The new (non)-Open Gaming License 1.1 and what I would rather see

Wow!

So imagine this. You have built up a brand over 40+ years. It has a buzzing ecosystem of third-party publishers and tools creators, which supports your brand, drives new customers to your brand, and encourages existing customers to stay with your brand and keep buying your addons and extensions.

You’d want to do everything you can to nurture this ecosystem, wouldn’t you?

Unfortunately it seems Wizards of the Coast have decided to turn their back on the core licence which underpins this ecosystem. And many big names are talking about moving away as a result.

Along with OneD&D, Wizards are bringing out a new so-called Open Gaming License which appears to be anything but. In an exclusive post by Linda Codega on Gizmodo yesterday, she analyses a leaked copy of what Wizards are calling OGL 1.1. Suspicions had already been raised in the community, but this confirms the worst rumours.

Update: see also this analysis by Noah Downs, aka myLawyerFriend.

The OGL 1.0a and 5e Ecosystem

I describe the current situation with OGL 1.0a (at time of writing, 6^th January 2023) in a separate post. I think it’s worth repeating my description of the ecosystem that this has created and supported.

Many, many publishers, mostly very small publishers (including myself) have taken advantage of the OGL to publish supplements, adventures and addons – a search on DriveThruRPG for D&D OGL content just now turned up 17610 products! There are also some major publishers of 5e content, including in particular Kobold Press and Paizo. And there are hundreds of Kickstarters which have developed or are developing content for 5e.

This creates a buzzing community and eco-system around the Wizards’ game, in particular fifth edition. In turn this establishes 5e as the system to use in order to use all this content, which drives players (in which I include GMs) to invest in the base rulebooks and settings from Wizards, and in D&D Beyond subscriptions and content (which is now owned by Wizards).

There are also assorted tools which have grown up which cater for 5e, in particular Virtual Tabletops like Roll20 and FoundryVTT. These make it easy to play 5e online as well, further expanding the community.

Up till now, I have been proud to be part of this ecosystem. It has brought me much pleasure over the years, and whets my creative appetite as well as giving me a social outlet on a regular basis.

The new OGL 1.1

There have been rumours for a while that Wizards are planning on updating the Open Gaming License for OneD&D, and the web has been buzzing with theories and concerns, fuelled in large part by a blog post the company published last month.

Alphastream (Teos Abadia) had a very good series of thoughts on the OGL prior to this leak, which is in three parts:

• Part 1: Reasons for the Current OGL
• Part 2: What We Want
• Part 3: What WotC Wants

The Wizards blog post says:

The OGL needs an update to ensure that it keeps doing what it was intended to do—allow the D&D community’s independent creators to build and play and grow the game we all love—without allowing things like third-parties to mint D&D NFTs and large businesses to exploit our intellectual property.

Fair enough.

…

OGL 1.1 makes clear it only covers material created for use in or as TTRPGs, and those materials are only ever permitted as printed media or static electronic files (like epubs and PDFs). Other types of content, like videos and video games, are only possible through the Wizards of the Coast Fan Content Policy or a custom agreement with us. To clarify: Outside of printed media and static electronic files, the OGL doesn’t cover it.

Will this affect the D&D content and services players use today? It shouldn’t. The top VTT platforms already have custom agreements with Wizards to do what they do. D&D merchandise, like minis and novels, were never intended to be part of the OGL and OGL 1.1 won’t change that. Creators wishing to leverage D&D for those forms of expression will need, as they always have needed, custom agreements between us.

…

For most of you who are selling custom content, here are the new things you’ll need to do: 

1. Accept the license terms and let us know what you’re offering for sale
2. Report OGL-related revenue annually (if you make more than $50,000 in a year)
3. Include a Creator Product badge on your work

…

For the fewer than 20 creators worldwide who make more than $750,000 in income in a year, we will add a royalty starting in 2024. So, even for the creators making significant money selling D&D supplements and games, no royalties will be due for 2023 and all revenue below $750,000 in future years will be royalty-free.

