Good riddance to the Open Gaming License
Last week, Gizmodoâs Linda Codega caught a fantastic scoopâââa leaked report of Hasbroâs plan to revoke the decades-old Open Gaming License, which subsidiary Wizards Of the Coast promulgated as an allegedly open sandbox for people seeking to extend, remix or improve Dungeons and Dragons:
https://gizmodo.com/dnd-wizards-of-the-coast-ogl-1-1-open-gaming-license-1849950634
The report set off a shitstorm among D&D fans and the broader TTRPG communityââânot just because it was evidence of yet more enshittification of D&D by a faceless corporate monopolist, but because Hasbro was seemingly poised to take back the commons that RPG players and designers had built over decades, having taken WOTC and the OGL at their word.
Gamers were right to be worried. Giant companies love to rugpull their fans, tempting them into a commons with lofty promises of a system that we will all have a stake in, using the fans for unpaid creative labor, then enclosing the fansâ work and selling it back to them. Itâs a tale as old as CDDB and Disgracenote:
https://en.wikipedia.org/wiki/CDDB#History
(Disclosure: I am a long-serving volunteer board-member for MetaBrainz, which maintains MusicBrainz, a free, open, community-managed and transparent alternative to Gracenote, explicitly designed to resist the kind of commons-stealing enclosure that led to the CDDB debacle.)
https://musicbrainz.org/
Free/open licenses were invented specifically to prevent this kind of fuckery. First there was the GPL and its successor software licenses, then Creative Commons and its own successors. One important factor in these licenses: they contain the word âirrevocable.â That means that if you build on licensed content, you donât have to worry about having the license yanked out from under you later. Itâs rugproof.
Now, the OGL does not contain the word âirrevocable.â Rather, the OGL is âperpetual.â To a layperson, these two terms may seem interchangeable, but this is one of those fine lawerly distinctions that trip up normies all the time. In lawyerspeak, a âperpetualâ license is one whose revocation doesnât come automatically after a certain time (unlike, say, a one-year car-lease, which automatically terminates at the end of the year). Unless a license is âirrevocable,â the licensor can terminate it whenever they want to.
This is exactly the kind of thing that trips up people who roll their own licenses, and people who trust those licenses. The OGL predates the Creative Commons licenses, but it neatly illustrates the problem with letting corporate lawyersââârather than public-interest nonprofitsâââunleash âopenâ licenses on an unsuspecting, legally unsophisticated audience.
The perpetual/irrevocable switcheroo is the least of the problems with the OGL. As Rob Bodineââan actual lawyer, as well as a dice lawyerâââwrote back in 2019, the OGL is a grossly defective instrument that is significantly worse than useless.
https://gsllcblog.com/2019/08/26/part3ogl/
The issue lies with what the OGL actually licenses. Decades of copyright maximalism has convinced millions of people that anything you can imagine is âintellectual property,â and that this is indistinguishable from real property, which means that no one can use it without your permission.
The copyrightpilling of the world sets people up for all kinds of scams, because copyright just doesnât work like that. This wholly erroneous view of copyright grooms normies to be suckers for every sharp grifter who comes along promising that everything imaginable is property-in-waiting (remember SpiceDAO?):
https://onezero.medium.com/crypto-copyright-bdf24f48bf99
Copyright is a lot more complex than âanything you can imagine is your property and that means no one else can use it.â For starters, copyright draws a fundamental distinction between ideas and expression. Copyright does not apply to ideasâââthe idea, say, of elves and dwarves and such running around a dungeon, killing monsters. That is emphatically not copyrightable.
Copyright also doesnât cover abstract systems or methodsâââlike, say, a game whose dice-tables follow well-established mathematical formulae to create a âbalancedâ system for combat and adventuring. Anyone can make one of these, including by copying, improving or modifying an existing one that someone else made. Thatâs what âuncopyrightableâ means.
Finally, there are the exceptions and limitations to copyrightâââthings that you are allowed to do with copyrighted work, without first seeking permission from the creator or copyrightâs proprietor. The best-known exception is US law is fair use, a complex doctrine that is often incorrectly characterized as turning on âfour factorsâ that determine whether a use is fair or not.
In reality, the four factors are a starting point that courts are allowed and encouraged to consider when determining the fairness of a use, but some of the most consequential fair use cases in Supreme Court history flunk one, several, or even all of the four factors (for example, the Betamax decision that legalized VCRs in 1984, which fails all four).
Beyond fair use, there are other exceptions and limitations, like the di minimis exemption that allows for incidental uses of tiny fragments of copyrighted work without permission, even if those uses are not fair use. Copyright, in other words, is âfact-intensive,â and there are many ways you can legally use a copyrighted work without a license.
