Matt Mercer of Critical Role hasn’t commented publicly on this yet, but he did like this Tweet from Cam Banks (Cortex System RPGs).
OGL 1.1 is not an open license , although WotC tries to claim that it is. It’s a severely restricted set of licenses (commercial and non-commercial) that grant WotC broad rights to the Works of Third Party Creators, and requires incredibly high royalty percentages in exchange for continuing to create. Third Party Creators who agree to OGL 1.1 grant WotC the right to reprint, distribute, and otherwise exploit the Third Party Creators’ Works without any compensation, and also require the Third Party Creators to pay WotC a royalty if the Third Party Creator finds enough success with their work.
Q: I’m a Third Party Creator — should I sign OGL 1.1?
A: I cannot tell you whether to accept OGL 1.1 or not — but I can supply you with information to help make your decision. Here’s a breakdown of the important points:
- Any Third Party Creator that signs OGL 1.1 will be bound by the terms of OGL 1.1, as currently written and subsequently updated.
- Agreeing to OGL 1.1 means that you will have to 1) report what Works you (or your company) are making to WotC, 2) report revenue from your Works to WotC, if above $50,000, and 3) pay WotC a 25% royalty on revenue over a certain threshold (currently $750,000) from your Works.
- You will own your own content and Works, and can distribute them to certain places. However, WotC will receive a perpetual, irrevocable right to use your Works, and to allow others to use your Works, without additional payment to you. This would allow WotC to publish these Works in places you would not be allowed to, and to allow others to do the same.
Your Works are the core of your business — it would generally be a bad idea to give someone else near-unlimited access to your business.
Q: Wait, $750,000 sounds like a lot. Doesn’t this only affect a few huge companies?
A: No, not necessarily — for several reasons.
- While $750,000 seems like a large number, that’s based on gross revenue. Gross revenue is the total of all money generated from a Work, without taking into account any part of that total that has been or will be used for expenses. In many cases, a Third Party Creator’s actual profit will be less than 25%, because of expenses for artists, writers, marketing, etc. In addition, the Third Party Creators have to pay platform fees for distribution (approximately 7% for Kickstarter, 8% for Patreon, and 20% for Roll20). Therefore, a 25% royalty on gross revenue can actually cause a Third Party Creator to lose money — if they even try to make the Works in the first place.
- The $750,000 amount is the current threshold for WotC to impose a royalty. This number can be freely changed by WotC at any time, simply with an email to you. It is likely that WotC will rely on the $50,000 revenue reporting threshold to determine how much to reduce the $750,000 royalty threshold by, so that they can incrementally increase the number of Third Party Creators subject to the license.
- Kickstarters have no cap on revenue you can raise for your project, so if you Kickstart a successful campaign, then you may end up accidentally crossing the $750,000 threshold — and suddenly having a new expense that you did not account for in fulfillment of your project.
I do believe that there are potential legal challenges to the revocation of OGL 1.0a, especially given the length of time Third Party Creators have relied upon OGL 1.0a and the speed with which WotC has taken action to revoke it. However, these challenges would have to take place in court.
I disagree with Cam Banks there pretty hard. D&D has always been the number one RPG in the world, and while it’s definitely not because it’s the best, I also don’t think it’s because of the OGL. There’s so much OGL content because it’s the number one RPG, not the other way around. It’s self-reinforcing. People know D&D that don’t know what an RPG is. People contort D&D to play things instead of doing them in games designed to do those things. If they ended the OGL today, people would still play D&D, they just wouldn’t get to sell stuff for D&D. And honestly even that is something that would still happen because there have been third party books designed to be played with an unspecified fantasy RPG that’s definitely D&D but they can’t say so for decades before the OGL. It was harder for both writer and players, but they did it.
I don’t like any of the above. I don’t want D&D to be the number one dominant RPG, for one thing. I just think it’s true. Also not to say I approve of the current OGL situation. I think the original OGL was a very smart move and certainly helped further entrench D&D for Wizards and I think the moves they appear to be making are probably self sabotaging and will likely harm a great many other creators (though I could hope they would move on to games I like better). But I just don’t think it’s critical to the ongoing dominance of D&D.
Going to court over it isn’t really an option for anyone other than WotC/Hasbro. Even Paizo operates on the margins. Which is why big companies can pull these kinds of shenanigans. Critical Role can probably afford to go to war, but I have to imagine that WotC will be cutting them a special licensing deal.
But we’ll see. I would not be surprised to see the final version of the OGL walking some of the bullshit back, but also would not be surprised if stays just as the leaks indicate.
