Tobold's Blog
Friday, January 06, 2023
D&D and Lawyers

Dungeons & Dragons always had "rules lawyers", that is players who were overly concerned about the correct interpretation of the rules. But if you follow any D&D YouTube channels these days, chances are high that they feature actual lawyers. This is due to Hasbro / Wizards of the Coast planning a new "open gaming license", OGL 1.1. And this license is somewhat less generous than OGL 1.0a from the year 2000. I am not a lawyer, but let's zoom out a bit and explain a bit of context.

It is basically impossible to play Dungeons & Dragons without "creating content". Even if you play an official adventure or campaign module, the DM always needs to flesh things out. And of course you might want to invent your own adventures. As long as that happens within the confines of a single gaming group, this process doesn't involve licenses or lawyers at all. But of course some people who did create content for Dungeons & Dragons then wanted to share that content further. And as D&D content doesn't make any sense without referencing D&D intellectual property, you can't legally publish and especially not make money of that sort of D&D content without the permission of Wizards of the Coast, the owner of the D&D IP.

In the very early years of the internet, when D&D was still owned by TSR, they were infamous for aggressively going after anybody even publishing free homebrew D&D content on Usenet. Which turned out to be not a good idea, because they basically destroyed free advertising for their game. By the year 2000, and the third edition of D&D under Wizards of the Coast ownership, it had become clear that some sort of legal framework was needed that would allow players to put homebrew D&D content on the internet. Thus Open Game License was born. Wizards of the Coast provided a "system reference document" SRD, which was basically a rules version of D&D that was compatible with the D&D rules that WotC published, but without the "product identity" of specific WotC material. For example the D&D rules had "Melf's Acid Arrow", but as Melf was a specific character owned by WotC, the SRD just had that spell as "Acid Arrow". While WotC published 4th edition D&D under a more restrictive "game system license", they went back to the OGL with 5th edition.

Now for much of my time with Dungeons & Dragons, the OGL meant that both players and small publishing companies like Kobold Press could legally publish D&D adventures and homebrew rules. That was no big deal, as this was all very much niche stuff and didn't involve large sums of money. But these days companies like Critical Role playing D&D on Twitch and YouTube make millions of dollars every year. And while there is some collaboration between Critical Role and WotC, it is easy to see why WotC would quite like to get some licensing fees from Critical Role rather than allowing them to operate under a free license. Thus OGL 1.1 makes a big difference between publishing non-commercial D&D stuff, and people making more than $750,000 a year from D&D content. And it specifies that the OGL “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.".

Thus a lot of the D&D stuff already out there, like the PC game Solasta: Crown of the Magister, or various YouTube videos, aren't covered by the new OGL, and need some other license to operate under. Which might cost them some money. On the other hand, WotC is unlikely to go after every person making a D&D video on YouTube. This is further complicated by this all being contract and IP law, which is notoriously difficult. You can write *anything* you want into a contract agreement. You and me could make a contract in which you sell me your soul. But that would just be a piece of paper, as I don't have the technical means to actually harvest souls. Yet! :) In the case of the OGL there is a lot of discussion in how far WotC can actually change their original OGL, as it contains words like "perpetual". Different people with different degrees of legal experience have different opinions on that, but before a case comes in front of an actual judge, I would say the matter is somewhat undetermined. Nevertheless, if you are a small scale YouTube D&D content creator, and Hasbro sends a copyright infringement notice to YouTube, your channel is likely to get taken down without a court case. And it would be very expensive and time-consuming to reverse that. Thus the large number of D&D YouTubers who are currently so unhappy and posting videos featuring actual lawyers.

I think this is a losing battle and will be a bad choice of hill to die on if they stick to their guns. Similar to your example of them going after people in the early 2000s this does more harm to D&D then helps.

Critical Role especially is at a point where they absolutely could just switch to a different ruleset (They came from Pathfinder after all) or develop their own framework.

The Vox Machina Amazon show and it's success showcases that they don't have to rely on D&D IP to create their products.

If the issue is that WOTC just wants a slice of the pie from Critical Role and Dimension20 they might end up pissing off their biggest free advertisers and getting them both to switch rulesets and end up with nothing.
@bigeye i totally agree with you.

I'm not really taking the time to read about their new OGL, but if i can't play on Twitch (we rarely get more than 20 viewers since our games are in French) we will just go back to playing without viewers. But Critical Role is an ambassador of their game. Remove CR and D&D 5e would probably be way less mainstream. I'm also pretty sure if CR decide to switch system, any other system will be HAPPY to have them!

Anyway, WotC makes decision but Hasbro is always looking over their shoulders... and both compagnies are know for making some really bad decisions.

I guess we'll see once D&D One goes live!
This comment has been removed by the author.

Any idea how this will affect current Kickstarter campaigns?

It sounds like a simple "Twitter" post will be all that's needed to end months(or years) of work. I had no idea that social media platforms could be used to alter/amend legal precedence.
You exaggerate. The changed contract is a 9000 words document. Of course in the case of any open license there is an interest to announce changes on social media, but the announcement isn't the legal document.

In my understanding the problem is with the legal meaning of "perpetual". In legal speak that can just mean "without a defined end date". It does not mean "irrevocably". There is nothing impossible about revoking a perpetual license. I don't know any examples of contracts that can't be changed for eternity, even the constitution can be amended. At best somebody can claim "grandfathering", that is to say that if he already published something under OGL 1.0a and cited that in his publication, he can be exempt from rules of OGL 1.1 for the already existing stuff. That won't help people who will want to publish new things for the new One D&D system.
You misunderstand.

This is problematic because it basically means that the end user must monitor(or have an account on) "Twitter" or any other such "social media" they choose to make such notices on. Or, they require the content creators to monitor a "website" in perpetuity for any future changes/announcements, which is laughable on many levels because anything said on social media is not considered to be a legally binding notification by the courts(at least in the US), because parties cannot be required or compelled to have social media accounts.
The end user of an open license is every human being on Earth. I don't think you can require written, personal notification of any changes. The license itself doesn't exist in signed paper form, but as PDF on a website. So, yes, it is up to the end user to monitor changes on that website. The notification on social media is a courtesy.
Everything that is being discussed surrounding this issue stems from a supposed "leaked version" of the new license. Until I see an official statement from WOTC that these changes are real and forthcoming, I'll consider it's all speculation for now.
I think the fact that WOTC haven't come out and said that the "leaks" are bullcrap despite all the backlash is all anyone needs to assume that they are indeed legit.
Apparently Wizards approached the Director of Games at Kickstarter, Jon Ritter, and asked his thoughts on the changes in 1.1. His reply was even more troubling, as he stated that Kickstarter would "advocate for creators" to get the discounted rate of a 20% tax versus the 25% tax that 1.1 states for other crowdfunding sites. So now we have a questionable "leak" of the document and its timing, to Wizards working behind the scenes with Kickstarter before an official announcement has even been made about the validity of 1.1. That 5% discount would mean that Kickstarter would stand to make quite a bit more money over competitors in the crowdfunding space.

I guess if Wizards is working behind the scenes to lock in support for 1.1 as is the case with Kickstarter, then it's safe to assume that it's a done deal. No need for an official announcement at this stage, right?
Turns out that the Gizmodo article was full of misinformation. Once an actual lawyer reviews OGL 1.1, it turns out that it is actually not that bad.
WotC listens to the feedback and updates the OGL. Contract negotiation with the masses happens on social media.
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