Zero Reacts to OGL 1.2 (with an unnecessarily long tangent on WotC's "Product Identity" IPs)

Hiya! It's me, Zero!

I could not bring myself to read through the new OGL yesterday, so I'm adopting this approach as a way to read and think about it without dying—figuratively!

I'll be starting with the "Starting the OGL 'Playtest'" article from Kyle Brink posted here: https://www.dndbeyond.com/posts/1432-starting-the-ogl-playtest 

First thing!

It's going to be under a Creative Commons license. Amazing concession! Honestly couldn't believe they're going that far. The one they linked is the Attribution 4.0 International (here).

CC licenses are irrevocable (like OGL-original was supposed to be). In fact, the license being granted is a "worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable" license. If it was sublicensable and without attribution, then it would have been almost the same one Hasbro-WotC was trying to force on people before they got called out.

A pessimistic view of CC licenses is that they can be a way to get attribution and credit for uses that would otherwise be considered "fair use". I am presuming this concession is almost entirely due to hearing that there were publishers willing and able to go the distance in a court battle (e.g.: Paizo and Kobold Press).

That is, the original tactic Hasbro-WotC adopted seemed to me to be Edisonian bullying (bankrupt via court battles, "too big to fight") to enforce their views and steal IP. Realizing that Paizo and Kobold Press were entities that could at least weather the court battle, they then needed to look and see if they had a case. I am not a lawyer and nothing I'm saying should be construed as legal advice, but I do not see any reason to believe that Hasbro-WotC would have won a court battle either revoking the "OG" OGL (OGL 1.0a) nor even a court battle over their long-standing statements over mindflayers, kuo-toa, displacer beasts, and beholders somehow being their property.

Anyway, so CC, good. Let's look at the next one... LOL, guess it wasn't just my prejudice over them saying they own those things. It's literally their second numbered point. OK, SRD (System Rules Document) with owlbears and magic missile will be under the OGL 1.2.

Note they used owlbears and magic missile. I believe magic missile came from adapting the tabletop wargame Chainmail into fantasy (IIRC, there was a "missile" action and when mages started using it, it became a "magic missile" option; I could be wrong though, it was before my time and I'm only recalling an article I read a long time ago). Regardless, Chainmail was a Gygax game and I believe eventually bought out by TSR and thus, probably owned by Hasbro-WotC, so they can probably make an argument they "own" that. And then owlbears. It's a bear and an owl splice. Literally call it anything else and they probably won't even pursue the Edisonian tactic of trying to claim ownership. It's honestly surprising there aren't owlbears in Greek mythology since every other splice is there.

Oh, I should mention (because I have to mention this every time I think of it), the Questing Beast of Arthurian lore was almost assuredly a giraffe. I'm sorry to break it to you. Yes, I think a snake-leopard is a much cooler thing, too. I am very sorry.

Anyway, mindflayers and kuo-toa (and aboleths I think? though I haven't researched those) are just rip-offs of public domain (though maybe not actually public domain at the time?????) Lovecraftian crap. They are takes on the "Innsmouth look" with the kuo-toa being the more fishy ones (and established as just a deep fish people worshipping some bad dudes) and the mindflayers taking the more invasion-y aspects of the "Deep Folk", though with literal parasites instead of an environmental infection.

Did TSR (may have been WotC by then) go after the Elder Scrolls with their "ascended sleepers" or Final Fantasy with their pisco demons? I think in earlier Final Fantasy games they even just called mindflayers "magicians" to get around WotC's spurious claims. 

And I mean, a lot of their claimed IPs I feel comes from the inherited resentment of Gygax being told he can't use hobbits by the Tolkien estate. "OK, we'll call them halflings and they'll be less preoccupied with food. No, you can't claim to own orcs and elves and dwarves. You got those names from mythology even though these representations of them are precisely yours."

Well, OK, but what about displacer beasts? Surely those cannot be in the public domain. You're right! As far as I know, displacer beasts won't be in the public domain until 2070 in America and 2095 in Europe. Where did displacer beasts come from? The coeurl of A.E. van Vogt's 1939 story, "Black Destroyer". Here's a picture I just came across today:

OK, so van Vogt owns the coeurl. Yet, Final Fantasy uses coeurls out the wazoo in their games. Why doesn't Vogt sue them?

