What was going on with D&D's leaked OGL 1.1 in January 2023? How does it affect me?

Question

Most of the communities I participate in are currently ablaze with rumours and speculations about Wizards of the Coast's OGL 1.1 stemming from a leaked document.

As someone that is on the brink of pushing to print something I've been working for the past half-decade, a sudden, retroactive change of the licensing terms is at least incredibly worrisome.

I'm aware that this is currently a developing event and most of what we have are, so far, rumours and speculation, but I want to understand if there is a kernel of truth to this before committing even more time and money to something just to regret it later.

I'm having a lot of difficulty finding relevant information that isn't extremely scary. I'm not sure if that's because this whole situation is, indeed, scary, or if this is more of a fruit of exaggeration by those covering it.

Yet, I can't help but worry. I don't want my effort to go to waste. I don't want to lose my yet-unborn IP to Wizards of the Coast because they suddenly said it is theirs now.

So, I ask:

• What's OGL 1.1?

• How does it affect me, as a player?

• How does it affect me, as someone who wants to publish something in the D&D ecosystem?

Answer 1

Not at all

As of January 27, 2023 Wizards announced they would not be modifying OGL 1.0a or revoke it. Instead, they put the SRD 5.1 under Creative Commons.

1. We are leaving OGL 1.0a in place, as is. Untouched.
2. We are also making the entire SRD 5.1 available under a Creative Commons license.
3. You choose which you prefer to use.

---

What was OGL 1.1?

First appearing around January 5, a document appeared first in snippets, then as a full text. As of January 12, 2023, the OGL 1.1 did show itself as a document purporting to be a leaked license that Wizards of the Coast appears to have intended to replace the current OGL, version 1.0a. An official press release regarding the leaked document had been rescheduled or canceled twice till then. (Gizmodo)

Official Response: Direct abandonment and move to a Draft for 1.2

The first official proclamation from WotC was on January 13th when they announced that they wanted to discuss a 1.2 with the community and that their 1.1 was clearly going against community wishes. On January 18th, they started a discussion about a possible 1.2, which still would deauthorize 1.0a. To receive feedback, the very next day, January 19th, they released a draft for the 1.2 and a questionnaire.

7 days later, 1.2 was abandoned

The fallout over just about one week was extremely negative, as was announced on January 22nd that from the more than 15000 responses the following statements had an overwhelming majority:

• 88% do not want to publish TTRPG content under OGL 1.2.
• 90% would have to change some aspect of their business to accommodate OGL 1.2.
• 89% are dissatisfied with deauthorizing OGL 1.0a.
• 86% are dissatisfied with the draft VTT policy.
• 62% are satisfied with including Systems Reference Document (SRD) content in Creative Commons, and the majority of those who were dissatisfied asked for more SRD content in Creative Commons.

Shortly after, this statement appeared, together with the SRD 5.1 in Creative Commons

1. We are leaving OGL 1.0a in place, as is. Untouched.
2. We are also making the entire SRD 5.1 available under a Creative Commons license.
3. You choose which you prefer to use.

What even is an OGL?

The Open Gaming License is a document which

establishes a relatively forgiving set of guidelines for creators hoping to build new creative content on top of the core D&D rules. The short document is mainly designed to help clarify which parts of WotC's D&D publications are "Open Game Content" (e.g., rules and mechanics that would be difficult for WotC to copyright in the first place) and which parts constitute "Product Identity" (e.g., trademarked terms and copyright-protected characters and worlds created by the company).

(ArsTechnica)

Another interpretation is that the OGL:

The version of the Open Gaming License (OGL) that has existed since 2000 is very narrow. It permits 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.

(EFF)

Note that the EFF analysis continues with the idea that the OGL may be more appropriately termed a contract:

As the community has scrutinized Wizards of the Coast's past statements, it's become very clear that Wizards always thought of this as a contract with obligations for both sides (for instance their 2001 OGL FAQ v 1.0).

(EFF; note: the FAQ link is a direct download of an RTF document containing the OGL v1.0a)

Regardless: there seems to be general agreement that, at the very minimum, the OGL creates "Open Game Content" and "Product Identity" categories into which everything D&D-related falls. Product Identity generally covers things like proper names, artwork, stories, descriptions, etc.; Open Game Content generally includes mechanics and anything explicitly marked as being OGC (which may include things that would otherwise fall under Product Identity). WotC (and Hasbro, WotC's parent company), in the OGL, promise not to sue anyone who uses the OGL 1.0a to reprint or reproduce Open Game Content provided they don't also include Product Identity that they don't have permission to use.

