Image by Samiran Modak from Pixabay, slight color tweak by Mike

This is not the article that I intended to post today (that’s still somewhere in the pipeline). Real-world events have overtaken my planning and this post is in response to those events.

Some of the language may be provocative or even incendiary; I make no apologies for that – this is a subject that has a lot of people very angry and unhappy, and this emotional landscape is reflected in the things that they are saying and writing.

The middle part of this article quotes, in full, a Quora answer by Edward Conway, which he has graciously permitted me to quote in full. It’s the most complete summary of events up to the date of its original publication that I have seen, anywhere, bringing together a lot of material and opinions that I had encountered in bits and pieces elsewhere.

After that quoted text, I’ll be back to offer my 20¢ worth on the subject.

First, though, a preamble to describe the state of mind in which I think these events should be interpreted.

Bad Decisions 1

On December 6, 2000, the music industry declared war on file sharing, especially targeting Napster, through the courts. Fair enough – I may disagree with their motivations, but have to concede their right to do so. But this led them to view the consumers who paid for their product as criminals until proven otherwise, because Napster was far from the only peer-to-peer file-sharing service, and the lawsuits were ineffective in achieving the stated goals as a result.

Legal academic Lawrence Lessig wrote, in his 2004 book Free Culture: The Nature and Future of Creativity, “When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements ‘down to zero.'” Since Napster were unable to do so, the record companies through the RIAA targeted the (potential) users of these services, i.e. their own customers.

The Rootkit Scandal

In 2005, this led Sony BMG to incorporate copy protection on the CDs that they published, and if that was as far as they had gone, it might have been seen as a reasonable measure. But it wasn’t; they also incorporated a rootkit, software that actively probed and modified any computer through which an attempt to play the CD was made. Even worse, the rootkit undertook active measures to obfuscate what it was doing – it was a deliberate malware infection of those computer systems, and it opened points of vulnerability that other malware was able to target.

The resulting public outcry, government investigations, and class-action lawsuits led to a rescinding of the policy in 2007 and a recall of about 10% of he affected CDs. But it took relations between the recording industry and their customers to a new low, and caused many who had been neutral or even supportive of the industry’s active pursuit of copyright infringers to turn against the industry.

See Sony BMG copy protection rootkit scandal for more information.

RIAA Lawsuits vs Individuals

Studies in more recent times have attempted to quantify the scale of the losses to file-sharing, with estimates ranging from negligible to moderate. Nevertheless, the Association began taking legal action against individuals who they alleged were destroying the industry. Amongst those targeted by these lawsuits were college students, parents of file-sharing children, a deceased grandmother, an elderly computer novice, and (allegedly) a family with no computer at all (see RIAA efforts against file sharing.

Winning the battles, losing the war

The RIAA and broader recording industry as a whole won virtually every battle in their war on file sharing, but paid a terrible price in customer relations. The war was never fought to a conclusion; iTunes and legal downloads rendering the conflict largely moot. The recording industry was already imploding by this time, as shown by the number of gold, platinum, and diamond records that have been certified each year.

At first glance, such a list (sourced from here) seems to disprove the argument. But if you look more closely, you’ll find that the list includes both singles and albums. Sorting it by year of release and then release type separates the two. The date of certification is also important; in more recent times, digital downloads, streams and even youTube plays count, before 2016, it was sales alone. This change caused The Eagles Greatest Hits to jump from somewhere around the 26 million mark to 38 million (I’d be more specific, but I lost the link to the source, so I’m working from memory).

I especially want to call attention to Visualizing 40 years of Music Industry Sales by Nick Routley and the graph that heads the article. They grant the right to use the graphic so long as it isn’t resized, but I can’t fit it onto Campaign Mastery’s page size without doing so – the best I can do is link to it.

It shows, graphically, how music sales dipped catastrophically for years, dropping from a peak of 21.5 Billion US$ in the late 1990s to 6.9 Billion US$ in 2015, a 17-year decline. Part of this is no doubt due to increasing competition for retail dollars, part of it is due the loss of the marketing channels (and loss of relevance of those that remain) when MTV switched from music videos to reality TV, and part is due to the various sources of ill-will caused by the war on the consumer from 2000 to 2008.

As an exercise in shooting yourself in the foot, at least in terms of Public Relations, the 2000-2008 period was a bell-ringer.

