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Feedback to WOTC on the OGL 1.2 Draft

by Mike on 20 January 2023

Wizards of the Coast released a new draft of their "Open" Gaming License version 1.2 including releasing the core mechanics of the original 5e System Resource Document version 5.1 under a Creative Commons license. That's pretty great but it's still not as good as what we had and expected to keep with the OGL 1.0a.

Today they opened a survey for feedback and now is our opportunity to provide that feedback.

Most of us aren't lawyers or have any background (or interest) in contracts like this. So I've talked to a lot of people, including lawyers, to try to get a consensus of these licenses and the feedback we can provide to WOTC.

Thus, here's the feedback I plan to provide:

Don't attempt to "deauthorize" the OGL 1.0a. The best way to begin to repair the D&D brand is to not attempt to "deauthorize" the OGL 1.0a. It's not even clear it's legal to do so and it certainly goes against WOTC's original intent of the agreement we shared. WOTC's using a one-word loophole in ways several attorneys say is questionable or even unlawful.

Further, "deauthorizing" the OGL 1.0a has tremendous downstream consequences for publishers who trusted WOTC and used the OGL to share their own material downstream. If the OGL 1.0a is deauthorized, it means they can't share the material they intended to through the OGL 1.0a.

Don't attempt to deauthorize the OGL 1.0a.

Release lists of the names of species, spells, magic items, and monsters in the 5.1 SRD under a Creative Commons CC BY 4.0 license. WOTC releasing anything under a Creative Commons CC BY 4.0 is a huge step forward. It's a well used and well trusted license. In WOTC's OGL 1.2 draft they state their plan to release the core mechanics of 5e except for classes, species, monsters, magic items, and spells.

Include the lists of names of species, monsters, magic items, and spells. This is very likely material we could use anyway under copyright law but it helps if we know that WOTC agreed. Releasing these lists under the CC BY 4.0 helps considerably when writing 5e compatible adventures and campaigns.

Even better? Release the entire 5.1 SRD under a Creative Commons CC BY 4.0 license.

Use independent third party arbitration for hateful content. There's no way WOTC should have the sole right to decide what is hateful content. WOTC themselves had trouble with this within the past four months. There's no way WOTC should have full authority over what is hateful and no way that a licensed publisher should have no recourse to defend themselves. The world also changes. Material considered obscene years ago is now embraced and vice versa. This is such a complicated topic it's probably best removed completely.

Add "Royalty Free". The current draft OGL 1.2 does not describe itself as a "royalty free" license. The license should declare itself to be "royalty free".

Make it Truly Irrevocable. As written, the OGL 1.2 redefines irrevocable to mean that the license can't be revoked when applied to a product but not that the license itself can't be revoked. This license, on its own and applied to their system resource documents, should be irrevocable. This is the whole reason we're in this problem to begin with. I, for one, never want to have this conversation again.

Rewrite the termination clause. As written, the termination clause in the OGL 1.2 is far too wide. Who determines if a licensee has infringed on WOTC's intellectual property? How is that arbitrated? This whole statement over-reaches and can be used by WOTC to penalize just about any creator if they want to.

Rewrite the severability clause. As written, the severability clause in 9(d) almost certainly gives WOTC the ability to invalidate the license. Given that WOTC intends to attempt to deauthorize the OGL 1.0a on a technicality, I have no faith WOTC won't try it again here.

State that if any provision is ruled illegal or unenforceable, the remainder of the license's provisions remain in effect. Also if the agreement or any provision is ruled illegal or unenforceable in a specific jurisdiction (e.g. country or state) the license and those provisions remain in effect for all other jurisdictions where they have not been ruled illegal or unenforceable.

Other feedback:

Section 3(a) - Strike language prohibiting creators from seeking injunctive relief.

Section 6(e) - Strike or rewrite to account for international laws. A creator in the US can't be expected to abide by laws in other countries and vice versa.

Section 7(b)(ii) - Expand time to cure to 180 days and better define what actions are sufficient to cure a breach.

Not Covering the VTT Stuff

This feedback doesn't cover the VTT policies described in the OGL 1.2 draft which are significant. See the feedback provided by Foundry for a better understanding of how this affects virtual tabletops.

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