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 C v Holland [2012] 3 NZLR 672

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:

1. I am not a lawyer and make no claim to being recognized as one anywhere;
2. I’m not your lawyer and so the following is not individual legal advice;
3. In every case there can be facts, etc that influence the general principles;
4. Lots of law scenarios are “untested” in the sense nobody has taken it to court and gotten a final verdict;
5. 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.

It will doubtlessly improve as Wizards of the Coast spend more time tweaking it, elaborating on it, providing more non-legalese guidance etc. But as it is, it’s fine – 99% of people who use it would never notice any difference from the OGL 1.0a whether its the improvements, or the limitations. It also makes it clear they’re taking the necessary steps to outmode the OGL 1.0a in a generally responsible manner, to an extent it will be difficult for the vast majority of people to claim they’re harmed by it.

It has some clauses they might be an issue for a very small number of people, but largely it should not impact the work of the average person who wants to make conventional materials that are plug and play with D&D who will likely never come to the personal attention of Wizards of the Coast, let alone get into a lawsuit with them (or odds of ever even getting a formal notice are slim to begin with).

Largely a lot of the anxiety seems to be that people are under the illusion that Wizards of the Coast used to offer them an unbreakable, completely safe and almost obligation free licence to do anything they wanted with the core materials – and now they’re going to be offered one includes limitations and risks. The truth is, that was always the case, just previously there was a optimistic misunderstanding and misplaced trust in the intentions of the creators. You could accidentally fuck up with OGL 1.0a and if you did, Wizards could come for you – they said so right from the start.

The fantasy of a risk free, unbreakable contract that will always be for your benefit, offered by a benevolent power is a seductive one but always comes with hazards. Recent examples of it include NFTs and DAOs, Outsourcing to AIs, trying to become a professional YouTuber, and entrusting your investments to Bernie Madoff or investing in Theranos. It’s a common problem in humanity.

The OGL 1.0a wasn’t quite that extreme, but it was a substandard contract that was built on the assumption of trust in an era where everyone agree Nazis were bad, RPG materials and books almost always came in hardcopy (Kindles didn’t come until 2007), and when you said Virtual Table Top we thought you meant a Neverwinter Nights server (either the modern one, or the original).

OGL 1.2 isn’t going to be risk free, but only a few elite creators will ever be working at the scale where they come under serious risk – and those people should (as the licence suggests) hire a lawyer. Only a very few people would be excluded from it with no recourse other than an expensive lawsuit, and most of them are people who are ultimately harmful for the community.

We get a new version of D&D roughly every ten years, so it make sense we’re due for a new Open Gaming License and realistically we should expect Wizards of the Coast will look out for themselves first. We should also expect that Paizo will what’s best for them, and so will most major publishers. Rather than chasing the fantasy of a perfect licensing agreement that will guarantee us safe business forever, there should be a focus on better understanding of the business and guiding people to make decisions about mix and matching the use of licences as works best for them.

Also so people don’t get fucked over the next shiny “risk free, guaranteed benefit” offer.

So…

How do contracts?

Licenses (well these particular ones… law is complicated) are contracts, but what are contracts and how do you handle them? What happens if they are mishandled?

Well they’re agreements that ideally are made “at arms length” (ie without an coercion, manipulation, etc) for one party to do (or not do) something in exchange for something from the party (which may also be to abstain from doing something). Both parties must be in agreement on what those things are, and have an intent to be bound into the agreement.

• “I will give you one dollar for your candy.”
• “If you will just refrain, for once, from talking about Baldur’s Gate for the entire day tomorrow – I will agree not to go to the party tomorrow night.”
• “I will give you a candy to talk about Baldur’s Gate for an hour straight.”

Perhaps the most common misunderstanding though, is that contracts are not magical pieces of paper that can completely change the nature of reality and the law when you sign your name. They also do not have magical power to only ever be interpreted one way – lawyers get paid a lot of money to try to make them that way, but it’s a lot of work and never perfect.

A lot of layperson analysis of contracts tends to focus in on individual clauses and then try to divine some sort of singular, powerful meaning out of it that can have incredible long reaching consequences. This often leads to wild assumptions and catastrophizing – such as when people assume the “right to publish” clause on social media means Facebook can sell your photos – rather than just can host them on your profile page.

However, from a lawyer perspective – the entire document as a whole and everyone leading up to it is often more important, even if the document says it doesn’t. There’s also things that do magically appear there in the event of a court case.

What contracts actually are is an agreement, and so they are made up of everything that went into that agreement – including things joined to it and everything leading up to it. For some actions, a formal joinder is required (ie “I refer to the letter sent …”) but for other aspects just evidence of the communication is sufficient. Generally the more important, the clearer the evidence needs to be.

If you email Wizards of the Coast and say “Hey, under this – [link] if I try to publish my new book Goblins: The Spankening” will it be okay?” and include the text, guess what – anything they reply with counts as part of the process and hence is relevant to the contract, whether they like it or not.

There are also other aspects of them to – as I covered previously, the “meeting of the minds” can be critical but it doesn’t end there.

The limits of interpretation

Not only can anything that that is in the contract, or part of the process that leads to the agreement to the contract be included for interpretation as a whole – but courts can even decide that parts of the contract actually mean completely different things to what they say based on the prevailing evidence. A contract that says “You will pay by Tuesday.” can mean “You will pay by Wednesday.” if there is a specific date mentioned, a count of days, etc. Mistakes happen, and when they do, courts get to decide what the mistake is and what the truth is.

More commonly though, judges will interpret that there are unstated clauses about “within reason” or “in relation to…” where a contract is not extremely explicit, particularly if it is a unilateral contract (one you accept by participating) or simply drafted entirely by one party for the simple reason that it would not be rational for the other party to expect that understanding (or that they would have clarified if they had the chance).

Likewise, while anything before the contract can theoretically matter – nothing after you agree to the the contract can be considered part of the contract. So you can’t sign up for it and then be told “Oh there’s just a few more things…” with further agreement to those as additional contracts.

Now, some of this does however fall down in cases where there is very specific, clear wording. In 2011 there was a lawsuit that brought to light that MTV’s Real World reality tv-show required cast members to agree to some truly heinous conditions, and they were all spelled out clearly to make it 110% clear that it was agreed to and thus (argument goes) could be binding (though there were obviously other factors – law is complex).² Former Real World Reality Tv Star Sues MTV, Shocking Contract Provisions Revealed by Malcolm Wells, 13 November 2011, Fordham Intellectual Property Property, Media & Entertainment Law Journal http://www.fordhamiplj.org/2011/11/13/former-real-world-reality-star-sues-mtv-shocking-contract-provisions-revealed/ They knew “Lots of bad stuff might happen to you” wouldn’t cut it because that would be open to interpretation – the detailed specifics, much less so.