Linda’s post now confirms all of that, and more. According to her post:

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

Linda Codega on Gizmodo

So they are saying publication under the OGL 1.0 is no longer authorized. Remember those 17610 publications on DriveThruRPG?

Further:

… the updated OGL is very specific: The updated license “only allows for creation of roleplaying games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes. You may engage in these activities only to the extent allowed under the Wizards of the Coast Fan Content Policy or separately agreed between You and Us.”

Merchandise and novels I can understand. VTTs and apps I cannot. Surely it is to Wizard’s benefit that the VTTs support their game rules – it drives more people to their games. If the VTTs have to stop supporting their games, the only result I can see is that it will drive people to other rule systems which are less restrictive.

Linda Codega on Gizmodo

Now the update for creators:

… the new OGL states that the Commercial Agreement “covers all commercial uses, whether they’re profitable or not.” So if you go into the red on a Kickstarter that earned $800K in backing money, you will still owe Wizards of the Coast, regardless of the fact that you did not profit from your venture.

…

The revenue tiers are as follows:

A. Initiate Tier. If You have registered at least one Licensed Work but haven’t generated $50,000 or more in total (gross) revenue from OGL: Commercial products in a given year, You are at the Initiate Tier.

B. Intermediate Tier. If Your Licensed Work(s) have generated more than $50,000 in total revenue in a given year but less than $750,000, You are at the Intermediate Tier.

C. Expert Tier. If Your Licensed Work(s) have generated at least $750,000 in total revenue in a given year, You are at the Expert Tier.

…

The updated OGL says that “no matter what Tier You are in or how much money You believe Your product will make, You must register with Us any new Licensed Work You intend to offer for sale… including a description of the Licensed Work. We’ll also ask for Your contact information, information on where You intend to publish the Licensed Work, and its price, among other things.”

According to the document, “If, and only if, You are generating a significant amount of money (over $750,000 per year across all Licensed Works) from Your Licensed Works, The revenue You make from Your Licensed Works in excess of $750,000 in a single calendar year is considered “Qualifying Revenue” and You are responsible for paying Us 20% or 25% of that Qualifying Revenue.”

Linda Codega on Gizmodo

Wow. So if I want to create OGL 1.1 content, I have to give them a copy everything I’m selling, say where I’m selling it and for how much, and declare my revenue to them. And if I become a successful company, I have to pay 25% royalty on everything over the threshold, regardless of whether I make a profit on it or not. Apparently they do have a special arrangement with Kickstarter, whereby you only owe 20%.

A couple of other worrying claims:

… one of the caveats is that the company “can modify or terminate this agreement for any reason whatsoever, provided We give thirty (30) days’ notice.”

WotC also gets the right to use any content that licensees create, whether commercial or non-commercial. Although this is couched in language to protect Wizards’ products from infringing on creators’ copyright, the document states that for any content created under the updated OGL, regardless of whether or not it is owned by the creator, Wizards will have a “nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.”

Linda Codega on Gizmodo

So, although currently the threshold for the Intermediate and Expert tiers are $50k and $750k, and the royalties are 0% and 25%, they could change that at 30 days notice and I would either have to comply or stop publishing. That’s a HUGE risk for a publisher.

And they get the right to my content, royalty-free, to do whatever they want with. Sorry, what?

With those two clauses, they are going to kill the ecosystem. The risk is just too great. I am already aware of several major publishers who are changing their business model until things clear up, and I must say it significantly puts me off considering publication under the new OGL.

Oh yes, and finally:

The leaked OGL 1.1 draft indicates that WotC may not give licensees a a lot of time to adjust and agree to this new policy: The document reads, “if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial.” io9’s source indicated that the final version of the document was originally intended for release on January 4, which would have given companies and creators seven business days to agree and comply.

