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OGL Interview with an Intellectual Property Lawyer

Game designer and intellectual property lawyer tibbius (you can find my first interview with them here) answered some of my questions about the leaked OGL document. The big takeaway is that, at this point, any speculation about what it means is premature, since nothing is set in stone yet.

Question. First, can you start off with a brief overview of the current OGL? I've published my fair share of books and I admit that I don't understand all the ins and outs of it.

Answer. The OGL 1.0a, standing alone, is worthless and unenforceable. It purports to provide a perpetual, worldwide, royalty-free, non-exclusive license to use Open Game Content, and using Open Game Content is the *only* way to indicate acceptance of the License - clause 3 is very clear about that. Until there's Open Game Content at the table, the License is meaningless noise.

Under the License, Open Game Content is whatever a Contributor designates as such. For example, WotC designated the entire 5e SRD as Open Game Content. This purports to mean that anyone using material from the 5e SRD has accepted the OGL 1.0a with its few rights and obligations.

A quick question: what if you want to make a TTRPG based on the Nibelungenlied, which happens to mention greedy dwarfs and dragons and dark elves and magic rings and swords? All these things get mentioned in the 5e SRD (except for the "greedy" stereotype). Does that mean that your inchoate Nibelungenlied RPG design falls under the OGL 1.0a?

The quick answer is, that wouldn't make sense - you're deriving a work from an old German folk song, not from D&D. An implication of that quick answer is that the combination of OGL 1.0a with the entire 5e SRD over-reaches. WotC asserted property in some stuff that was really public domain, or that wasn't amenable to any sort of intellectual property right.

Sometimes, a court will void or forcibly amend a license or contract that over-reaches. Perhaps in an effort to avoid that, the License specifically states that "Open Game Content means the game mechanic and ... 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*." This listing of stuff, particularly with the mention of "prior art," sounds like patent lawyer language. But a method for playing a game is not patent eligible subject matter: it may be a "mental process" or a "method for organizing human behavior" but either way it falls afoul of Supreme Court precedent. So a major portion of the Open Game Content - maybe even its heart - is stuff in which WotC could not have any property interest. This, again, suggests that WotC was over-reaching with the OGL. A bridge too far, if you will.

Although I have not closely studied the 5e SRD since right after it come out, I suspect that there is stuff in the 5e SRD that is sufficiently original to merit copyright protection. Maybe some of the Product Identity stuff deserves a copyright or even is used in a trademark way. WotC could have intellectual property in whatever that stuff is. But it's all peripheral to the central value proposition of the OGL 1.0a as it's used by the OSR community, which is the ability to use rules like roll a d20 to hit and ascending/descending armor class and hit points. That central value proposition? It doesn't really need the OGL. It really doesn't. The core method of playing D&D is not protectable intellectual property. So for a lot of people, the OGL 1.0a is kind of a sham transaction.

Q. Looking at the leaked OGL document, what is your first impression of it? What, broadly speaking, does it change?

A. Can't find a copy of it. I'm not going to form any impression of the document based on a few journalists' hearsay about what they read, when they're not professionally qualified to construe contracts. I'm also not going to form any impression based on what journalists say other attorneys said.

Q. A sort of two-pronged question: how will this impact people writing for official D&D products (either using 5e or the upcoming 6e) and releasing products through, say, DM's Guild? How will it affect people writing for one of the many retroclones that are out there, such as Old School Essentials, Labyrinth Lord, OSRIC, etc.?

A. Can't fully answer this one because I can't find a copy of the license to review. That means I have no idea what it would mean for someone writing official licensed products. But I would say that if a retroclone doesn't use Open Game Content (e.g., they have dwarves, but don't have whatever makes the 5e SRD dwarves distinct from those of the Nibelungenlied; they roll d20s to hit, but don't say THAC0 ... wait that's not even in the 5e SRD) - they're free from the License.

That leads to another point: something I have seen many people get wrong today is the idea that someone who wants to write a retroclone would have to sue WotC in order to get "permission." That. Is. Not. How. This. Works. Instead, if WotC wanted you to *stop* doing a retroclone in a way that infringed their intellectual property, they would have to sue you. And as the plaintiff, they would have to prove that you were infringing on some kind of intellectual property that was unique to them, rather than just making use of commonplace ideas in your own special way.

Either way, if WotC chose to invest the time and money to sue you, it would be expensive for you. But it also would be expensive for them. Where is their motivation to engage in that expense when looking at a typical retroclone? Assuming that WotC is a rational entity, I don't think such motivation exists.

The really interesting question is how does this affect things that make big money like Critical Role, who already have (I hope) a good team of lawyers. My guess is that, under the rumored OGL 1.1, WotC might seek to get a royalty from CR for broadcasting or transmitting Open Game Content and Product Identity. My further guess is that good lawyers will advise entities like Critical Role to negotiate favorable terms rather than going to court over all this. Beyond that second guess, I haven't seen the text of OGL 1.1 and I don't have a basis to estimate whether WotC would be reasonable about terms.

Q. Finally, do you have any suggestions for what the average third party publisher can do right now? Should we adopt a wait and see approach? Will it be possible that the new proposed OGL will be backwards compatible with old products and the various retroclones?

A.I honestly don't know what an average third party publisher looks like. Wait-and-see is the only appropriate thing to do when you have zero actual information. Journalists are spreading rumors and vague impressions, but people who matter have not had eyes on the document that might or might not affect us. Anything is possible until the box with the cat gets opened.

It should be noted that the few news stories on this topic are very, very gatekeeperish. Instead of democratizing the information by publishing the leaked document, the journos are pushing hot takes on it from un-named attorneys.

In response to question 1 above, I have given a lukewarm and generally negative take on the OGL 1.0a, which I've actually seen. When I actually see OGL 1.1 I might give a take on that. But apparently it's pretty long - about ten times the length of OGL 1.0a. Somewhat carefully reading and commenting on the current license took nearly two hours. I'm not willing to invest twenty hours in an equally *somewhat* careful review of OGL 1.1 - because it has zero likelihood of affecting the games I publish, which don't use Open Game Content.

tibbius adds: I mentioned an estimate of 20 hours to review and comment on the OGL 1.1, assuming it's as lengthy as Linda Cadego says. At my current hourly rate, that's about $8000 of time. Assessing a particular publisher's content to ascertain whether they might actually be using protectable Open Game Content? That could take a while, depending how big is the publisher's product line.

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