Illusory promises

In addition to issues of interpretation – there are also issues of if a statement even counts as part of an enforceable part of agreement, or if it is even enforceable “as written”. These can stem from a number of issues, and they can be complicated and often overlap with other aspects.

• Ambiguity/non-committal: “If you give me a dollar, I might give you a piece of candy.” does not make for a binding contract because they did not agree to be bound – just to consider it. However “If you give me a dollar, I will give you one minute to explain why I should give you a piece of candy.” is likely to be binding because what you’re buying is that minute of their time for that express purpose… but there’s not guarantee of you getting the candy, just that minute.
• Implied limitations: As mentioned, courts can often add clauses about “within reason” if there is a clear implication. This most often comes up with “no liability” clauses (you probably can’t opt out of gross negligence in manufacture on a product that is advertised as high quality or safe, for instance) or “satisfaction” clauses (where the courts will often find there must be a reasonable basis for the lack of satisfaction to avoid abuse).
• Absurdity: If there is obvious evidence that some part was a joke, hyperbole, etc then that will usually be considered impossible to enforce. “If you give me a dollar, I will give you this candy and teach you the chant that brings Freddie Mercury back from the dead. I am that good.”

Despite what you were told by Big Bang Theory, this is rarely simple. Many modern day contracts are absolutely full of these because, as mentioned, things are rarely tested in court and frequently the idea is simply to communicate the intent to you.

DM’s Guild says that they may ask to include your work in official Wizards of the Coast materials, because it could happen but they are absolutely not going to make it happen.

Social media sites say they can republish your content any time, anywhere, for any reason but what they really mean is they’ll publish it on the site(s) in a manner reasonably consistent with a social media platform, and maybe you might appear in an ad or a news feature for them etc.

Terms and Conditions often contain absurd statements to try to seem more interesting and make the owners seem like they’re cool and fun people in charge of the company. Because if there’s one thing we know, it’s that cool and fun people can’t be exploitative or otherwise bad people.

Bad faith/Unconscionable

Separate to this are the notions of contracts made in bad faith or in unconscionable circumstances. As I mentioned, both parties should be at arms length and have an intent to be bound, and they must engage honestly.

If one party intends only for the other party to be bound, or intends for the deal to be impossible to be binding – it cannot be considered a valid contract and the whole thing goes out the window.

Similarly, one party cannot knowingly exploit another party in a way to get them to agree to something that is entirely to their detriment, beyond their ability to understand the risk of, etc. This is why when there is a concern about a guarantor on a mortgage they may have to get legal advice, or even get a certificate of competency before a lender will accept their signature.

This is not to say a contract for a bad deal can’t be binding – courts are loathe to assess the quality of an agreement, particularly if there are aspects such as emotional value etc. You’re legally entitled to your bad decisions and to suffer under society’s unfairness. But just the bad deal has to be a legit bad deal.

As a general guideline, the worse the deal is to be for you:

• The more explicitly it needs to be spelled out for you;
• The more certain it needs to be that you entered into this knowingly and of your own free will

Remember how I mentioned MTV’s Real World? Yeah, when I said the conditions that were spelled out were truly heinous – it included things like you understand you might die, or lose a limb, or humiliated and defamed by MTV, or sexually assaulted, or catch an STD and oh if you got pregnant you needed to report it immediately so they could fire you. It also required them to basically forfeit all privacy.

So if you spot that kind of specifics and details, never assume that is just a joke, or “just there to make our lawyer happy” etc. Assume they absolutely, 100% expect that shit to happen to you and will tell you that you agreed to it when it does.

Fraud

No amount of bullet proofing, disclaimers, etc can get you out of fraud.

This extends to clauses where the contract drafter declares themselves the ultimate authority – particularly in a contract drafted entirely by one party, like the OGL – there still exists an obligation to follow the wording of that clause by that authority and meet any factual or agreed upon requirements.

If a contract for you to send in artwork says they will terminate it if you send in any pictures scary clowns, and they project lead will be the judge of what’s a scary clown – they cannot use this clause to terminate your contract if you haven’t sent in anything or only sent in text emails or only sent in pictures of puppies. They still need there to be you sending in a picture of a clown they can call scary (you can get a lot of leeway on subjective matters, but still needs to be believable to the court).

Not only does this potentially create an awkward argument in court – but it also opens up potential oblique avenues in terms of legal strategy. You don’t have to challenge the wording of the contract if you can just say the email that induced you to enter it was an act for fraud because it assured you they checked and it doesn’t say something it turned out it says, you don’t need to do that if you can point to it being in breach of another contract or right you have. Decisions like this, the exact point of attack for a lawsuit, are in fact often critical to the success or failure of the action.

Don’t do fraud kids.

What happens when we get sued?

Legal dramas, and legal comedies, tend to depict the entire process as amazingly streamlined and efficient. One date you step on a toe, the next you’re served, then you’re in a meeting room being deposed, then you’re on the stand, etc. The reality is… its a lot slower and less dramatic than that. For example, the actual court case for the TSR LLC vs. Wizards of the Coast LLC isn’t scheduled to begin until October – roughly twenty-two months after it started.

The exacts ins and outs are different for the kinds of civil actions – so this example will only cover what would happen in the event that Wizards of the Coast felt you were publishing something in breach of the OGL. Law works differently under different circumstances, but I presenting what I consider “likely” scenario unless you do something amazing.

Again this is not personalized legal advice. Don’t get legal advice off a blog.

Cease and Desist

First step is you will receive a very polite (in legal terms) letter telling you to stop what you’re doing and why they want you to do that. And I assure you it will be nice and polite and friendly because we’ve seen the full text of an email version of one of these to the buffoon who wanted to just pirate Magic: The Gathering and put it onto a blockchain so that he could claim to have created superior version of the game without any permissions or licenses etc.

https://twitter.com/mtgDAO/status/1491939395040997376

This is not just a courtesy (though this one is very courteously written, well done Carin Reynolds), this is actually a thing they need to do in order to avoid being liable for other issues down the line. They have to establish that this isn’t just a misunderstanding that can be resolved with a simple discussion.