Bad Decisions 2

There are a lot of parallels with a more recent series of catastrophic decisions – I am, of course, referring to Elon Musk’s takeover of Twitter. Musk offered three times what the platform was worth, tried to back out of the deal, but was forced by the courts to go through with the purchase. In order to pay the interest on the loans taken out to fund the purchase, he needed annual revenues of 2.2 Billion US$ – from a service whose best year was a profit of 1 Billion US$ and is usually significantly less.

In an attempt to boost profits, Musk sought to relax moderation in an attempt to lure back the more populist and egregious users who had been evicted from the platform under the previous ownership. He described this as supporting Free Speech (I’m trying to be as politically agnostic as I can here).

He also fired more than half of the employees who kept the service running, and imposed working conditions so draconian that any who weren’t fired would have immediately started looking for employment elsewhere. The really good people would have found it; ultimately more than 90% of the staff left. And the only reason the total is that low is because Musk was forced to hire back a number of critical staff. This wasn’t just cost-cutting, it was cutting off your nose to spite your face, and a direct consequence of not understanding how the business worked and what these people actually did for the company.

The loss of public confidence that these measures raised was only compounded by a hypocritical attitude towards Free Speech when Musk began banning members of the press and public who were critical of his management decisions. This led one of the largest advertisers on the platform to ask questions of him that were quite neutral in tone; Musk banned them, too.

Its reported that revenue has fallen by 21/22nds as a result. Advertisers are deserting in droves, according to some sources. Meanwhile, users are also defecting, some driven away by a lack of confidence in the platform, some by the absence of adequate moderation, some by the rush of extremists (mostly from the right wing of politics) returning to the site. Even more are retaining their accounts (so as not to lose touch with their friends and contacts) but are no longer active on the service. This only worsened when Musk attempted to make mentioning any other form of social media account a banning offense.

There are now so many ways in which the entire operation can now fall apart that there are long odds against it surviving the next year.

In terms of public relations, this is a long string of bad decisions, and it has run Twitter into the ground. Whether or not it can recover from this position remains to be seen.

And that brings me to the terms of the new Open Gaming License from Paizo/WOTC…

What are the ramifications of the leaked draft language of Wizards of the Coast’s upcoming new version of D&D’s Open Gaming License? How would the new license’s terms change D&D gaming and content creation? What existing content would be effected?

Answer by Edward Conway,
Reproduced with permission from the Author
Originally posted January 6, 2023, Updated January 9

Wizards just declared war on Pathfinder, Critical Role, Roll20, and every other entity outside of Wizards that creates or sells D&D content. And yes, that includes DMs and homebrew content.

In the year 2000, D&D makers Wizards of the Coast granted 3rd parties and individuals the right to create and sell content using parts of the D&D ruleset, without payment to Wizards, free from the threat of legal action as long as they abided by the terms of the OGL 1.0.

They are attempting to revoke that right, for all D&D content: past, present, and future.

(image creator Patrick Correia, details in footnote[1] )

The new OGL license states that it goes into effect Jan 13, 2023, and that the old licenses are no longer valid.

The original OGL allowed content creators to create content based off of a portion of the D&D rules of 3rd Edition and 5th Edition known as the SRD. As long as this content abided by the rules, content creators could make and sell their content without having to fear being sued by Wizards.

The resulting multi-million dollar content creation industry has led to greater popularity of D&D and has vastly increased the number of players and DMs. The primary reason that 3rd and 5th editions became so much more popular than other editions was the increased freedom of players and DMs to create new content for their games, and to do so without the threat of being sued.

That is ending.

The new OGL states that the old license is no longer authorized.

No where in the terms of the OGL is it stated that Wizards can de-authorize a license. The official statement by Wizards on its page explaining the terms specifically states that Wizards cannot remove the ability to use an existing license:

7. Can’t Wizards of the Coast change the License in a way that I wouldn’t like?

Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway. [2]

Note that Wizards deleted this from its website shortly before releasing the new terms, to hide its tracks.

Then Vice President of Wizards Ryan Dancey, the man who created the original OGL, has stated clearly that Wizards and Hasbro does not have the power to de-authorize a license:

Yeah my public opinion is that Hasbro does not have the power to de-authorize a version of the OGL. If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license. I am on record numerous places in email and blogs and interviews saying that the license could never be revoked. [3]

There is no grandfather clause in the new license text, on the contrary, the new OGL states that all creators who created and sold under the original license must now switch to the new license.