What would have been changing?

As of January 12, 2023, proper changes were speculation, largely based on leaked documents and a key press release from December 2022. The leaks contain a few major changes:

Revenue Sharing (or Rent-Seeking)

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.

(D&D Beyond press release, Dec 21 2022, mentioned in the ArsTechnica article)

Limitations on content type

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.

(D&D Beyond press release, Dec 21 2022, mentioned in the ArsTechnica article)

Of particular note: the Fan Content Policy requires:

You can use Wizards’ IP (except for the restrictions listed in #3) to make Fan Content that you share with the community for free.

(Fan Content Policy).

The restrictions in #3 refer to products that include IP owned by 3rd parties (eg.: crossovers or mash-ups - I couldn't point to the policy as proof that I could make a Star Trek setting for D&D as long as I put it up for free, unless I had permission from, IIRC, Paramount) and aren't particularly relevant here.

Compulsory Licensing

And the new license also reportedly lets WotC make use of any content created under its license through a "nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license."

(ArsTechnica article)

Revocation of OGL 1.0a and Apparent Superseding

The leaks suggest that WotC is going to revoke the OGL 1.0a. Whether they can do that is unclear:

Unlike a bare license without consideration, an offer to contract like this cannot be revoked unilaterally once it has been accepted, under the law of Washington (where [WotC is] located) and other states. Since the contract is accepted when someone “uses” the licensed material, then people who relied on the OGL 1.0a have a good argument under contract law that Wizards of the Coast cannot unilaterally withdraw the value that it offered under the contract. This would apply to people who “accepted” the OGL 1.0a by using the relevant material prior to receiving notice that Wizards is rescinding that offer. In short, 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.

The OGL 1.0a does specifically address new versions and gives the recipient the right to use “any authorized version” of the license “to copy, modify and distribute any Open Game Content originally distributed under any version.” This means that people who accepted OGL 1.0a have the right to use its terms for anything licensed under a subsequent OGL 1.1, so long as the OGL 1.0a remains an “authorized version.” The leaks suggest that Wizards wishes to construe this term to mean “a version that they have, in their full discretion, decided to keep authorizing on any given day,” but a better reading would be that it's any license they have authorized, as opposed to an OGL that wasn't associated with Wizards. This is particularly true since courts construe ambiguity in unilateral contracts against the party that drafted them.

(EFF)

This seems to imply that WotC sees the OGL's terms as wholly at their whim, which is troubling in and of itself.

It's unclear what WotC thinks should happen to content produced under OGL 1.0a prior to 1.1's release, but it looks like they expect such products to automatically be "upgraded" to OGL 1.1 or pulled from the shelves.

What does that mean for me as a content creator?

If the leaked document would have been substantially the same as the OGL 1.1...

An uncharitable reading is that use of OGL 1.1 means that WotC can take whatever content they want that stems from OGC used under OGL 1.1. This could mean republishing such content themselves without paying the creator for their work.

The EFF argues that acceptance of OGL 1.1 at all is a bad idea:

For someone who wants to make a game that is similar mechanically to Dungeons and Dragons, and even announce that the game is compatible with Dungeons and Dragons, it has always been more advantageous as a matter of law to ignore the OGL. Practicality may dictate a different result when up against the legal team of a large corporation, but if the terms of the OGL are revoked and the new OGL proves even more onerous, that might change the calculus for creators going forward.

A small creator of anything that isn't "printed media or static electronic files" would seem to need to make those artefacts available under the Fan Content Policy, which includes a requirement that they be available for free.

But because 1.1 was unceremoniously dropped, and 1.2 likewise, there was no impact on 1.0a. Instead you cannot quote the SRD 5.1 under CC-BY-4.

What does that mean for me as a player?

At the table, nothing. You can continue to use products you've already legally acquired. It's probably a good idea to download and back-up any digital assets you've purchased or rely upon, though.