If they find you in unacceptable breach, they need to notify you and try to mitigate the damage as well as make sure you are aware of it and can respond to them if you feel there is something critical being overlooked. I’m serious. Sometimes people reply to these and it leads to a conversation that resolves everything and gets them a good outcome.

But, more often people just stop what they’re doing – sending a response they agree to stop or just making it obvious by deleting all their stuff and posting a public notice etc. It is the point where you would politely, but firmly, explain your position to Wizards of the Coast and raise any defenses/concerns you have to see if they’re open to a reasonable compromise.

Initial submissions

If no agreement can be reached (you just stopping because you’re curled into a fetal position, rocking in the corner after sending an email that says “ok” may or may not count as an agreement), then there’s the process of serving which I’m not going into but basically the important part is – both sides need to tell the court their story in initial submissions.

The side taking action (plaintiff) will have to write up a full explanation that explains the background, how strong their case is, why they think its necessary for it to go to court and what they want out of the court case. It usually involves phrases like “on information and belief” (meaning they have good reason to believe this is what happened, but won’t say they can prove it 100% yet) and may include whatever evidence is necessary to convince a judge a trial is necessary.

The defence is then expected to respond with a blow by blow, admitting or denying aspects and then elaborate on anything else (or announce their counter-suit). If they don’t, generally the other side wins by default (unless thrown out by the judge…)

The court will then decide on its own if there’s merit to going ahead – so a huge part of disaster litigation tourism involves reading statements where it’s clear that the court is going to dismiss the action, so you aren’t committing to a long term disasters.

Perhaps an iconic case of why the court does this, is the case of Erik Estavillo vs. Twitch Interactive, Inc in which Erik tried to sue Twitch for “personal injuries” as a result of his excessive masturbation while watching sexy streamers. His case was dismissed because after multiple attempts, he was unable to provide a submission that showed an cause of action under California Law. That was not his first, nor would it be his last, absurd lawsuit and sadly we can’t sue him for going back on his promise he made back in 2009 to stop suing people.

This is why I intend to avoid becoming a court clerk at any cost.

Behind the scenes

So, all that above is public record – but there’s plenty of stuff that routinely goes on behind the scenes that is not.

Counsel for both sides will often be exchanging emails proposing alternative resolutions such as settlements, these are all kept in legal confidence (and both parties may settle at any time right up until it comes time for a verdict), often also exchanging information on a “without prejudice” basis.

In addition, courts will often expect parties to go to confidential mediation hearings so they can discuss the matter verbally and hopefully come to a faster, mutually agreeable resolution (or a conclusion in the case of the defence having an insurmountable advantage).

Other aspects can be raised, for example the Trademark Office case of Wizards of the Coast LLC vs. TSR LLC is on hold indefinitely after initial submissions because of the TSR LLC vs. Wizards of the Coast declaratory judgement case in Federal Court. That case is going to be handled very carefully because it could have implications for anyone with an expired trademark that appears on legacy goods they sell.

Courts only want to proceed with the trial if they are certain it is the proper course of action and all alternatives have been exhausted. Court cases are a big use of public resources, are expensive and time consuming for both parties, and can have vast reaching consequences after all.

Alternatives to lengthy trials

Obvious a fear every small creator has over an issue like this is that they’ll lose simply by lack of access to justice – not having enough money to pay their lawyer to wait out the whole fight and get an outcome, then having someone who is high and might over making violent wolf-themed pornography report they won and it was amazing.

But that’s not the inevitable outcome and this is why its good to have a baseline for this, so you – the person who knows all the facts – can bring possibilities to your lawyer who can advise if they fit into a sound legal strategy with the minimum number of billable hours possible.

If Wizards of the Coast is simply seeking to prevent you publishing something, then they would likely be seeking an injunction – the good news on those is the standard is very, very, very high and the they are extremely difficult to obtain without overwhelming evidence. All you need is one hole in their argument and the court will likely err on the side of caution.

If its a case over something you already published etc but there’s a critical issue – there may be a possibility for a motion to dismiss based on that critical hole. Generally speaking, courts want everything to be done right – but if a shortcut is proposed that will still be 100% right, they will take it. Most motions like this are something along the lines of “Even if 100% of everything they say is right, the other side cannot succeed because x means I didn’t break any laws.”

Settlements are also common in these scenarios, not just because the smaller party has concerns but because the larger party has more at risk. For you this could be a case with a lot of emotional importance, and relative financial importance – but to them it can be over million dollar projects – a simple and decisive “win” is very appealing even if it means them quietly compensating you once you agree to a confidentiality clause.

Pretty much nobody wants a drawn out battle, especially not a corporation who are primarily focused on making money and unlikely to recover any through bankrupting a small press business.

But whoever has the most money wins right?

Money is an undeniable advantage in the Common Law System – it gives you better access to more lawyers, you can afford to pay them to do more work, you can look better in court, etc. Being rich lets you get away with a lot of shit. However:

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

Anatole France

Believe it or not, this is the (not quite as effective as it should be) equalizer in Common Law – whenever the court makes a decision if something is legal, or illegal, that becomes binding for everyone. Therefore, courts are very reluctant to meddle in business matters – particularly if it could result in outrage from titans. A decision for Wizard of the Coast might make them and Hasbro happy, but could create huge backlash from a studio, an independently wealthy artist, an art collector, etc.

Judges are also required to explain their reasoning in legal terms, etc and all their statements become public and open to scrutiny by the public – with the exception of the Supreme Court, a public ridicule over a civic case can have negative implications for a judge – particularly if it is later overturned by a higher court.

So for this reason, you do have noteworthy cases where the smaller party wins:

• Gottlieb v. Tropicana Hotel & Casino Gottlieb v. Tropicana Hotel & Casino, 109 F. Supp. 2d 324 (2000) is an iconic US Contract Law case where a private couple went up against a billion dollar company and won in a jury trial that relied heavily on eye witnesses.
• Alex Jones is a millionaire with a strange addiction to buying Rolexs who has been losing court cases over Sandy Hook to families who probably have, all together a combined net worth less than his singular fortune (for now) before we factor in his family’s wealth.
• Former President Donald Trump has launched countless lawsuits directly and through other entities and been getting them slapped down or dismissed outright despite his fabulous wealth.

You may have noticed in those latter two cases – Jones and Trump have a tendency to be represented by lawyers who later facing disbarment (ie Norman Pattis and former Mayor of New York City, Rudy Giuliani) for staggering incompetence. That’s because competent lawyers will advise clients like these:

1. You don’t have a case so you absolutely should settle; and
2. If you don’t settle, there is very little I can do for you in court and you will almost certainly lose; and
3. If you say or do anything illegal or out of line, I will recuse myself and you’ll be on your own.