This directly contradicts the terms of the original license:

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License. [4]

The meaning of this becomes clear when you examine how the license has changed:

1. OGL 1.0 covered 3rd edition content.
2. GSL (a different license) covered 4th edition content.
3. OGL 1.0a covered 5th edition content.

All of these licenses have been established as valid and authorized by Wizards. Wizards has not taken any action to de-authorize any license over the 22 years OGL has been in force, until this month. The contract language does not grant Wizards the power to de-authorize an existing license. The contract specifies the process Wizards must follow if there is a contract violation: notification, 30 days period to rectify the violation, followed by termination of only that license holder’s contract, not the license as a whole.

Wizards has failed to follow the terms of its own contract.

Under contract law, parties to the contract can only change the terms in ways spelled out in the contract. Wizards of the Coast, in its attempt to unilaterally de-authorize existing licenses, is potentially in breach of its contractual obligations under those licenses.

The action this month by Wizards goes against the terms of its contract, the statements it made about that contract to licensees, and the stated intent of the creator of that contract. If you take nothing else from this answer, understand this: Wizards of the Coast is attempting to change a binding contract it drafted, signed, and has supported for 22 years, without the permission of license holders and in possibly violation of the law.

Beyond that:

1. The new OGL states that Wizards of the Coast can modify the terms of the license at any time, for any reason, and the sole requirement is to give 30 days notice by posting the changes to their website.
2. The new OGL states that Wizards can revoke any creator or company’s permission to create, sell, and distribute content for any reason, and that the sole requirement is to give 30 days notice.
3. The new OGL states that if a company has their license revoked, they must, within 30 days, delete and destroy any and all material that uses D&D content. Yes, you read that right: this gives Wizards the power to order Critical Role to delete all videos, books, etc., if they choose. This gives Wizards the power to order Netflix to take down Stranger Things. This gives Wizards the power to order Paizo to destroy all Pathfinder books, and to remove all Pathfinder games from Steam[5].
4. The new OGL lays out the requirements to register with Wizards (along with how often you have to report your income to Wizards), and states that Wizards shall have a right to publish, sell, and distribute, any and all content created, without paying anything to the content creator. This license is stated to be perpetual, unlike the new OGL license to use D&D content. Yes, Wizards is copying one of the core mistakes of the Warcraft 3: Reforged[6] debacle by Blizzard: anything you create, they can sell without paying you a penny.
5. The new OGL lays out the royalties content creators must pay Wizards for the right to sell their content, based on platform, type of content, revenue, etc. It details the special deal Wizards negotiated with Kickstarter to reduce the royalties cut Wizards will demand from all Kickstarter funded D&D projects[7] . In the linked article, Kickstarter states that it did not receive any payments as part of this deal.
6. The new license forbids lawsuits and requires binding arbitration to settle any disputes.

Will there be lawsuits?

Hell Yes. I am not a lawyer, but based on the analysis and commentary of at least one lawyer who is also an avid gamer[8], the new OGL terms, if enforced successfully, would shutdown most tabletop roleplaying companies.

Edit: There have been some great additions posted in the comments section [of the original answer], including responses from Pathfinder publisher Paizo and the creator of the original OGL, and videos with further legal commentary. Big shout out to Maya Deva Kniese for the updates.

Royalties are not the issue: paying royalties is commonplace. The core issue is three-fold:

1. Wizards can shut down any company within 30 days, without any requirement for cause, and with limited to no right to appeal.
2. Wizards can order any company or creator to delete or destroy all copies of their products, again, with no requirement for cause or meaningful route to appeal.
3. Wizards can change the terms at any time, in any way, and the new terms will apply, with no right to sue to force Wizards to abide by the terms originally agreed to.

No company in the world would agree to such an unbalanced contract.

Doing business requires a degree of certainty and stability, and this license provides neither.

Netflix has sunk millions into Stranger Things. Critical Role has sunk tens of millions into its videos and products. Paizo, makers of Pathfinder, which surpassed 4th Edition D&D in popularity, makes approximately 12 million a year.

