload a document onto DriveThruRPG the dominant law would definitely be that in the USA, if Wizards of the Coast wanted to prevent me printing out books and selling them from New Zealand with a web site hosted here – they would need to take action in New Zealand under New Zealand law. (There isn’t really such a thing as International Law for small stuff like this – its for agreements between nations to make laws, not individuals over laws)

This is why its important to talk to your lawyer about anything risky you want to do. I am absolutely not accepting any responsibility for your decisions on that matter. Don’t trust strangers on the Internet.

So will ORC be a good replacement?

Probably not. At best it might inspire Wizards of the Coast to do better with their next OGL.

This section heavily updated thanks to feedback from Erik Mona and the Paizo web site finally being stable enough for me to read the Paizo announcement directly rather than through screencaps on other sites. (This is why you don’t trust anyone, including me, too much – we’re human and we make mistakes)

If you’re not already playing Pathfinder or Starfinder and do not intend to start: Not really, no. ORC is being developed by Paizo who own Pathfinder and Starfinder, two games which I am reliably informed are very fine and enjoyable but do not have anywhere near the audience that D&D does and will now likely have even stiffer competition for compatible products given that almost all the major publishers of D&D OGL products have announced they’re going to be using ORC.

Remember the whole value of the OGL was that it let you make products the were plug and play with D&D – not Pathfinder.

If you are already playing Pathfinder or Starfinder player: Nobody knows, particularly not at an individual level. Paizo haven’t released the system yet so its not clear what will or won’t be in it and how much it’ll cover… but odds are good that it will be both good and bad for you – because on one hand you’re about to get flooded with options for expanding your game etc.

On the other hand, you are about to get flooded with options for expanding your game. I mean FLOODED. Basically everyone who used to compete for D&D players who wanted indie products is moving in… so get ready for tons of stuff that isn’t just compatible, but is now written targeted at you – much of which will contradict other stuff also targeted at you.

They will presumably, unofficially make it compatible with D&D too but won’t really be able to announce it without issues.

ORC is supposed to be “system neutral” which isn’t a thing that I consider possible – systems define the reality of their game worlds after all. You can’t use the magic system of Mage: The Ascension in D&D because it would break the world, likewise a cosmic horror investigation game isn’t the same if you’re all geared up to kill everything.

But regardless, it’s not going to give you the same easy of publishing D&D content to share with the wider world, and its not likely to draw the same brand attraction. It is likely to create a lot of market issues since there will likely be a huge flood of products for a relatively small audience with limited potential for expansion.

But they can cancel the OGL at any time right?

Unclear and very complicated.

There are a lot of opinions from lawyer gamers on this and they’re all informed by their own biases and experiences, and this is like… legal text book that a judge would reference level complicated so I’ll summarize. The short of it is, to avoid liability and be safe they would need – at minimum – to set a schedule to prevent immediate harm to people how have works in progress or recently published.

The current OGL (OGL 1.0a) is a perpetual license, meaning it can’t expire. Some people have pointed out this is not the same as irrevocable (which is true) and others have pointed out that it does not include any clause about being revocable and the only grounds for termination is breach of the license.

There is also the issue that when the license was first offered to the public, there were numerous statements saying that it was intended to last forever and they wanted creators to have confidence using it. While not of those comments are in the contract itself, they go towards some important concepts in contract law.

Meeting of the Minds

There are three core elements to the contract in the Common Law (USA, England, Canada, Australia, New Zealand) are Offer, Acceptance and Consideration.

Offer can just be a wide offer to the public expressed in a public facing document, as was established in the very first case that created this principles: Carlill v Carbolic Smoke Ball Co (as a side note, in the English tradition “v” is spoken as “and”, not “versus”).

Acceptance is pretty straight forward (kind of) and just means that the party makes a clear, unequivocal sign of accepting the offer. (So in this case, making an OGL product and following all the rules about posting the license etc)

Meeting of the minds is the requirement that both parties actually agree what was on offer, and what was being accepted – and is usually decided by how the parties communicated to each other, and what actions the court finds happened (courts get to decide facts, as far as the court is concerned).

So if you go to court with archives of the web pages Wizards of the Coast used to have up saying it was indefinite and would never be revoked, your business reports on how much you spent on a new product including printing etc, the court is likely to agree:

1. There was a difference of opinion on what was offered (ie if the license was permanent or not)
2. The misunderstanding is the fault of Wizards of the Coast, who wrote the license and made the decision to deauthorize it
3. Wizards of the Coast is therefore obligated to either let you sell your existing stock to recover to where you would have been without the deauthorizing, or compensate you.