Obviously, they don’t like that so they keep shopping around until they get a lawyer who isn’t ethical and frequently, isn’t ethical because their lack of competence has put them in a position where those ethics are just inconvenient.

Companies that rely upon sound counsel will generally only go ahead if they have to, and they are sure of the outcome – so if you don’t make them have to do it, or they can’t be sure of the outcome… good odds you have some leeway to negotiate.

The actual OGL 1.2

Overall the document is pretty clear that it is about offering a refined, and actually in my opinion, more generous version of the OGL 1.0a.with a couple of clauses in there that should always have been there.

Noah Downs, aka MyLawyerFriend, (that’s his online handle, I don’t know him and he’s not my friend) has done his own write up on Medium and I do not disagree with it to any serious degree – but I also feel that he is very much approaching it as though he were counsel for “the community” (which means the community as he imagines it).

Creative Commons

The proposed license does put a very small part of the material under the Creative Commons 4.0 license – that means its not there yet, but it could be in the future. This is largely a pragmatic move on the part of Wizards of the Coast since the parts covered are the most generic aspects of the mechanics which would be hardest to argue copyright over, and are now so widely spread the actual ownership could come into dispute if there were even minor differences in wording.

This is from the introduction to the proposed System Reference Document 5.1:

It’s a nice gesture, but from their perspective it just lets them gloss over those parts without having to re-invent the wheel. It doesn’t cover any of the D&D properties like character classes, races (sorry, Tieflings are still a D&D exclusive) or anything that they would actually send a Cease and Desist over.

It just means that if you also make a game that makes heavy use of D20, terms like hit points, saving throws, strength, etc they’re not going to care and honestly – they already didn’t. The very generic terms used in the rules mean it would be extremely, extremely hard to argue over it.

This is, again in my opinion, probably why Paizo have been so gallant about being willing to fight Wizards of the Coast in court, the only things that they could be liable for are the things they’d almost certainly win and it is spectacularly unlikely WotC would raise a complaint against them in the first place.

So yeah, this part… not that amazing honestly. It’s not ground breaking. It’s not deceptive, etc. It’s just pragmatic.

Irrevocable, but cancellable and terminatable

New Open Gaming License does come with a clause saying it is perpetual and irrevocable. It also comes with a termination clause, which has confused a lot of people who are looking for excuses to be angry – so lets dive into what this means.

For all the talk there has been about how people like Ryan Dancey and Monte Cook are sure of what it was supposed to be – there’s very little discussion about why they didn’t do more to protect it back when they had both the authority to do so and would have been showing a willingness to stand up to their employer, rather than a company they’ve been separate from and/or competing with for ten plus years.

Areas to be covered under Creative Commons 4.0 will always be irrevocable, that part is inherent in the Creative Commons 4.0 which comes with its own rules about crediting and allowing others to use your work etc.

The rest of the SRD 5.1 is covered under section 2:

Meaning that this proposed notice could never be widely de-authorized by Wizards of the Coast, everything that is available for the public to use under it would be available until the end of the USA as we know it. Anyone, can come in at any time, moving forward, and make an OGL product by opting into the license and following the rules.

It does also have this other clause that reverses the right to revoke, under very specific circumstances.

If unenforceable or invalid?

Section 9 (d) includes a severability clause where part of the license is “held to be unenforceable or invalid for any reason” Wizards can declare the entire license void on an individual or absolute basis. Now it’s important to understand a clause being unenforceable or invalid is a very different situation from it not applying due to bad faith, fraud, etc. It’s not the court saying “it doesn’t apply this time” it’s the court saying “this can never apply”.

The odds of this getting invoked in this matter are pretty slim since it would mean that Wizards of the Coast has gone to court with someone, and the court has specifically stated the other side wins because the clause is unenforceable or invalid and Wizards of the Coast still feeds the need to prevent the person from using the OGL no matter the cost in terms of PR and follow legal matters.

I would like you to think about how bad an infringer you would have to be that Wizards of the Coast says, “It’s fine, we’ll be in the news for cancelling our own contract after losing in court… and we’ll have to pay them a shit-ton of promissory estoppel damages… and that’ll attract all kinds of litigation vultures… do it.”

This, more realistically, is a last ditch escape clause for if something absolutely buckwild happens such as the Supreme Court makes a ruling that contracts cannot be terminated on the basis of a party doing illegal or obscene actions (we’ll get into that later in this epic saga) – which seems ridiculous now but remember Roe V. Wade was impossible to overturn until it was overturned.

What about that termination?

Which is where the termination clause comes in, this is for individual products and creators who are acting outside of the agreement and claiming to be in it anyway. It’s important to understand that termination is not the withdrawal of the offer to the public – but rather the ending of the accepted agreement with an individual.

So if they catch you being naughty, they’ll send you a notice (or post about it publicly if you won’t supply contact details) and give you 30 days to fix it. Incredibly reasonable given how naughty some people are.

This clause is actually much nicer and clearer than the OGL 1.0a by the way, which doesn’t require them to give you notice, just for you to become aware of the breach, and classifies any failure in any aspect of compliance as the breach.

So theoretically, under the OGL 1.0a, if Wizards finds a product in breach for anything… no matter how minor, and finds someone told you on a forum or you made a tweet about “oops, just noticed” and you didn’t fix it – Wizards of the Coast could raise a case of prolonged breach of contract again you for the entire period past 30 days of that, even if they only found it yesterday.

Funny nobody talks about how under the OGL 1.0a they could theoretically demand years of sales revenue handed over if they find a breach and an incriminating post isn’t it?

I don’t think they would, because all the reasons covered in the contract section – but they could have a crack at it. Give it a red hot go, send you a scary letter. But in any case, if you’re worried about Doomsday scenarios with the OGL 1.2 – you should definitely abandon to OGL 1.0a now. Flee.

Not afraid of it? Well you shouldn’t have been afraid of OGL 1.1 or OGL 1.2.

By the way, this is also positively generous compared to Paizo’s Compatibility license which allows them to terminate a license at any time, for any reason and if they do give a “breach” reason it requires you to immediately not just cease sales but also destroy your inventory that has the logo at your own expense.

Safe?