I would add incidentally that there are a bunch of other RPG systems that have some sort of OGL equivalent including Unknown Armies, Gumshoe, and Cortex. There has been some uptake but none of those games has anywhere near the sea of third party content D&D does or anything like the market dominance. Meanwhile I believe 4E D&D was not covered by an OGL equivalent and while it’s remembered as a failure it was still the biggest RPG in the world at the time and not by a small margin. I think OGL is cool. I don’t think it’s the key.
I like Cam Banks’ work, but I disagree with that tweet too. D&D was successful and became the brand name TTRPG before OGL.
Still, I think Mercer liking the tweet lets you know something of his feelings on the OGL 1.1 matter. People forget that Critical Role started as a Pathfinder thing and switched to 5th later.
I agree that D&D would still be #1 without the OGL. Though it would be less popular because it wouldn’t have as much of a community ecosystem built up around it.
Some folks say that Pathfinder overtook 4e in sales for a time, but I’m not sure how much credence to give that.
Neither company made the specific sales numbers public, but I think the biggest indicator was going to cons. For a couple of years 4e was relegated to small tables while Pathfinder had all but taken over the play spaces.
The only hard numbers I’ve seen quoted was the hobby store volume sales in 2010 and 2011, which were voluntary and self-reported. Pathfinder beat 4e there by double-digit margins, but I would expect hobby store customers to be the more hardcore RPG players, so likely more invested in 3.5e already.
I believe this was the time that Pathfinder actually began to get traction and even surpassed 4E in numbers of players. There were at least some periods where reported sales from participating stores saw pathfinder books selling more than WOTC ones.
5E brought everyone back to WOTC though.
I think that they will have a very difficult time fighting in court over their term of “unauthorizing” OGL 1.0a, when the previous language would have suggested the license irrevocable on paper. These 2 terms are directly in conflict with each other. They are contradicting the terms of the original license with this new one.
WOTC lawyers would make an argument that they have every right to “unauthorize” something they have published, even when it was sold to companies as “irrevocable”. But the EFF (I would suspect will step in) could argue that you can’t “un-authorize” something that is “irrevocable”. These 2 terms are not completely legally distinct, as they function in the same way in this contract, and was further clarified to this effect by WOTC in that 2004 FAQ they published.
Lawyers can make up contract language and attempt to squeeze out of it through creative language, it is what they get paid to do. In the end though, that all has to pass the test of a judge and jury as being reasonable. It comes down to what precedent and a court case, possibly in front of a jury will have to say.
It REALLY looks bad for WOTC to try to revoke 1.0a (I say revoke, because that is what they are doing by “un-authorizing” the license). Because they have in the past sold this license as an in-perpetuity thing. They have benefitted massively financially and grown through this license, have previously clarified that the OGL 1.0a is irrevocable in their FAQ, and have been operating under that business license for over 20 years.
They can certainly try to revoke OGL 1.0a, but it feels like a pretty flimsy argument they came up with recently to try to take the “irrevocable” language out of the original license with some creative legal language.
OGL 1.1 will be able to basically screw over any small 3rd party publisher, but the large companies based on the OGL 1.0a license will likely be able to fight this in court… or WOTC will remove that language and just require all DND Next compatible 3rd party things to use OGL 1.1
To my understanding 4E consistently outsold Pathfinder, there was just more buzz around Pathfinder.
(And Paizo is a much smaller company so even managing to take that much of the market is impressive.)
Anecdotally, when I worked in a big corporate bookstore around the time (edit, sorry autocorrect)PF and 4e were released, we stocked and sold many more 4e rulebooks and other material than Paizo stuff. Obviously, a bookstore is different than a hobby shop or game store or online marketplace, but that is what I saw.
Actual play stuff didn’t really blow up until the 5e era but there were a bunch of 4E actual play podcasts in my early days with AP pods and I anecdotally don’t recall ever finding a Pathfinder actual play back then. or multisystem podcasts dipping into Pathfinder.
My suspicion is that a lot of the folks who talked about D&D online didn’t like the direction 4e was taking and found Pathfinder more exciting but that that was never that big a segment of the actual market.
I think both of these statements are true. I believe when people talk about Pathfinder’s dominance during 4e, what they mean is in the more hardcore hobbyist space and not the overall market. 4e flew off bookshelves like at Barnes & Noble while Pathfinder languished in the RPG section. The only time we saw 4e slow down was when they started coming out with the softcover books, but by then they were spooling up to start 5e.
The one undisputed leg up Paizo had on WotC during the 4e era was jumping on the pdf/online tools space faster. Imagine Paizo made a good chunk of money from pdf sales that 4e never saw because WotC stubbornly left that money on the table.