On January 13th, the perpetual and irrevocable license Wizards issued will end, jeopardizing 22 years of D&D content creation and sales.

There will be lawsuits.

While I am not a lawyer (I would welcome commentary and answers by those who are), even I know that attempting to unilaterally change the terms of a 22 year old agreement that a multi-million dollar industry depends on will result in lawsuits.

Beyond that, this breaks the social contract of Dungeons and Dragons.

For 22 years, we players, DMs, and content creators have been free to add to the hobby, creating new classes, races, spells, abilities, and settings.

This freedom built D&D, literally: the vast majority of content in the official rules started out as player and DM created homebrew. Paladins, Monks, Bards, Skill Proficiencies, Feats: all of these were created by players and DMs, shared within the community, and later incorporated into the official rules.

Dragonlance began as a homegame, and grew into a published series with 190 novels published[9] . All because of a homegame.

Critical Role has launch massive online streamed campaigns that have been adapted by Amazon Prime Video (thank you to Colin Byrne for correctly my Nat 1 Perception check) after a Kickstarter raised $4.3 million on the first day, raising $11.4 million during the whole campaign. This started as a homegame.

Stranger Things, at 4 seasons in, is still the most popular show on Netflix, and it is about a D&D homegame.

Under the new terms, none of this will be possible in the future, and everything that has been created can be destroyed by Wizards at anytime.

Wizards of the Coast, with the new license, is attempting to kill the D&D community’s ability to run homegames, to create and sell content for homegames, and to celebrate our homegames.

That breaks the foundational social contract of D&D: that players are DMs should be free to create, modify, and add to the game, and share what they add with the community.

This is a declaration of war against the D&D community, and it should be treated as such.

Footnotes

[1] File:Book burning.jpg – Wikimedia Commons
[2] Open Game License: Frequently Asked Questions
[3] Ryan Dancey — Hasbro Cannot De-authorize OGL
[4] Open Game License v1.0a
[5] D&D’s stricter licensing rules might impact some beloved RPGs
[6] “Warcraft 3: Reforged” Is A Disaster — Here’s Why Fans Are So Upset
[7] Dungeons & Dragons’ New License Tightens Its Grip on Competition
[8] https://www.youtube.com/watch?v=oPV7-NCmWBQ
[9] List of Dragonlance novels – Wikipedia

Further Developments & Opinions

The first lawsuit?

https://www.reddit.com/r/Pathfinder2e/comments/10496c9/a_letter_sent_by_a_genuine_lawyer_to_wizards/?utm_source=share&utm_medium=ios_app&utm_name=iossmf

John McKnight

John McKnight, in a comment to the original article, wrote,

I know several people who are already committing to not give Wizards any more money, for any products. Players ready to give up MtG [Magic The Gathering] , even. Because of this announcement.

He also provided a link containing “more information. Including copies of WotC’s earlier statements regarding potential OGL changes:” D&D: WotC’s OGL 1.1 Leaks Get More Confirmation, Creators React

Hahn Ackles

Also in a comment on the article, Hahn Ackles points out:

The worst part is that unlike the original OGL, the new license specifies that when it comes to digital content it can only be used for “static digital products”, such as PDFs.

Which sounds semi-reasonable until you realize that means interactive character sheets and character building apps, which are super f***ing popular, are no longer allowed.

(My censorship).

In a separate comment, he suggests that all the goodwill that WOTC had generated with their apology and open playtest leading up to 5e have just evaporated, a point with which I concur.

In fact, having lost and then regained that goodwill and now having lost it again, it will be ten times as difficult to regain it, in my opinion.

Greg Hunt

Greg wrote an extensive comment in response to the article, pointing out that this is a scorched-earth policy; there is no way back for Wizards. Once public trust in an institution is lost, it’s lost for a VERY long time.

That means that players, creators, and game companies that have supported D&D under the aegis of the original OGL will depart and will not come back.

William Tait MacDonald

William wrote about the legal requirements that have to be met for a contract to be binding, pointing out that the proposed license fails to meet those criteria.

In particular, agreement to the license has to be uncoerced. Applying new terms retroactively, which is what this license seeks to do, and using intimidation and threats toward anyone who does not agree to apply those terms retroactively, is overt and clear intimidation.