Part of the reason this situation has been infuriating is that pretty much all the harm to the community has been done by members in the community who decided that “I have a source, trust me!” from someone who clearly had an axe to grind was undeniable proof and basically the equivalent of an official statement by Wizards of the Coast.

Which has led to this ridiculous situation where people are now screaming for Wizards to confirm if it’s safe for people to use OGL 1.0a… Wizards of the Coast confirms that yes it is safe, and people scream they’re lying, can’t be trusted etc.

Firstly you should never “trust” a corporation anyway, that’s why we have laws, contracts, licenses etc in the first place, to eliminate the need for absolute trust by providing recourse in the event of breaches of obligations. Corporations are not your friends, they’re imaginary entities that are commanded by individuals who can be replaced or hand over control at a moment’s notice. For more information on this topic – check out Twitter.

Secondly the entire threat to the community was invented whole cloth by people who do not not know what they were talking about but know that if they make it sound dramatic and play to their audiences fears and assumptions, it’ll catch on (particularly when for those who basically built their whole personality around being anti-WotC) – then it spreads to the people who believe everything because it’s exactly what they’ve expected to hear and then more people join it because that’s a big mob, they must know something right!? Seems to be a lot of Nazis and stuff but… I’m sure it’s fine.

None of which makes any sense, because if you actually believed that Wizards of the Coast could revoke the OGL 1.0a at a moment’s notice, you would never have believed you were ever safe. It’s just nonsense.

Stop getting your legal advice off clout chasing Tiktokers. And leave Ginny Di and Linda Codega alone. They’re good kids who just wanted to use their platforms to help their community. Get mad at the grifters trying to build their platform by scaremongering the community.

Wizards of the Coast never had the option to just nuke OGL 1.0a without consequence between of a lot of reasons, but key one was a very powerful doctrine in Contract Law.

Promissory Estoppel

I kind of covered this in the earlier post about the OGL, but there exists a wide concept within contract law… well specifically a doctrine, that if one party acts in reliance upon a good faith agreement that is later invalidated by the act of the other party – they are entitled to compensation for it.

I want to clarify here – this is not an easy doctrine to invoke and it can’t be used to prevent the the OGL 1.0a from being discontinued – it can only help those who’d been working under the assumption it would never be discontinued be appropriately compensated.

How this relates to the OGL specifically is that – until such time as Wizards of the Coast confirmed an intention to unauthorize the OGL – all work towards an OGL 1.0a product would be covered under this, and so is everything that you already made and published – which is why this clear exists in the proposed introduction to System Reference Document 5.1

This isn’t Wizards of the Coast being kindly – this is them just accepting the reality that they cannot retroactively deauthorize a license or do so with no notice and expect everyone to just suck up the damage – it would open them up to immense volume of complaints and essentially let people who had a bunch of OGL 1.0a stock that didn’t sell try to recoup their funds through “lost opportunity” case settlements.

“But their lawyers would get them out of it…”

Ah no. No, no they would not.

Promissory estoppel is sacrosanct in contract law, it is a pillar upon which calculations of damages and it has been confirmed as present and binding by the Supreme Court of the United States of America as recently as 1991.³ Cohen v. Cowles Media Co., 501 U.S. 663 (1991)

What this means in the Common Law system, is that no judge below the Supreme Court has any authority to say otherwise. To overturn this ruling, you would need to take it the Supreme Court and they are extremely selective about who they hear. They get thousands of requests per year, and usually see less than a hundred. They are not going to be interested in hearing about some bullshit with bunch of nerds arguing over who owns goblins with yellow skin.

Furthermore, if by computer error the Supreme Court of the United States did agree to hear the case where Wizards of the Coasts asks them to avoid having to pay a fraction of the court costs in compensation, everyone gets to weigh in on it. Everyone. That’s right, when these things go to the Supreme Courts interested parties may file briefs advocating for action or not. The greatest of which was filed by The Onion.

Do you really thing that the thousands of billion dollar companies that rely upon promissory estoppel so they can collect part payment when multi-million dollar projects go wrong are going to just nod along and go, “Yeah, fuck that guy for wanting to use that goblin!” before moving on? Do you?

Also consider the following – multiple former Wizards of the Coast executives who oversaw the drafting of the OGL 1.0a have come forward and essentially volunteered testimony that they understood it to be essentially irrevocable. Imagine trying to argue that wasn’t a good basis for reliance on that belief.

Though…

Now they’ve published this and their intent to make these kinds of changes – people who would make something that isn’t compatible with OGL 1.2’s intended goals are pretty much all on official notice that, at some point in the future Wizards of the Coast intends to withdraw the offer to use OGL 1.0a (which is fine under contract doctrine, so long as they don’t penalize anyone who accepted the offer before the withdrawal).

There will doubtlessly come a period where it becomes absurd to claim you made this under OGL 1.0a and just happened to publish it now, but I expect any action Wizards of the Coast takes will be from people trying to use this to bypass the next bit down the track with content they obviously created well and truly after getting notice.

To be honest its a very small group of people, because there’s really a very limited amount of people who may have prepared a product for OGL 1.0a and be unable to use OGL 1.2.

The Dreaded Morals Clause!!!

The other aspect that has been dramatized to an absurd extent is the “morals clause”/”morality clause” or just it’s allocation, also know as: 6 (f).

It’s quite possible you’re confused why anyone cares about this? Well it’s mostly four categories of people:

1. People concerned that Wizards of the Coast will misapply this power to suppress marginalized groups such as LGBT+ community or suppress people with opinions like “capitalism is bad”. This mostly cites some issues by the DMs Guild.
2. People who don’t like (obvious) inclusion and diversity efforts.
3. People who have benefiting from the outrage and are rushing to draw the longest bow to keep their clicks and metrics going, such as DnD_Shorts, the person who insisted they had verified information and it later turned out it was just office gossip and the personal gripes of a still yet unidentified person who is apparently in Wizards of the Coast.
4. Nazis & other hateful reactionaries (ie Shitbags)

Speaking of which, would you care to see how the discussion is going in the Paizo ORC Discord?

DMs Guild / Misdrection concerns

For those not aware, DMs Guild is a collaborative business between One Bookshelf (best known for DriveThruRPG) and Wizards of the Coasts where people are allowed to use more intellectual property than the OGL allows and potentially have their work incorporated into canon, and have it published on an official store front. There are of course, limitations and while those used to be “Nothing offensive or pornographic.” and are currently extensive and felt the need to include specifics on how they define incest, and clarification that handjobs count as sex for the purposes of depictions.