The feeling I have is that most people assume that the breadth of 3rd-party content will be diminished by OGL 1.1: 3rd parties can easily see OGL 1.1 as a good way for WotC to offload the cost of development then turn around and offer that developed product themselves, cutting the developer's revenue off at the knees. Even without going that far, the developers will need to tell WotC exactly how tempting it would be for WotC to target them, and may even need to pay WotC for the privilege.

tl;dr

As KRyan's answer alludes to: even the most charitable reading of the leaked documents and press releases implies that OGL 1.1 is a huge power-grab on WotC's part, giving them nearly 100% control over how anything relating to D&D is published. It is nearly impossible to find an angle that doesn't also include this being a money-grab on WotC's part, especially with the royalty.

As-leaked: if you're a creator, OGL 1.1 could have severely limited your ability to make money off DnD content in perpetuity. If you're a player, OGL 1.1 will very likely would have lead to less third-party content that could affect your play experience in the medium to long term. (ht @GuidingOlive for this paragraph)

OGL 1.1 appears to be have been a rather obvious ploy to hamstring the competition. OGL 1.2 was in contrast an attempt to salvage at least some of the points they actually wanted from 1.1 to stay in a dominant market factor. But with 1.1 and 1.2 abandoned, nothing came of it.

Answer 2

According to leaks—not official statements, though the leaks look pretty authoritative and Wizards has said “we’ll have a statement soon” rather than “no definitely not” so something here is probably right—Wizards is preparing to release a new version of the Open Game License, 1.1, that includes the statement that OGL 1.0a is “deauthorized.” This a reference to the statement in OGL 1.0a that you will always be allowed to use “any authorized version” of the OGL, even if later versions are released.

If they do this, they are stating that anyone who distributes their material under the OGL 1.0a is infringing upon their copyright. All content licensed under the OGL 1.0a would have to be pulled from the marketplace immediately, and no further content could be released under that license. There are various legal theories that suggest they may not actually be able to legally do that, but that would have to be hashed out in court—at great expense that no one but Wizards of the Coast can likely afford. Even Paizo, probably their nearest competitor, probably can’t afford to do it—which may be exactly what Wizards of the Coast is counting on.

The alternative suggested by Wizards of the Coast is to use OGL 1.1. Most firms publishing under the OGL have stated they would sooner go out of business—which is probably the point. The OGL 1.1 is not an attempt to work out a reasonable compromise, it is an attempt to strangle the competition—including from prior versions of D&D, since online SRDs and many virtual tabletops rely on the OGL 1.0a as well. Agreeing to the OGL 1.1 means giving Wizards of the Coast free reign to use your work any way they see fit—and if you somehow manage success despite that, you may have to pay them enormous amount of money. Worse, the terms are all subject to change at any time, so when Wizards will claim your money, and how much, is entirely up to them and can change with just 30 days’ notice.

This seems to be an attempt to make “One D&D” much more literal than expected. This seems to be an attempt to make it as hard as possible to play anything like D&D without buying into their newest products. If this works, expect whatever they release as this 6e to get the same treatment in a few years, and the same push to make it impossible to continue playing that rather than buying new 7e products.

What Wizards is doing is wrong. Given their past statements that they could not do this, that other firms were safe from this behavior, in any sane society, in my opinion, this would be fraud. But it seems unlikely that our society exhibits that sanity.

Answer 3

Wizards of the Coast has published a blog post backing away from some of the changes, including the retroactive license change and the royalty structure.

According to them, this is all just a big misunderstanding and they never intended to burn their community to the ground in a giant cash grab. Take that as you like.

The new OGL is not yet published. You should wait to see what it says before you make any final decisions.

The good news is that a lot of other people are in the same boat you are, and they're organizing. You will not need to invent your own D&D-alternative rules engine or license agreement; you can if you want, but some long-established publishers are stepping up to provide alternatives.

• Paizo (creators of Pathfinder) are launching the Open RPG Creative License.

• Kobold Press is launching an open ruleset codenamed Project Black Flag.

• Savage Worlds launched a new Savage Universe website and ran a Twitch stream to talk about licensing.

For someone like you who's created a book for D&D: While you wait for the final text of the new OGL to be released, you should investigate Paizo's Open RPG Creative License. According to their blog post, Kobold Press, Green Ronin, and a number of others are signing on, so you won't be alone. There's nothing like a common enemy to create a tight-knit community!

Answer 4

OGL 1.1 went away; now SRD 5.1 is in a Creative Commons License

OGL 1.2 was passed out for comment, received bad reviews and then retracted.