He also points out that this is an attempt to “re-copyright” material that the copyright owners (Wizards) renounced rights to and placed in the public domain under certain usage conditions spelled out in the original OGL – but copyright doesn’t work like that. Once you give up rights under copyright, you can’t take them back again.

More Resources

Edward himself offered a link to a Reddit thread that can be considered a hub for analysis and commentary on the subject.

The Paizo Response

On Friday, the day that the new license was to take effect, Paizo issued a press release announcing their own system-neutral open license:

PAIZO ANNOUNCES SYSTEM-NEUTRAL OPEN RPG LICENSE
Industry-leading Independent Publishers Seek Return to Open Gaming

[REDMOND, WA, January 12, 2023] – In response to rumors that an upcoming revision of the Open Gaming License (OGL) by Wizards of the Coast would “de-authorize” this keystone of the modern tabletop roleplaying industry, Paizo has begun work on a new open, perpetual, and irrevocable Open RPG Creative License (ORC).

Since 2000, the OGL has improved the community, incubated creativity, and grown the business of not only the licensees but the licensor. A stated goal of a perpetual and irrevocable OGL was to ensure the establishment and longevity of gaming networks and to drive sales to both. Recent reinterpretation notwithstanding, it succeeded. Many companies including Wizards of the Coast have benefited from that growth.

The Open RPG Creative License (ORC) will be built system agnostic for independent game publishers under the legal guidance of Azora Law, an intellectual property law firm that represents Paizo and several other game publishers. Multiple leading publishers have already signed on to the effort to create a new and truly open license that allows all games to provide their own unique open rules reference documents that open up their individual game systems to the world.

Complete details may be found on Paizo’s blog.

It’s not ready yet – but it’s coming. Even if Wizards were to rescind the new license, so much trust has already been lost that, when offered an alternative, people will jump ship.

My 20¢ Worth

This was a PR disaster from start to finish. There has been immediate fallout – which shows how thin the layer of accrued trustworthiness actually was.

This is not surprising; for every positive step they take, WotC shoot themselves in the foot and fall back a step. It’s happened before, with the GSL, as others have pointed out. And it happened when it became known that Wizards ignored play-testers’ feedback in the development of 4e.

The consequences are many-fold and even if the eventually-released form of the license is without the many, many nasties described, not all of them will be – can be – undone.

Immediate Impacts

I’ve broken my analysis of these consequences into to major categories – immediate (those that have already happened) and rumored/potential future consequences, assuming that Wizards stand firm.

Public Opinion

Ryan S Dance has a petition asking Hasbro and WotC to “make a clear statement that the #ogl v1.0a cannot be de-authorized or revoked” that has now accrued over 15 thousand signatures. This is indicative of the breadth of the public response to the proposed OGL, and backs up the opinions quoted above.

Subscriptions to D&DBeyond

A number of people claim to have canceled their subscriptions (but there are no hard figures available on how many have actually done so). Nevertheless, indications are that a significant percentage have ended their support.

What’s more, several of them have announced a decision to stop purchasing ANY WotC products immediately. A few have gone further and made it all Hasbro products. Again, I don’t know what percentage of their customer base this represents, but any loss of these die-hard supporters is bad news.

Unverified reports have started to emerge of WotC charging subscription renewals for those who have canceled their subscriptions. It’s possible that this is a simple error – anyone can make a mistake. It’s also possible that their systems are so overwhelmed by the number of cancellations of subscriptions that the part of their system that bills for renewals billed the credit cards of the subscribers before the cancellation could be processed – it would be poor systems design, but that’s still quite believable. But finally, it’s possible that someone has decided to charge subscribers who have canceled anyway, because many people don’t check their statements or might think, ‘well, I’ve already paid for it, so I might as well use it’.

Why does all this matter? Because there is evidence (of unproven provenance) that WotC are using D&DBeyond subscriptions as a way to measure public opinion in response to the OGL. What gives this credibility is that the message makes certain claims (for example that roll-out of the new OGL has been delayed because of the backlash) that have since been proven accurate.

Pathfinder

Were Paizo still selling Pathfinder 1.0, they might well have been vulnerable to the problems described in Edward’s post. However, it’s my understanding that one of the primary objectives of the rewrite that became Pathfinder 2.0 was to remove all SRD content – if true, then Pathfinder would have been immune to legal action by Wizards except through concatenation, a much harder debate to have.