The implied covenant of fair trade and good faith

In a similar route, all law is subject to doctrines and covenants (that’s where you agree to do something as part of something else). One implied covenant (ie a clause you agree to whether its there or not) in Contract Law is that of fair trade and good faith, which basically means you can’t do any of those tricks you see the Devil doing in 80s cartoons.

The argument here would be:

1. Wizards of the Coast issued a license encouraging people to spend money on writing material, publishing it, printing hard copies, etc in order to make money for themselves
2. Wizards of the Coast cannot, therefore, deny people who have already spent that money the opportunity to recoup it via selling their products in a reasonable time frame
3. Wizards of the Coast must allow people to dispose of their existing stock and sell pdfs for a reasonable period.

However, in both the above cases, you would have no case if you could not show that the substantial work and expense occurred before Wizards of the Coast (not some anonymous leaker) announced the license was to be revoked. So eventually there would come a point where no more OGL 1.0a content would be released.

Enter into a Contract through inaction

For anyone in the issue, this would be the biggest risk – biggest reward approach.

As covered above, to enter a contract one must accept the offer – you can’t just be opted into it by default. To amend an existing contract, both parties must essentially enter into a new contract to alter the old contract.

The argument here would be since Wizards of the Coast released the OGL with no clause to revoke, has stated its permanent (as per Meeting of the Minds, things you say around the contract can guide interpretation) and left it operating for 20 years – they can’t really revoke it unless you agree to let them (presumably in exchange for a new improved SRD, wider exposure, etc).

This is the hardest to argue and would require extensive research into US case law to establish the likelihood of success, and also the only one that Wizards of the Coast would be likely to fight in court since a single person winning here would would the OGL 1.0a was permanent and irrevocable until the official collapse of the the United States of America or a re-write of their legal system.

TL;DR: If Wizards of the Coast can revoke the license, they almost certainly have to do so in a manner that prevents harm to people who’d been using the license in good faith for legal (and obviously PR) reasons. It would need to be an extended process and would warrant a whole post itself as the precise analysis would depend heavily on the approach they took.

So D&D why mess with it?

Well the OGL was written back when pretty much all role-playing game materials came in printed format and there were not flexible VTTs, no online stores where you could buy or freely distribute PDFs – the closest you could come was buying a CD full of RTF documents.

So when they say that the OGL 1.0a is out of date, they’re just right – and they do need one that can be updated because any OGL they make today will be out of date in ten years.

It’s also really good when companies do contribute to society by trying to use their clout to mitigate hate and bad things. In fact, I would personally say companies committing to this is more important than royalty arrangements for the top 1%.

But of course, they also have some purely selfish reasons for wanting the new OGL as well:

Money

The new OGL was to include royalties for the tiny portion of people who made products where the individual product sold over $750,000 in one year… and there’s good odds those royalties were what Wizards actually wanted to negotiate since their starting figures of 25/20% were probably not sustainable for most of the publishers but when you negotiate you start by asking for your best outcome first.

It makes sense from a corporate business approach since if you’re making a million dollars revenue off their property, they’d normally expect you to let them wet their beak – but further meaningful discussion is not really possible without know the the inside information of the parties that would have been impacted. This, combined with naïve belief that nobody would strategically leak the document to forward their own agenda, is doubtlessly why it was sent out in the first place.

Royalties are being dropped (apparently) probably both due to the backlash and that now everyone who would potentially have paid them has decided to leave the big pool and crowd into the hot tub that is…

No more Paizos!

Paizo, which I like to think of Wizards of the Coast writ small, essentially got its head start by using the combination of the OGL and the backlash against D&D 4E to launch themselves as the singular biggest competitor to Wizards of the Coast. Now, it should be stressed… but this I mean they’re one of the few competitors who has like, actual offices and stuff, and they are a competitor in the same way your local diner is to Denny’s. Wizards of the Coast towers them, and likely always will.

However, they are still redirecting profits away (and executives hate that), have since moved on to a point where they no longer need the OGL, and have a fanbase who can be counted on to pop up in social media telling anyone who has the slightest gripe with anything related to D&D to announce: “Just play Pathfinder!”

(Pathfinder fans, please stop doing it – for every person who gives it a try, you disgruntle twenty people against trying Pathfinder and just generally annoy countless more people).