There have been a few instances with DMs Guild refusing to allow publications with titles with “shit” in the title (requiring it to change to “poop” and also made a similar issue with “anti-capitalist” to “anti-tyrannical”. It’s not clear what level made these decisions, whether it was from up high or an editor on a salary. These are just the risks you get into with this sort of situation.

This is not even faintly the same sort of thing, this is what you open yourself up to when you agree to let get into a more involved publishing deal where the other party will accept legal responsibility for the issue. The OGL 1.2 specifies that Wizards of the Coast is not accepting any legal responsibility.

I’ve seen people claim they blocked LGBT+ content too, but I couldn’t find any confirmation of that and currently the DMs Guild web site wants to sell you Thirsty Sword Lesbians… so, you can probably relax, for now anyway.

Those this is by far the most convincing argument for more elaboration/support on this clause, but in a nice polite way – not a “It’s evil! Rise up!” kind of way.

People who were upset about this though probably should be pretty concerned that Paizo’s own morality clause and the official stance is talking about a morality clause in ORC is a “waste of time” because it doesn’t fit the “common goals” that they’ve decided that the community has and needs to work towards.

“No Forced Inclusion”

Naturally there are people who want no morality clauses because they don’t want a private company to control morality and feel inclusion happens at the tables etc. This is pretty much the ongoing myth that it’ll all happen naturally, we just need to allow it and forget about everything that’s gone wrong.

The problems with this is that this a fantasy – companies are constantly pushing morality to us via narratives, stories, etc and leaving it unexamined means we basically let people think for us. It is impossible really to make fiction, particularly role-playing fiction that isn’t political and reflective of our values.

It’s as unrealistic a goal as eternal life, or an unbreakable, risk free contract that allows a path to perpetual earnings through creativity while outsourcing all the boring work to others.

Also ain’t nobody forcing you to keep the content inclusive, plenty of people immediately make the content racist, sexist, etc through their personal homebrew. Just it is going to have a stronger start if it’s there in the allowed materials, and Wizards of the Coast doesn’t want to enable it.

D&D has been incorporating active diversity efforts and is now bigger than ever so… I don’t think this will be terrible persuasive to Wizards of the Coast.

The longest bow

Now the most fundamentally dishonest group, the people inventing fanfics on how the clause is bad actually because it could be randomly used to brand an innocent person as unworthy.

You are a D&D content creator under OGL 1.2

You are happy.

One day you cross a street without looking: "jaywalking".

You have just commited illegal conduct. Under section 6(f) your OGL licence is revoked.

You are destitute. Your wife takes the dog. You pray for death #opendnd

— DnD_Shorts (@DnD_Shorts) January 20, 2023

Now, you don’t even need to have read my section on contract to know this is just an absurd take, but the actual wording around the content and the conduct. But if you read the bit on contract you should already be able to see the obvious issues here.

Any justification for using using this clause, because it is so open, is going to rely on it being justifiable to a court that they:

1. Agree the definition used (“obscene”, “illegal”, “harmful”, etc) was correct; and
2. That if fell within the reasonable expectations of a person hoping to be bound by the contract; and
3. It was consistent with the genuine intention of the clause (ie brand protection); and
4. They followed their own process of 30 days notice, etc.

So in order for it to make it worth Wizard of the Coasts time you would have had to have been, very, very naughty – like when Dave Johnson was removed from DriveThruRPG and the community celebrated. That’d be an example of the sort of “hateful” person.

For illegal we’d look at people like Andrew Tate, the Liver King, etc. Remember, this also requires Wizards of the Coast, at a practical level, to find out about your conduct and care enough to contact you about it and then deal with the drama that ensues when that person tweets about it and tries to start a hashtag.

This is a fairly common aspect of law, where if you look at pretty much any law or contract there is a lot of language where if you really want to – you can find multiple ways to interpret it and occasionally it does come up, but if you think any word can be stretched to any vague definition you’re confusing law school with sitcoms.

Also, for the purposes of moral consistency – if you’re worried about how the wording on this morality clause could be stretched, take a moment to look at the one below and think about how far it could be stretched (in theory):

Notice none of these people are worrying about what if you jay walk while carrying a copy of your new product, what if you miscalculate the tax and get a fine from the state, what Paizo says the art style in the product is not up to the standard for their trademarks so you didn’t make your best effort, or who decides what the general public considers offensive or inappropriate for minors, etc.

This is unlikely to be persuasive, but is likely to lead to further harassment of Wizards of the Coast staff.

Shitbags

These guys are the smallest group, but are the ultimate beneficiaries of the people the groups above because, they are the ones who are actually at risk of being excluded due to their terrible ways. They of course, come in different degrees, and Paizo’s ORC Discord already has one of the worst, and funniest:

Now, many of them proudly declare that they don’t use the OGL etc, and that is true – but the clause is still a threat to them, not because it would change this – but because it would mean they can no longer claim to be doing this by choice as some sort of hilariously ineffectual protest. That would greatly weaken their claims to be being “the real D&D community” etc.

But there are also plenty of them who just want to be able to publish stuff under the OGL and brag that they’re official, etc. Just like how the mtgDAO didn’t want to invent their own card game, they wanted to piggback on the clout that the defining game is… they just didn’t want to ask for permission or pay for it.

But what if!?

This section has also been the wildest speculation on secret agendas, based entirely on imagination so I thought I’d cover a few scenarios and how a reasonable person would respond before even bothering to talk to a lawyer. I do not expect that any of these would actually happen, in fact I am pretty sure they will not because I am aware of people who are in partnerships with Wizards of the Coast directly or indirectly who some of these could apply to and they’re doing fine. Historically, under policing of standards has always been a much bigger issue. (Also, don’t expect these to get you out of trouble if you’re trolling, etc.)

Issue: “Wizards of the Coast are going to terminate my license based on edgy content I did years ago!”
Reply: “Thank you for advising me of this, I understand your concerns and the importance of your brand in relation to your business, the strength of the brand also is important to those of use using the OGL. I have some differences in opinions on your assessment, but even if everything you say about ‘Chasing Tails and Infernal Abysses: The Wild World of Tiefling Butt Sluts‘ is true: that work is no longer in circulation and no longer reflective of the work I do now and intend to continue creating under the OGL. I am happy to give assurances that if it becomes an issue to the wider public, I will issue a statement as such and to review the matter now, but as is I entered into the license on the good faith assumption I would be judged on my work and actions today, not those from ten years ago.”