Yet, this flies in the face of the reported ‘first lawsuit’ mentioned above, so perhaps Paizo themselves were not all that confident.

Successful past Kickstarter campaigns

Picture this: you’ve had a successful Kickstarter campaign, have written the text and sourced the art, and the whole thing is about to head off to the printers, who have a signed contract to provide you with the hardcopies to fulfill the orders of your backers, when the license under which your product is to be published is retroactively revoked.

Either you don’t have the money to rewrite the product, leading to the cancellation of the whole project and ill-will all round, or you do, but it means that you make no profit (or less profit) on what has been months of work. RPGs are generally published on a shoestring, and any unexpected major expense or delay can be fatal.

Either way, a loss of confidence on the part of your backers is likely to result, no matter how understanding they may be about the circumstances.

Lawsuit? Maybe. Certainly, you could establish a financial loss as a consequence of the change of license.

Current Kickstarter campaigns

That loss of confidence would also be felt by any fundraising campaigns currently underway. The threat alone could be enough to cause several projects to be canceled, possibly with the intent of rebooting them once the dust settled.

Retail Sales

If customers won’t buy a producer’s merchandise because of something that producer has done, the retail outlets will often simply return the unsold (and unsalable) product and demand a refund. There were rumors that this effect alone was going to cost WotC millions of dollars in the month of February.

Publishers of existing product

Fat Goblin Games bundled up their entire catalog of OGL material and offered them for sale at a ridiculous discount. They called it their ‘F*CK WotC Bundle’ (but were persuaded to rename it by DrivethruRPG. The implication of the language used in the announcement is that once the new license comes into effect, sales of these products will stop.

In the same announcement, they offered:

“A lot of you are looking for other, non-OGL games to check out because screw supporting corporations only interested in $$$. And I totally get that, so I talked to a bunch of my friends and associates and we put together this amazing bundle of games for you. These games are all core books or complete books, cover an assortment of genres, and vary in complexity and rules systems.

TRY THIS RPG [BUNDLE]

Nearly 30 games are made available for you to check out and at a great price. Give it a try, let me see what you think, and maybe you’ll have a new favorite publisher! Available for the next week, but act fast!

Maximilian Hart of d20 Digest mentioned the whole kerfuffle when announcing that his new adventure was now available through DrivethruRPG

But with the way the winds are blowing, I thought it best to release under 1.0 instead of 1.1 – and if that makes no sense, just search the Internet for “D&D OGL” and “mess” and “on fire” and you’ll catch the drift quickly enough!

(The adventure is “Pearly Prison Of The Crocodile Queen“, available through the link provided).

Dungeon Master’s Workshop issued a statement over Twitter about their future with D&D. In part, it reads:

“Dungeon Master’s Workshop will not sign the new Open Game License (OGL) 1.1. We categorically reject Wizards of the Coast’s ability to de-authorize OGL 1.0a, which has allowed for mutually productive partnerships for the last 20 years. Their attempts to pull the rug out from under the creators – who have supported the brand and grown D&D into the world’s greater roleplaying game – are wrong, in bad faith, and almost certainly illegal.

We also categorically reject their demands that we pay royalties to use what we have already been allowed to use royalty-free in perpetuity, or to hand over our rights to control our intellectual property and allow WotC to use and sell what we create without permission, compensation, or even credit. These are demands that no creator could accept, and WotC is wrong to make them.”

They also state, “Several major 3PPs (third-party publishers) have already announced their intentions to create an entirely new system, including Kobold Press and MCDM”. Other creators have joined with DMW to create a “non-OGL and non-WotC version of an SRD that can be used commercially, royalty-free, forever.”

Publishers of future product

Also last Friday, Beyond The Horizon Games sent out a newsletter which announced their decision not to accept the terms of the new license. They have two products for 5e already in development which they intend to complete under the terms of the old OGL, in other words relying on Wizards intent to apply the new license retroactively as a legal overreach that will not stand.

Beyond those two products, they will be looking to support other game systems – they have yet to decide which ones.

Rumored / Potential Future Impacts

It may be getting ahead of myself in the story, but these impacts are unlikely to now proceed, for reasons described at the end of the article. In essence, Wizards have capitulated in all the areas that mattered to gamers. If they had stuck to their guns, however, these are the impacts that I foresaw.