So there’s pretty much no notice given of these changes, no time to think it through, no chance to adjust. How to really make your supporters feel unwanted…

Linda Codega on Gizmodo

What I hope

I can understand Wizards see this ecosystem and want a slice of it. And I can understand them being sore about PathFinder. But I think (and so do many other commentators) that they are risking killing off the ecosystem instead.

The key issues here:

• As a publisher the requirements to declare all my content and revenue is a huge barrier. A huge barrier which only exists for OGL 1.1 content.
• The right to change terms with 30 days notice, with no protection for the publishers, is a killer. Far too much risk.
• Claiming the right to my work, for free, with no recompense, is just unacceptable. I need some return on my investment and some protection of my work. Maybe they claim that’s not why they want it, but I can’t sign up to that without some protection.
• I doubt I will get to the level where the royalties affect me (unless they change their terms – see point above), but I can see that will stifle other creators, including Kobold Press whose publications I really enjoy.
• Killing off the 1.0 OGL kills everything and will just push people away. It also has the potential to destroy a large number of livelihoods.

I hope they see sense.

I can understand them wanting to update the terms, but I would rather they stick to their previous statement of “evolution rather than revolution”.

• Leave the OGL 1.0a alone and valid for the 5.1 SRD. That allows the existing businesses to continue.
• Make the equivalent content from OneD&D available under a similar genuinely open licence for supplements and tools.
• Look at the DM’s Guild licencing and content, and build on that instead with the new publication licence and royalties so that they open up the ecosystem wider – that would expand the ecosystem rather than contracting it.
• Respect our IP and our investment: build in protection for publishers against them arbitrarily changing the playing field under our feet or taking our work without recompense. Without that, it is just too much of a risk to even consider investing in content for their systems.

Of course, the leak may be incorrect, or Wizards may change their mind. I really, really hope one of these is the case. I love this game and the buzz there is around it, and I would really like to see it continue to go from strength to strength. But if Linda’s leak is correct, and they don’t back down, they are more likely to kill it off.

How this impacts me

So, I have various irons in the fire here.

Obviously, my primary and most visible one is this blog. This still falls into the non-commercial category, so should be unaffected. While I will happily accept one-off donations via Ko-Fi, and have a Patreon if you want to support me on an ongoing basis, there is no requirement to pay to access this blog.

However, I have three related publications available on DriveThruRPG:

• Ragnar’s Keep – a detailed castle setting (with matching maps by Heroic Maps)
• My Session Tracker (PWYW)
• Experience Award Tokens (PWYW)

I have also been working on various things in the background, in particular:

• An adventure module, which challenges the players to cope without their basic equipment
• Prosthetics and disability mechanics
• Development of the city of Akorros
• Various other encounters and updates
• I have also been thinking about a tool to help me with my session planning and management, which I was hoping other people might find useful.

I had a dream of going down to four days a week at my current job to allow me more time to work on these and other updates. This is significantly making me reconsider.

I will continue with the blog, and I still have my fortnightly game, which will be unaffected unless FoundryVTT have to remove their OGL content.

The module is ruled out for now, until I see what the final licence is. I may be able to revise it for another ruleset or to make it rules-agnostic, but it will take careful thought.

I can continue with the prosthetics mechanics as long as it’s for free, (which was my intention anyway), but I was also considering publishing it as part of the module.

If I make my tool available, it will have to be completely rules-agnostic, or at least not use any OGL content. This will mean it won’t be encouraging people to use it with Wizards’ content, which will be to both their and my loss. I still think it will be a useful tool without that, but it would have just made everything slicker and more powerful, and driven people to their content.

Tough decisions. But at least I don’t depend on it to pay the bills, unlike many others. I pity all the people who have OGL-based Kickstarters in flight, and wonder how many will feel they have to cancel.

I am aware of various legal challenges already brewing to challenge Wizards’ right to invalidate the OGL 1.0a, and there is also the possibility that Wizards will listen and offer more acceptable terms which will continue to encourage the community.

This one is going to run and run…