Beyond Programming: D&D, Open Source and Gaming
Wizards of the Coast is changing the rules for the Dungeons and Dragons Open Gaming License, and game designers are Not happy.
Long before there was open-source software, there was Dungeons and Dragons (D&D). And, I was there from almost the beginning. I started playing D&D in 1975. Years later, open source came along and changed the world. While we think mostly of how it's transformed software development, it also changed gaming. Or, to be more exact, it did.
In 2000, the prominent gaming company Wizards of the Coast, publishers of D&D and Magic: The Gathering, released the Open Gaming License (OGL) 1.0a. This license, which was spearheaded by Ryan Dancey, gave game designers and publishers the right to use some processes and materials found in D&D 3rd edition.
This was a big deal in its day. Dancey was a big admirer of Richard M. Stallman and the Gnu Public License (GPL). So, Dancey proclaimed in an interview that "The GPL is the foundation of our ongoing attempt to create a similar license for gaming, currently known as the Open Gaming License." Why? Because, he believed in the power of open source to expand the game and its market.
I think there's a very, very strong business case that can be made for the idea of embracing the ideas at the heart of the Open Source movement and finding a place for them in gaming. ... One of my fundamental arguments is that by pursuing the Open Gaming concept, Wizards can establish a clear policy on what it will, and will not allow people to do with its copyrighted materials. Just that alone should spur a huge surge in independent content creation that will feed into the D&D network.
Well, that was the theory. As the Electronic Frontier Foundation (EFF) explained, the reality was the OGL didn't give game designers much at all.
First, for the game processes, "The version of the Open Gaming License (OGL) that has existed since 2000 is very narrow. It permits the use of 'the game mechanic and includes the methods, procedures, processes, and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor.' You’ll notice that these are the elements that are not copyrightable in the first place. So the only benefit that OGL offers, legally, is that you can copy verbatim some descriptions of some elements that otherwise might arguably rise to the level of copyrightability."
That's not much.
You also agreed Not to use--deep breath--anything the license defines as
'"Product Identity," including product and product line names, logos, and identifying marks, including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses, and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content.
That's why you can't, for example, use characters such as Ilminster or Drizzt, and explicit monstrous creatures such as the Mind Flayer or Beholder. So, what do you get? Well, basically, you know under "what terms Wizards of the Coast will choose not to sue you."
That's big of them.
Despite the narrowness of the license, which is further spelled out in the OGL System Reference Documents, many people and small companies have made new role-playing games (RPGs) and new D&D material, such as rule sets and scenarios. In other words, besides giving players and game masters--you can't say Dungeon Master under the OGL either--people have been making their living from OGL-based gaming products.
That was fine as far as it went. But then, as Linda Codega, an i09 staff writer, reported on Gizmodo, a new, more restrictive OGL was soon to be released. This would further restrict "the kind of content allowed and requires anyone making money under the license to report their products to Wizards of the Coast directly."
This went over like a lead brick.
Worse still, "the original OGL will become an 'unauthorized' agreement, and it appears no new content will be permitted to be created under the original license." Now those are fighting words!
Can they do that? Possibly. As Cory Doctorow, the well-known writer, and copyright law activist, points out:
Free/open licenses were invented specifically to prevent this kind of fuckery. First, there was the GPL and its successor software licenses, then Creative Commons and its own successors. One important factor in these licenses: they contain the word 'irrevocable.' That means that if you build on licensed content, you don't have to worry about having the license yanked out from under you later. It's rugproof.
Unfortunately, as you've probably guessed by now, the OSL doesn't contain the word 'irrevocable.' Instead, it uses the word 'perpetual,' and that may sound the same to you, but they're not at all the same in law. Doctorow explained, "In lawyerspeak, a "perpetual" license is one whose revocation doesn't come automatically after a certain time (unlike, say, a one-year car lease, which automatically terminates at the end of the year). Unless a license is 'irrevocable,' the licensor can terminate it whenever they want to."
Now, in practice, they may not be able to get away with it. The EFF points out that the WotC has historically treated the OSL as a contract. That means "games that held up their end of the bargain under the OGL 1.0a are entitled to the benefit Wizards of the Coast promised them under that contract. But Wizards can revoke the offer of the OGL 1.0a as to new potential users who haven't yet accepted its terms."
So, will this mean, as HackaDay writer, Jonathan Bennett put it, " If Wizards push forward with this new license, it will likely doom Dungeons and Dragons?" No. I can't see that. However, it would endanger anyone developing further gaming material under the OGL.
The WotC isn't made up of dopes, though. They've seen the reaction, and they've backed off. However, WotC also showed that they don't have a clue about how open-source licenses actually work.
In the company's latest explanation, WotC say they just want to prevent people from using "D&D content from being included in hateful and discriminatory products." Lovely idea, but it's anti-open source. Here, they're heading straight into the traps of ethical software.
WotC also wants to keep people from using D&D in "web3, blockchain games, and NFTs by making clear that OGL content is limited to tabletop roleplaying content like campaigns, modules, and supplements." Again, that's not open source. Once you truly open source something, you can't decide how it's used. That way lies Common Clause and related licenses, which try to restrict how creators can sell or offer their materials.
And, continuing in that vein, WotC wants to ensure that no one else can profit too much from OGL-based content. "OGL is for the content creator, the homebrewer, the aspiring designer, our players, and the community—not major corporations to use for their own commercial and promotional purpose." No! No! No! You can't make that call in an open-source license.
WotC really, really doesn't get what open source is about. The company has also dumped, for now, its proposed OGL user royalty structures, and promises to clarify ownership of copyright and intellectual property.
I have a suggestion for them. Stop trying to do this on your own. You were no good at it back in 2000 and are even worse today. If WotC is serious about open source, which frankly, I doubt, hire an open-source savvy lawyer. Drop me a note. I know many great ones.
In the meantime, Codega reports that a social campaign to cancel D&D Beyond subscriptions has gone viral. This financial slap-in-the-face has forced WotC to delay the rollout of a new OGL further. She also wrote that her sources are telling her that WotC hopes that this will all blow over, and in a few months, they can push through a new OGL that suits their needs, and no one will notice.
Good luck with that plan. Gamers care very deeply about their games. Whatever they decide will be examined in fine detail. If, at the very least, they don't honor a continuation of OGL 1.0a for existing partners; they'll be in a lot of hot water.
This entire affair, however, reminds me how many technology companies and developers still really don't understand the importance of open-source licenses and copyright. While it takes doing to foul up as much as WotC has with the OSL, even businesses that should no better can still make blunders. Before making any important open-source licensing policy decisions talk to lawyers or research firms such as RedMonk who really understand the issues. You'll be glad you did.