Which brings me back to the OGL, and what, specifically, it licenses. The OGL is a license that only grants you permission to use the things that WOTC canât copyrightââââthe game mechanic [including] the methods, procedures, processes and routines.â In other words, the OGL gives you permission to use things you donât need permission to use.
But maybe the OGL grants you permission to use more things, beyond those things youâre allowed to use anyway? Nope. The OGL specifically exempts:
Product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademarkâŚ
Now, there are places where the uncopyrightable parts of D&D mingle with the copyrightable parts, and thereâs a legal term for this: merger. Merger came up for gamers in 2018, when the provocateur Robert Hovden got the US Copyright Office to certify copyright in a Magic: The Gathering deck:
https://pluralistic.net/2021/08/14/angels-and-demons/#owning-culture
If you want to learn more about merger, you need to study up on Kregos and Eckes, which are beautifully explained in the âOpen Intellectual Property Casebook,â a free resource created by Jennifer Jenkins and James Boyle:
https://web.law.duke.edu/cspd/openip/#q01
Jenkins and Boyle explicitly created their open casebook as an answer to another act of enclosure: a greedy textbook publisher cornered the market on IP textbook and charged every law studentâââand everyone curious about the lawâââ$200 to learn about merger and other doctrines.
As EFF Senior Staff Attorney Kit Walsh writes in her must-read analysis of the OGL, this means âthe 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.â
https://www.eff.org/deeplinks/2023/01/beware-gifts-dragons-how-dds-open-gaming-license-may-have-become-trap-creators
But like I said, itâs not just that the OGL fails to give you rightsâââit actually takes away rights you already have to D&D. Thatâs becauseâââas Walsh points outâââfair use and the other copyright limitations and exceptions give you rights to use D&D content, but the OGL is a contract whereby you surrender those rights, promising only to use D&D stuff according to WOTCâs explicit wishes.
âFor example, absent this agreement, you have a legal right to create a work using noncopyrightable elements of D&D or making fair use of copyrightable elements and to say that that work is compatible with Dungeons and Dragons. In many contexts you also have the right to use the logo to name the game (something called ânominative fair useâ in trademark law). You can certainly use some of the language, concepts, themes, descriptions, and so forth. Accepting this license almost certainly means signing away rights to use these elements. Like Sauronâs rings of power, the gift of the OGL came with strings attached.â
And hereâs where it starts to get interesting. Since the OGL launched in 2000, a huge proportion of game designers have agreed to its terms, tricked into signing away their rights. If Hasbro does go through with canceling the OGL, it will release those game designers from the shitty, deceptive OGL.
According to the leaks, the new OGL is even worse than the original versionsâââbut you donât have to take those terms! Notwithstanding the fact that the OGL says that âusingâŚOpen Game Contentâ means that you accede to the license terms, that is just not how contracts work.
Walsh: âContracts require an offer, acceptance, and some kind of value in exchange, called âconsideration.â If you sell a game, you are inviting the reader to play it, full stop. Any additional obligations require more than a rote assertion.â
âFor 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.â
Walsh finishes her analysis by pointing to some good licenses, like the GPL and Creative Commons, âwritten to serve the interests of creative communities, rather than a corporation.â Many open communitiesâââlike the programmers who created GNU/Linux, or the music fans who created Musicbrainz, were formed after outrageous acts of enclosure by greedy corporations.
If youâre a game designer who was pissed off because the OGL was getting gankedâââand if youâre even more pissed off now that youâve discovered that the OGL was a piece of shit all alongâââthereâs a lesson there. The OGL tricked a generation of designers into thinking they were building on a commons. They werenâtâââbut they could.
This is a great moment to startâââor contribute toâââreal open gaming content, licensed under standard, universal licenses like Creative Commons. Rolling your own license has always been a bad idea, comparable to rolling your own encryption in the annals of ways-to-fuck-up-your-own-life-and-the-lives-of-many-others. There is an opportunity hereâââHasbro unintentionally proved that gamers want to collaborate on shared gaming systems.
Thatâs the true lesson here: if you want a commons, youâre not alone. Youâve got company, like Kit Walsh herself, who happens to be a brilliant game-designer who won a Nebula Award for her game âThirsty Sword Lesbiansâ:
https://evilhat.com/product/thirsty-sword-lesbians/
[Image ID: A remixed version of David Trampierâs âEye of Moloch,â the cover of the first edition of the AD&D Playerâs Handbook. It has been altered so the title reads âAdvanced Copyright Fuckery. Unclear on the Concept. Thatâs Just Not How Licenses Work. No, Seriously.â The eyes of the idol have been replaced by D20s displaying a critical fail â1.â Its chest bears another D20 whose showing face is a copyright symbol.]