Issue: “Wizards of the Coast are going to terminate my license because I post adult content elsewhere!”
Reply: “Thank you for advising me of this, I understand your concerns and the importance of your brand in relation to your business, the strength of the brand also is important to those of use using the OGL. I also understand that as a creator, my identity is inherently tied to my creations, I feel this is unfair. The license specifies “obscene” and while some of the content I share outside the product may be graphic, erotic or even pornographic I am do not feel any of it rises to the level of obscene. Please advise me on the specifics on what content, and what aspects you feel are obscene so that we can better discuss this.”

Issue: “Wizards of the Coast are going to terminate my license over a minor breach of law!”
Reply: “Thank you for advising me of this, I understand your concerns and the importance of your brand in relation to your business, the strength of the brand also is important to those of use using the OGL. I also understand that as a creator, my identity is inherently tied to my creations, I feel this is unfair. While it is true that I did recently lose my license for drink driving – I do not feel this rises to the level of an offense that become relevant to the license – I am confident that in the past Wizards of the Coast has employed staff or freelancers who have also had a drink driving offense, and it has been a non-issue. Please advise me how Wizards of the Coast considers this specifically relevant to the license, what actions Wizard of the Coast takes to ensure other creators are not doing similar things, and why these standards were not elaborated on in the license.”

Issue: “Wizards of the Coast have called my book which features my real experiences as a … hateful.” (This is actually the one I am personally most concerned about)
Reply: “Thank you for advising me of this, I understand your concerns and the importance of your brand in relation to your business, the strength of the brand also is important to those of use using the OGL. I also understand that as a creator, my identity is inherently tied to my creations, I feel this is unfair. I understand my experiences and opinions are not what you were expecting from someone of my background, and that there are mine, they are authentic and my work is not one of hate but of confronting important realities – please advise me if there is someone who I can work with so that you can better understand the nature of my work, I would prefer it be someone with experience in dealing with people from marginalized backgrounds.”

What about this stuff?

Okay, now the bits and pieces which people are freaking out upon reading. Most of these are here almost entirely to safeguard against frivolous legal action and would not be effective in the doomsday scenarios people imagine.

9 (b) specifies that you’ll not refer to anything outside of the document, which seems to wildly contradict everything I said about contracts being many, many things and not just the documents itself. But as mentioned, this only applies if there is no bad faith, fraud, etc. So realistically it’s there to stop someone claiming a paragraph in the Dungeon Master’s Guide about “you can make this game your own” or a tweet by Matt Mercer is part of the OGL because it’s why they wanted to believe.

9 (e) is very standard for companies, in fact part of the law already. One point of hilarity of the TSR LLC vs. Wizards of the Coast LLC lawsuit was that Justin’s initial lawyer, who considers himself a subject matter expert, tried to sue Wizards of the Coast in North Carolina only to be told they don’t have jurisdiction due to regulations regarding Federal Lawsuits. If you want to sue Wizards of the Coast, you have to go to Seattle.

Pretty much every company does it because they don’t want to have their lawsuit budget exhausted by people demanding they hire counsel to appear in every state or have their internal team have to deal with the ins and outs of each state and country (Louisiana, for example, is notoriously… unique… for US state law, or at least so I’m told).

Waiving your right to class action is pretty standard, and is a clause that is fairly easily defeated if the class action can show in this case it’s likely an act of bad faith (ie the reason they put that clause in there wasn’t to protect against an unforeseeable scenario, but a class action they knew was coming eventually because they were doing something very bad).

Also it’s worth mentioning, this basically only applies to people wanting to sue Wizards of the Coast, or US residents outside of Seattle, or people using US businesses for their products. If I am in New Zealand, with a New Zealand hosted website and they want to take me down – they have to hire a lawyer in New Zealand. It’s just how things work. Even for people in the USA or using their web sites, Wizards of the Coast may have to use alternative courts due to issues like the jurisdictional amount.

9 (g) is pretty standard for situations where you expect there to only relatively small claims of a few hundred dollars and where money would be the only thing at stake. Jury selection is expensive and stressful, and while people in the USA do have a constitutional right to a trial by jury if the matter in dispute is twenty dollars or more… that amount was set in 1791… when that was more like $300 today and there was a lot less strength and watchdogging over figures like judges.

As with other waivers, it can only hold up if there is no argument against good faith – but honestly the only kinds of people who would potentially benefiting from this kind of action is Paizo because for almost anyone else, the costs of going through jury selection, adjusting approach based on that jury etc are going to be prohibitive.

Also to be honest, the value of jury trials outside of criminal matters or civil matters of massive amounts of money is very limited, they can very easily be more of an obstacle to the rightful party than an assurance of fairness.

3 (a) just means that if it turns out you and Wizards of the Coast have the same idea, but you publish it first under the OGL – you agree they will just have to give you money rather than let you prevent them publish their product. Honestly that’s likely to be your best possible outcome anyway since if it was not coincidental, that would be bad faith and injunctions are incredibly hard to obtain at the best of times.

Royalties

I’m going to to be honest, I didn’t even think of this until I looked into Noah’s write up, but he does have a point that the contract doesn’t guarantee it will be royalty free in perpetuity. In theory, since there is no promise to never charge royalties, they could update Section 5 to backdoor in some sort of royalties (they can only modify two sections) but from a practical perspective, particularly since they’re doing this in response to a PR backlash… doubtful.

Also the stuff to be covered under Creative Commons 4.0 is inherently royalty free for forever, but that’s not much beyond the basics.

However it certainly wouldn’t hurt for them to explicitly clarify their stance on that, and from a personal perspective I don’t think it’d be unreasonable for them to want modest royalties for people who earn six figures on individual products within a year – but I think they’re going to need a quite complicated structure to make it work. A company that earns $1,000,000 through a Kickstarter where they promise to send out physical books around the world is financially in a very different situation to one that earns $1,000,000 through a viral product sold as PDFs and print-on-demand through DriveThruRPG, and the structure would have to reflect that.

Corporations are evil and will do evil

No disagreement, but then you’re not really arguing about a license for a role-playing game, you’re advocating for a complete restructure of our political and economic landscape. I’m not against that either, but like… its not going to happen by adding a clause to an open license.

Also please don’t forget that Paizo and many other parties in this mess are also corporations.

Trust no one. Especially not me… I’m not responsible for your life choices.