Maybe Vogt doesn't sue when people use his works improperly. Oh wait, he sued 20th Century Fox and got $50,000 (in an out-of-court settlement) because the movie Alien was too close to the plotline of "Black Destroyer". Then maybe... it's absurd to sue people over the name of a monster?

It's not like these things are trademarks. That's different than copyright. And yeah, if you used all of the lore of mindflayers and githyanki and githzerai precisely like it shows up in D&D, they might have a leg to stand on, and if you're using Gygax et al's characters like Mordenkainen and Melf, then yeah, those are their IP. But you cannot copyright an idea like, "evil squid person" or "panther with tentacles and weird dimensional powers" or "owl crossed with a bear".

It's why Final Fantasy changed "beholder" to "flying eye" or "float eye". OK, sure, you own the name "beholder" in this context (which itself is just referencing a classic idiom); like, whatever, but you can't own the idea of a floating eyeball. Not even one which shoots lasers from its eyes.

By the way, it's commonly said that Final Fantasy and Dragon Quest (Dragon Warrior in US for a time) just lifted things from D&D and put them on a video game, but the truth is they were inspired by the hugely popular Wizardry game series... which basically just lifted D&D and put it on a computer.

And you'd think the famously litigious Gary Gygax would have a problem with that and sue the American-made Wizardry game for sure! And TSR did threaten them... because, from what I understand, the original title of their game was "Wizardry: Dungeons of Despair" and Gygax thought that the double D's in the title was infringing him and his trademarks. This is kinda' absurd, but Dungeons & Dragons™ *is* a trademark of (at the time) TSR and eventually became a trademark of WotC and Hasbro. And with trademarks, you can be a little more litigious when it applies. This is why The Beatles couldn't sue Apple for using an apple as their trademark, but they could once Apple got into the music business. This is also why Toei owns the suffix "-zilla" when it has to do with things of great size, but not in other contexts like Mozilla Firefox. At the same time, it's been shown that once a trademark becomes synonymous for the thing (like in the case of Kleenex® for face tissues), you don't get to claim you're being infringed for people calling things the same as your thing. Again, I'm not a lawyer, so I'm just expressing my understanding.

But they haven't trademarked coeurls–err... I mean displacer beasts. And they haven't trademarked beholders, even though the claim is Rob Kuntz's brother came up with it and it's been a part of D&D since 1975 with the first Greyhawk supplement? I wonder if that's because they didn't just like totally take the big bad of LotR and made it mobile and add more eyes? Or I wonder if it was because they got the idea from an old Odilon Redon lithograph with the (translated) title, "To Edgar Poe (The Eye, Like a Strange Balloon, Mounts toward Infinity)" which was produced in... 1882.

By the way, Odilon Redon is a total badass of an artist. Some really killer stuff. Of course, I'm reading now he was a French man whose father made his fortune in slavery, so not someone to look up to or aspire to or anything, but hey, he's dead and, hey, pretty surrealist pictures—dead since 1916, so absolutely considered public domain in America since 1986.

Anyway, lithograph by Redon:

And, nearly 100 years later, the first Greyhawk supplement to Dungeons & Dragons:

But what about their lore? Like how they worship the Great Mother? That's gotta' be protected IP? The Great Mother? I mean, no, the name certainly isn't. And do you remember the Innsmouth look and the Deep Ones of Cthulu? See, there's these things called the "Great Old Ones" and one of the "Greats" worshipped by the Deep Ones is the Mother Hydra. Which, you may be thinking of Greek Hydra, but no, it's a Cthulu hydra (and in many representations looks downright humanoid), but necks and multiple heads are definitely in that zeitgeist, yeah, so the Great Mother, I mean, err, the Great Old One known as the Mother Hydra.

Why am I spending so much time on this? Because it's super flipping annoying? Because the hypocrisy of hobbits and halflings followed by the extreme litigious behavior of Gygax and most people who have inherited it since makes me think it's almost like the curse of the Ring being played out over generations.

You know, the Ring? The one associated with dwarves and dragons and a cursed hoard, with greed and invisibility? With a dark god-like figure seeking its return over the ages? That Ring?