Lawsuits

If there’s one message to take away from Edward’s post and the comments that it engendered, it’s that there would have been lawsuits. But very few companies are big enough to take on Wizards directly, let alone Hasbro; for that reason,, I suspect that most lawsuits would quickly coalesce.

Class-Action Lawsuits

….into one or two much bigger class action lawsuits. Preparations for at least one were rumored to be underway as of Friday. Quite often, the first one becomes a lodestone for all the smaller legal actions, and also teases out of the woods other parties who were not initially willing to risk legal action against so big an opponent..

Restraint Of Trade

Although it might look like any third-party publisher who had produced, or was intending to produce, 5e-compatable product could make a prima facae case against Wizards on the grounds of restraint of trade, several lawyers have publicly discussed this and concluded that for technical reasons (mainly that Wizards would not be preventing them from publishing something), such an action would be unlikely to succeed.

However, you can never be 100% sure of what a court of law will do, and the claim could have been used as a foundation to establish other grounds for legal remedy. So the notion would not have been completely set aside.

Retail Quagmire

No retailer likes stocking products from producers who are on the nose. At least some of them are likely to have boycotted Wizards products. The biggest retailer that this might have applied to is Amazon. The result would have been disastrous on Wizard’s bottom line, putting it into a financial position similar to that of TSR at the time of its’ collapse and acquisition.

New Product

Third-party producers have already started pulling away from D&D as a result, as described earlier. If Wizards had maintained a hard-line approach to the new OGL, this would have accelerated. This has an impact on the long-term viability of the product, inevitably, and this in turn would have turned some people off running the game. Something else would have been newer and shinier.

Nothing Has Happened – Yet

The new license came into effect on January 13th, or at least, it was supposed to. As suggested earlier, it has been delayed (this was going to be a much larger section of the article, but then this happened):

The Last Word (maybe)

After a week or so of all of the above hitting the fan (and the internet), came an official statement from WotC on the status of the OGL.

It spells out what they claim their motives and intent were with the update – and those sound entirely reasonable.

It alleges that the ‘leaked’ OGL was actually a draft that was deliberately intended to open public discussion on the subject. If true, it has to be the most inept such roll-out in the history of mass communications.

But it also admits that the language used in the agreement was a total and unmitigated disaster, implying and capable of being interpreted in all the nasty, nasty ways described in Edward’s Quora post. The claim is made that these interpretations were complete surprises to WotC – if true, either they failed to consult their lawyers (improbable) or they should fire those lawyers.

There’s a problem, though. Quoting a date effective of Jan 13 for a ‘proposed’ policy change that was being offered ‘for review and discussion’? Nope, that simply doesn’t wash. So at least part of the official statement is an attempt to rewrite history, to save face.

It’s also a bit rich to expect to announce something on the same date as it is to take effect and still expect debate and discussion on any rational basis to result. To me it seems far more likely that they really did intend to try and sneak one past the gaming community and got caught – badly. But that’s just my opinion.

The rest of the announcement is essentially a mea culpa, walking back, one item after another, all the things that people have raised such vehement objection to, and begging for the chance to ‘make this right’.

You can read it for yourself at this link.

Unfortunately, the clumsiness with which this has all taken place (if innocently meant, as WotC claim) has burned bridges. All that goodwill has gone ‘poof’. This is an unqualified PR disaster.

Many are holding their breath and waiting to see what terms the actual final document actually contains, but many business decisions have already been made on the assumption that the leaked document was going to be implemented as written, and those have a momentum of their own – some will be irrevocable. The official response is too little, too late.

The time to make such a public announcement – even if it was less complete and comprehensive – was the day after WotC realized that it had leaked, not more than a week after the fact.

They failed to get ahead of the story, and so the story has gone beyond their ability to control the consequences. And that’s true regardless of what WotC’s actual intent was.

No matter how you slice it, this has been a PR disaster for WotC, and one of the moist significant events of the past 22 years for the Tabletop RPG industry.

Have Wizards done enough to stop the hemorrhaging Time will tell, but I suspect that they have simply slowed it, and it will only stop when a ‘clean’ OGL is publicly released. And maybe not even then. Trust is sometimes a precious and rare commodity, and Wizards have very little of it on tap to draw upon.