Now Wizards of the Coast can’t stop anyone from making fantasy adventure tabletop role-playing games that primarily use a D20 and feature races like elves, dwarfs and sexy purple skinned dominatrixes – but they do want to at least make those competitors do their own legwork in writing the basics before they take the risk of barging into the market.

Hence, no subsidizing the competition.

Brand Protection

If you’ve visited my blog before it’s probably to laugh at the nuTSR or GiantLands fiascos, two instances of grifters with no meaningful connections trying to exploit the elderly survivors of the original D&D era for profit by claiming they’re more legit than the actual companies.

You may, or may not also be aware that Wizards of the Coast and the community in general has an ongoing problem with various people who have essentially made their whole identity:

1. That they are the true “owners” of D&D and so should decide what it is and who can and can’t play; and
2. Their reactionary politics that leads them to preach there should racism, homophobia, transphobia, etc in everything.

They’re small, but they’re vocal and they tend to do things like show their old books (or in one case falsely credit themselves with work that didn’t appear in books because they got fired for being a serial harasser) and while currently they always publish without any mention of Dungeons & Dragons – there is another bit I’m about to talk about which could inspire them to want to be semi-official again, if only for the clout.

Currently the OGL doesn’t have anything to stop you making despicable content, it was drafted in a time when it wasn’t controversial to say Nazis should fuck off and die. Wizards of the Coast wants the power to eliminate any products that try to piggyback off their platform to spread hate. If you’re wondering how blatant they are, well DriveThruRPG had to take down one product because it was outright hateful anti-abortion propaganda that likened abortion doctors to a cult that was buying the unborn and children up to three years old to use as human sacrifices. Yeah.

Which is good, but the exact method they decide what is and isn’t hate isn’t explained and would be important in the overall effectiveness of this project. I mean, nuTSR claim they don’t tolerate hate… see how that’s working out.

Official data catalog

Part of the new OGL was that everyone, whether commercial or non-commercial, was to register their product on a database at an as yet unconfirmed location that was probably going to be part of D&D Beyond.

Commercial products would have to register their sales every year so they could calculate the royalties, and Wizards of the Coast would have the right to republish in a manner that’s consist with them promoting them or doing news articles about their success, etc. This bit is also heavily misunderstood and people, particularly ones who are normally smart and careful, now preaching their misunderstanding is giving my headaches.

No right to reproduce and sell your work

A common thing being repeated by people with no experience in contracts or business was that the right to publish clause meant that Wizards of the Coast would have the right to sell your stuff or give it away without your permission.

This is not how clauses work. When they have a clause “for any purpose” there is the (obviously) implication that it is for any legal purpose – so if you haven’t given them the right to or they can’t do legally (as well as the whole meeting of the minds issue – good luck convincing a court everyone knew they were agreeing to this). They can’t use your work to frame you for murder, and they can’t sell it if they don’t have a right to sell your work.

Also, Wizards of the Coast would not want to sell your work because then they’re accepting liability for any potential issues with it – such as if it turns out you breached copyright, agreed to pay a writer royalties for each sale, used it to defame your ex or hid revenge porn in the art or an actual hate manifesto in the handouts. The whole idea of the scheme is you take all the risk, not them.

They could use it for any legal purpose such as promoting you, showing that your work is an example of what they love about the OGL or doing a brutal piece about “we do not support this sick filth” after they ban your product.

Substantially similar

Likewise there is a somewhat misunderstood clause about how if you use the OGL, you waive the right to sue Wizards of the Coast for making a product that is substantially similar – which will tie into my last point. But mostly what I want to cover is substantially similar does not mean “copy pasted”.

For example, Matt Colville’s immensely popular Strongholds & Followers, aka Strongholds & Streaming, product that launched on Kickstarter represents not just an issue for Wizards of the Coast in lost market potential (a bunch of people no longer have a demand for a book like this) but also a copyright issue in that if they did (and I’m not saying they do) have a book in the works about setting up for this type of play (which is a part of D&D dating back to 1st Edition AD&D) they would now not just have to make it a quality product – they’d have to make sure there’s nothing in it that is “substantially similar” to Matt’s book in order to avoid a possible copyright dispute.

If they were halfway done when the Kickstarter was announced, that can mean a lot of faffing about, delays and paying for re-writes… it’s not ideal. They can easily afford it, but it’s not ideal and it raises questions about their efficiency with the big boss at Hasbro who wants not just big profits, but the most profits.

The clause, interpreted most generously and PR friendly, means they just don’t have to cancel projects or deal with people saying the Official book on x is too similar to their fan made book on x. Combined with royalties, this was also no doubt an incentive to have the popular creators work with them to make official products like Critical Role did, rather than operate independently indefinitely.