Today, 27 January 2023, something interesting happened. A post was made at D&D beyond that OGL 1.0a would not be tampered with, and the 5.1 SRD was moved to be under a creative commons license.
An extract from that DDB post:

Already more than 15,000 of you have filled out the survey. Here's what you said:

88% do not want to publish TTRPG content under OGL 1.2.
90% would have to change some aspect of their business to accommodate OGL 1.2.
89% are dissatisfied with deauthorizing OGL 1.0a.
86% are dissatisfied with the draft VTT policy.
62% are satisfied with including Systems Reference Document (SRD) content in Creative Commons, and the majority of those who were dissatisfied asked for more SRD content in Creative Commons.

These live survey results are clear. You want OGL 1.0a. You want irrevocability. You like Creative Commons.

The feedback is in such high volume and its direction is so plain that we're acting now.

We are leaving OGL 1.0a in place, as is. Untouched. We are also making the entire SRD 5.1 available under a Creative Commons license. You choose which you prefer to use. This Creative Commons license makes the content freely available for any use. We don't control that license and cannot alter or revoke it. It's open and irrevocable in a way that doesn't require you to take our word for it.

And its openness means there's no need for a VTT policy. Placing the SRD under a Creative Commons license is a one-way door. There's no going back. {snip}
Here's a PDF of SRD 5.1 with the Creative Commons license. By simply publishing it, we place it under an irrevocable Creative Commons license. We'll get it hosted in a more convenient place next week. It was important that we take this step now, so there's no question.

But what does this mean for me, T. Sar?

How does it affect me, as someone who wants to publish something in the D&D ecosystem? This means that some of your concerns about getting ambushed for a previous OGL 1.0a project may be alleviated, but you need to do your due diligence as regards adhering to the Creative Commons aspect of this development.

Since we ought not give legal advice, and I am not a lawyer, it still means that you would be wise to seek legal counsel, after your own review of the documents, if you have further concerns.

Based on your discussions with us in chat, and that you and your team have spent years working on this project, seeking legal counsel was going to be a good idea anyway.

How does it affect me as a player?

For the moment, not at all. But this move by WotC and Hasbro has given most of the Third Party Publishers (Kobold Press, Paizo, Green Ronin, numerous others) motivation to not rely on WotC to keep faith with the OGL 1.0a and future licensing vehicles.
There are a couple of initiatives - the Paizo generated OGL (Open RPG Creative License (ORC)) and the Project Black Flag from Kobold Press - that may capture some of the Third Party Publishing Market.
In the near-to-mid term, you may see a reduction of new Third Party Published material reduce or totally dry up for this edition, or it will be published under a different license.
In the mid-to-long term you can expect to see a different approach by WotC for the next iteration of D&D, currently called One D&D, as regards Third Party Publishing. What that is cannot be answered now. That edition is not yet released, and will not be until some time in 2024.

Answer 5

WotC updated their stance on OGL 1.1 on January 18th, 2023. The next day they published an updated document labeled proposed/draft OGL 1.2 here.

Notable items they asserted will not be impacted:

• Your video content (commentator, streamer, podcaster, liveplay, or video creation).
• Your accessories (minis, novels, apparel, dice, and other items related to gameplay).
• Non-published works (paid DM services, consulting, etc.)
• VTT content (you will be able to use OGL content for online play).
• DM Guild content (the Community Content Agreement will not be changing).
• OGL 1.0a content (content you have previously published under OGL 1.0a).
• Your revenue (no royalties or financial reporting requirements).
• Your ownership of your content.

Notable things they didn't rule out is the rumor they plan to change the license on all 5th edition and future books to be the new OGL. They also didn't confirm you will be able to publish new material using OGL 1.0a for previous versions of D&D (e.g. version 3.5, Pathfinder, etc.)

In the publication of the proposed OGL 1.2, they clarify their stance on one major point:

Deauthorizing OGL 1.0a. We know this is a big concern. The Creative Commons license and the open terms of 1.2 are intended to help with that. One key reason why we have to deauthorize: We can't use the protective options in 1.2 if someone can just choose to publish harmful, discriminatory, or illegal content under 1.0a. And again, any content you have already published under OGL 1.0a will still always be licensed under OGL 1.0a.

The effect of this would also be ending the right to publish new content for 3.5 edition. It is a major change that they downplayed in the announcement on January 18th.