Back in those days, before Covid, I actually played at game shops and events and with real life groups! We all dove into 4e and loved it at first, but after a few sessions it became clear how boring and sanitized the system was. Everyone went to Pathfinder or back to 3.5 and 4e died. At least, that was my experience.
I tried to give away my 4e books at work and they just sat there for weeks with no one taking them. So, they’re back on my shelf as a reminder of the embarrassment of WotC trying to turn D&D into WoW.
I bounced off Pathfinder despite a few attempts, greatly preferring 4e, but I admired that Paizo was making so many of their core books and splatbooks available online for free. In contrast, 4e’s digital offerings were a real mixed bag. Their character creator software was pretty much mandatory to sieve through the oceans of options (and required a subscription!), but their plans were much more ambitious. An online dungeon builder, character model builders… Sadly, most of those plans rested in the head of one guy, and after he murdered his wife and himself, it was back to the drawing board. And back to the drawing board meant “let’s hold off on that stuff until the next edition.”
This has been another post in the “Tabletop RPGs of 2023” thread ;)
Fun fact, in 2006 I was invited to a private gameplay focus group for 4e by WotC. I feel partly responsible for the fiasco. We were all talking about how much we enjoyed World of Warcraft and how it had ruined our tabletop gaming nights. We’d all rather just stay home and group up on WoW.
Hahahaha! You monster!
What I haven’t seen mentioned yet is that the 1.1 OGL tries to cancel the 1.0 OGL. However, there are several other systems that also use the 1.0 OGL for their rules system. Verbatim. Like Moongose Traveller that has made Cepheus possible. Open D6 is another. And isn’t even Fate based in Fudge and Fudge used the OGL? It’s a total mess!
Contract Lawyer, not specifically “IP” contract lawyer talks about the legality of WOTC trying to unauthorize a previous license.
The onus for this is on the creator of the original license to prove that their previous license, which used the word “perpetuity” as the length of the agreement can be ended. It is their responsibility since they created the license, on their own, and then had 3rd parties use it for over 2 decades. They need to prove they were clear that during the terms of the license being used over the last 2 decades could that it could be revoked outside of the standard accepted terms of “perpetuity”.
The current statue on “perpetual” open source licenses, the statue says that absolute right to terminate is available after 35 years. This is used if there is no language in the license of an end date. That is a precedent, WOTC could argue they didn’t leave it open ended, it will be up to the US courts to decide if this would fall under that precedent. This precedent is fairly standard for contracts.
He is fairly skeptical that the new document can de-authorize the previous version, based on the OGL 1.0a license wording. The language specifically makes clear that there can be multiple versions of OGL available to use, and the “authorized” is referring to a WOTC created update, and it must be the “official” version. It doesn’t mean that they can revoke something they had multiple thousands of people using under the impression of it being “in perpetuity” for over 20 years. Legally, in contracts, perpetuity means 35 years, this is very standard.
OGL 1.0a specifically mentions that the license can be “terminated” if the licensee misuses it, and that any other licensee can continue to use the license for their works. Making the language for removing a licensee about “termination” as the way for the perpetual license to end. Meaning 3rd party creators can continue to say they are following the rules of OGL 1.0a, and are not interested in OGL 1.1, and they haven’t broken any rules of the license they are using.
They are trying to close the floodgates after the fact. Generally contracts are not built in a way to revoke previously guaranteed rights, and not seen that way. It is hard to legally undo contracts they created after the fact, especially when they use universally understood statue language like “perpetual”
It sounds like the safest way for them to transition people onto OGL 1.1 is to force anyone creating things for DND Next or 5E to accept OGL 1.1, which would say if they sign up to use OGL 1.1 you can’t use OGL 1.0a. If you never create anything under OGL 1.1, the previous perpetual license will apply.
This would be a more elegant way of getting creators to transition, rather than forcing people into the new system, they know that the money and players are in DND Next, and to get things created for that game, they need to sign up for OGL 1.1
I mean, and we haven’t even gotten into the actual OGL 1.1 content, which is about as night and day different from OGL 1.0a.
No perpetual right to the license
WOTC can terminate your license for ANY reason
They have perpetual rights to use anything you create
You must sign up for OGL 1.1, even if you are not commercializing your work
Figures on royalties are around revenue generated, not profits. So if you are just breaking even with your 3rd party project, you could end up going into the red owing WOTC for using the license.
It is a real nightmare for anyone to want to agree to it. Not only that, the original agreement is under 100 words. The new OGL 1.1 is over 300 pages, and amounts to WOTC owning anything you create in perpetuity, where they can terminate your license for any reason at any time.