It’s not an open licence if…

There is no legally defined criteria for an open licence, nor is there even a strong concensus among the groups that advocate for their use. Even the groups who started the term can’t agree on whether it’s supposed to me “free” as in you don’t ever have to pay a cent to use it or “free” as in there are no limitations to what you can do with it, or it must be both – but lots of people limited that with “non-commercial” and “no use without attribution”. After all, there has to be something different from “public domain” (and you can just declare your creations to be public domain).

Plus those groups were talking explicitly about software related licences when they started this shit fight.

You’ll notice, for example, that Creative Commons don’t use the term “open” when explaining the licenses they offer.

Based on my research (again not an official legal opinion), there are only actually consistent things about all open licenses, current are:

• Licences for the use of “content” (as opposed to licences to enter physical property, borrow a physical item, etc); and
• Offered with terms publicly available (that means its extended to the world in general, you don’t have to lodge an expression of interest to see what the deal will be); and
• Are intended for wide use by a community or the public in general.

Beyond that it’s all very vague and mostly untested so the genuine belief that “open” meant “irrevocable” won’t be entirely worthless, but it is unlikely to get you past promissory estoppel – and its really unlikely anyone, including Paizo, will fight it in court when there’s such a minimum benefit and the obvious option to just adapt and move on.

And like, variations on the idea of open licenses are common, and they can come with risks.

I have to sign up at Paizo customer to use their “compatibility” licence but since that just amounts to a name, date of birth and an email there’s presumably an expectation that they can use that email to tell you when you’re being terminated and must destroy all your stock with a logo on it.

Creative Commons requires you waive royalties and control, but only if the other party meets the necessary criteria. You can require proper attribution is supplied and there may be other limitations possible (you may have to “sharealike” or may only be able to use it exactly as intended) – which means if the user of the materials fails on those criteria and doesn’t, or can’t remedy in time (they use the same “your discovery of” type clause as OGL 1.0a) then you can’t rely upon it at all.

You could, in theory, create something inspired by something in the CC BY-NC-ND 4.0 and start selling it only to be accused of having breached the non-commercial and no derivatives aspects of the product – then claim that meant you had no license and come out your for all your cash. The outcome would depends on the facts and the particular courts involved.

There is no completely safe model with no risk to licensor or licensee, and no real consensus on “open” other than it must be available to the world.

Ryan and Monte said… is this the end of open licences!?

As covered above, Ryan and Monte’s claims that the OGL was intended to be permanent and irrevocable would be powerful evidence for someone seeking promissory estoppel. But there are problems with the idea that it would be able to prevent Wizards of the Coast from discontinuing the licence and exercising control over their property. Courts in capitalist systems hate it when you try to enforce control over other people’s property.

They may honestly and sincerely believe everything and there may be interviews where they are talking about it as though it’s the eternal future of gaming – but those interviews aren’t formally joined to the licence and nothing they say after leaving Wizards of the Coast is binding as representative of Wizards of the Coast. So they may have been a reasonable basis for reliance, but they’re not likely to be accepted as part of the eternal contract and they’re certainly not indisputable authorities to a court.

Ryan’s own site, back in 2004, used to specify a requirement for “the license must have a mechanism to ensure that the rights it grants cannot be taken away, either by the original contributor of the material, of the copyright holder of the license text itself, by an action taken on behalf of a 3rd party, or any other process.”. Well WotC don’t want to take it away, they just want to stop offering it for new products – also the very next paragraph covers that they “believe” these requirements are met but the list is “provided as a convenience and should not be taken as a formal endorsement of the terms of any of these licences.”

So unless someone finds an old email where Peter Adkinson is congratulating Ryan and the others involved on having made a permanent, and irrevocable licence that will surely be the standard until Judgement Day… it’s probably not clear cut what Wizards of the Coast’s opinion, as an imaginary entity with terrifying wealth and legal power, was on the topic.

Telling a company that because some former employees who are now competitors swear a licence with no irrevocability clause is actually irrevocable, the company cannot discontinue a licence would be a huge deal and would raise a lot of issues:

• Is there any way to confirm this or is it just memory or the vibe of a memory? Monte just to have a LiveJournal but that’s gone… most places only keep financial records for like ten years… how much information to confirm anything is really available twenty-two-plus years later?
• Is there a reason the irrevocable clause wasn’t added? The olde FAQ did specify that it was “drafted with specific legal language to withstand any reasonable court challenge.” That seems like if it was supposed to be irrevocable, it’d say irrevocable. Of course, it also includes the disclaimer of “The author, Ryan Dancey, is not an attorney and makes no representation about the accuracy of the legal material contained herein.” So… is Ryan the expert or isn’t he?
• How do we reconcile their personal conflicts of interests both as people who consider the OGL part of their legacy, and as competitors to Wizards of the Coast? I mean Ryan literally owns the url for “open gaming foundation” (though he didn’t update the site for 20 years…?), apparently he also owns a trademark but I’ve been unable to confirm that and I don’t know how it’d help? Stuff like that can hurt your credibility as an expert or any authority.
• How much of what they said was 100% real and how much was wishful thinking or mere speculation? Lots of people in companies have hopes, dreams, personal opinions, etc.
• How much do people even remember correctly after twenty years? Who else thinks they remember things? If they call up other people involved are they going to be helpful, a hindrance, etc?

As a side note, if you think any of this is not suitably respectful to TTRPG legends… sorry but the court isn’t going to care and is in fact, obligated not to assign them any special status – they’ll be as open to questioning and doubt as anyone else. They’ll be expected to substantiate anything they say, and the other side will have the right to challenge that.

There’s a reason why when you go to the Creative Commons 4.0 International, literally the second thing the preamble tells Licensors is that it’ll be irrevocable. It’s a big deal, it’s a huge deal, they want you to know that once you do this – there is no going back.

Ultimately the only way we’ll ever find out, is if it goes to court either as a dispute or a declaratory judgement case and all the facts get laid out and the court weighs up everything and makes their best, informed decision.

But the fact that we need all of that, makes it every difference from an open licence that has a clearly spelled out irrevocability clause it in. I don’t think this would effect other open licences except perhaps as a footnote or a learning exercise.

• 1
  C v Holland [2012] 3 NZLR 672
• 2
  Former Real World Reality Tv Star Sues MTV, Shocking Contract Provisions Revealed by Malcolm Wells, 13 November 2011, Fordham Intellectual Property Property, Media & Entertainment Law Journal http://www.fordhamiplj.org/2011/11/13/former-real-world-reality-star-sues-mtv-shocking-contract-provisions-revealed/
• 3
  Cohen v. Cowles Media Co., 501 U.S. 663 (1991)