Right to exclude

As covered above under Brand Protection, there are people who both want to make deplorable content and present themselves as the true face of D&D. They’re not big, they’re not particularly credible, but they’re vocal and they have a few tricks that could fool someone or make them a useful idiot for another group such as a political lobby.

Wizards of the Coast wants the right to not just say “we don’t know them” but to also say “if they tried to use our stuff, we’d say no”. They can’t censor them, but they would like to make sure they’re not enabling them.

Again this works great in theory, but could go terribly wrong very easy since perceiving hateful material can be tricky if you’ve never been the target of it, many hate groups use cryptic messaging (that means people sometimes replicate it by accident) and an outsider (or even someone within the group with different background) can easily interpret a very honest, earnest work from a person in the group sharing their anxieties or their lived experience as a hateful or spreading misinformation.

It’s tricky. (But also not a free speech issue, just fyi).

Market overview

The official data catalog means that Wizards would have the sales information for every product in the OGL, which in aggregate means combined with their own sales information they would have near supernatural insight into the nature of the market. They would be able to spot trends, up and comers, etc. and be able to use independent studios on the OGL to do the risky work of exploring different themes.

They kind of already do this with DMs Guild, but it’d be wider stage.

And keep in mind they have information not just relating to the games but also the books, tv shows, movies, video games, etc.

Information Asymmetry in negotiations

The market overview is also, traditionally, how publishers of books, movies, tv shows, streaming shows, etc make sure they win at the bargaining table 99% of the time.

Suppose you write a book of setting information, focused mostly around your romance novellas between an orc healer and a drow knight – and one day you get an email from Wizards of the Coast saying they’d like you to write an official product, and a book to go with it.

You’re negotiating from the standpoint that you know your stuff has done really well for an independent product, and being officially would boost you even more… but you don’t know how much or whether you’re better asking for money up front, royalties, your name in big letters, links to your personal store, etc.

Wizards of the Coast are negotiating with the exact figures on your sales, the sales of your competitors, the trends in the marketplace since they started collecting and the data to compare how unofficial products do compared to official counter-parts and even the exact price point at which sales for that type of product peak.

If they tell you the deal is the best you’re going to get, you’re unlikely to know better or to be able to show them you know better.

Do it anyway

So suppose you decide not to go with their offer – for whatever reason, or you want to but you accidentally become Twitter’s main character by sharing your opinions on the work of a competitor in a manner people interpret as problematic, so they withdraw the offer.

The most cynical interpretation of the “substantially similar” clause means that there would be, from a legal perspective, nothing to stop them going to one of your competitors, or a freelancer they hire regularly, or even an in house creator and saying, “Make us an official version of this, but with these changes…”.

The end product would probably be nothing like your work on close examination, but it could be similar in all the ways that matter for the purposes of riding the trend and meeting the demand in the market.

It would obviously be risky from a PR perspective, but it’d be possible and there are plenty of factors that could mitigate the risk:

1. You became Twitter’s main character and lost public support; or
2. Your product is old, and never sold well, but was the start of a zeitgeist (ala the works of HP Lovecraft); or
3. The parts that appeal are broad enough that they’d be able to argue you can’t own them; or
4. You have anxiety over these issues, or a simple lack of access to justice (ie a good lawyer who can practice in Washington state, USA, that you can afford), and would never work up the nerve to fight them.

All these are important factors because even if the current Wizards of the Coast would never do it, there’s no way of knowing of what the Wizards of the Coast of 2030 might be capable of.

Conclusions

The leaked OGL 1.1 was almost certainly an early draft that was intended to get major publishers to individually give their opinion on the royalty terms so that Wizards of the Coast could set an royalty rate but also avoid publishers engaging in collective bargaining.

It correctly asserts that the world has changed a lot in twenty years, and has a lot of information that suggests Wizards of the Coast wants to tighten up brand control in the wake of reactionaries trying to co-opt D&D and also wants to engage in data harvesting so that they can maintain even more unseen control over the market.

If you’re small creator this was likely not going to impact you at all, and you’re probably not going to benefit from switching to ORC since now all the big players are in a much smaller playground and you will be tiny in comparison to them so likely get an even smaller share of an already smaller market.

Don’t trust anyone too much, including me, and always remember that in business like this – everyone has an agenda, including the person who strategically leaked the document and people who started the catch phrases and open letters etc. If you don’t do the thinking for yourself, you can always be sure someone else will and your conclusions will be to help them.