Well of course, who hasn't heard of "The Ring of the Nibelung". You have Wotan seeking the Ring and a dragon with its cursed hoard, not to mention after slaying the dragon shit's still going down but you get this badass sword called "Sting", wait, no, it was "Wrath", that was a silly mistake, and a flipping cloak of invisibility? Like, super cool. The Nibelung were dwarves, not yet as Jewish-coded as they were by Tolkien and they made like this super wicked ring, you know? Wait, was it Beowulf or Sigmund that killed the dragon? No, it was Sigurd that did it, or was it Siegfried?

So Sigmund pulled Wrath from the anvil atop a stone to indicate he was chosen by god to rule... wait no, it was Arthur and Caledflwch with the anvil in the stone, and Wrath wasn't meant to imply he was chosen to rule, it was just meant to say, hey, here's a gift from Merlin–I mean Odin–of a really cool sword. 

Aside: Arthur's lance was known as the Rhongomyniad. While George's lance was Ascalon. Anyway...

So, Wrath was placed in a tree and only pulled out by Sigmund, but then later on it was broken and it was finally reforged after two failed attempts at returning to the lady of the lake when fake swords were broken over an anvil, the sword Narsil which we can all agree means glowing with a golden flame was reforged by an elven, I mean dwarven brother of the dragon, wait, Narsil was Tolkien again, but it did mean glowing and Wrath also glowed and so did Sting, but anyway, it was finally reforged and instead of being broken over the anvil like it had the two times previously when the Lady of the Lake rejected it, it broke the anvil! Like, super cool. Let's go Gondor, I mean  Breaking an anvil is way better than pulling from a tree, I mean stone, I mean anvil.

Anyway, so Beowulf kills Grendel and the Great Mother and we all live happily ever after in the public domain of author's death + 70 years or author's death + 95 years or... Well, hold on, so the ring was eventually given to this bad-ass lady Éowyn, I mean Brunhildr and that ring is cursed to make you greedy but also be able to find gold so that's kinda' nice but the dragon just was a dragon and didn't try to find more gold because he already had gold but he was actually a dwarf, but then Uther pretended to be Arthur's sister's dad and took the ring when he went to do horrible horrible things to Arthur's mom I don't want to think about or repeat here so Gondor, I mean Gunnar, well, let's say Gunther since I'm not sure how to pronounce... well, any of these names really, so Brunhildr was like, hey, I'm not going to marry any man who can't do these things so using the invisibility ring, and did I mention Sigurd was invincible too by now? except he had like an Achilles heel because part of him wasn't bathed in the river of dragon blood so he could be killed if you knew his secret and his wife Gunner, I mean Gudrun or Kriemhild depending on who you're talking to knew how to kill him like a regular Delilah and cut his hair once she found out that the ring could only have been gotten from Brunhildr the one night she had a "successful marriage" to Gunther with Cyrano de Bergerac... Borgiarac? Borg? So Patrick Stewart and Gunther lied a bunch and manipulated Brunhildr so Gunther could marry Brunhildr and Sigurd could marry Kriemhild but turns out, in legends and stuff, when you neg people and act like a pick-up artist, you deserve to die, but then for some reason Brunhildr was like, oh shit, my bad, let me die also, so it's like a tragedy because Beowulf died fighting against a dragon but succeeded in beating the dragon with like, one person's help, but because he couldn't inspire loyalty in the rest of his subjects once they saw him having a hard time, he ended up dying, but like, did Beowulf even deserve loyalty?

Oh crap, I haven't even looked at the OGL yet. So much for this contrivance of a framing device keeping me on task...

Anyway, yeah, it still bugs me that the fully-evolved Pokémon of the dragon's cursed hoard known as Hasbro-WotC is trying to claim ownership over truly, just the most absurdly anyone-can-and-has-come-up with the same thing by a process of straightforward combination. You don't even need to iterate some Python AI over it, just like, a Microsoft Excel spreadsheet from the 80s? What were those called? GOOGLE SAYS IT WAS CALLED A COOTIE CATCHER?! That is not the name I was familiar with. Anyway, the paper fortune teller approach to monster creation would easily generate a beholder and an owlbear...

I don't know how much back-and-forth we had with Japan in the 1960s and early 70s (though apparently Japan was a big influence on that French painter guy in the 1800s), but in the 60s we also get two Japanese yokai from Shigeru Mizuki known as Backbeard (*not* Blackbeard, the Japanese transliteration would be Bakkube'aado) and the Nobiagari. Pictures.

Backbeard, floating eyeball covered in fur with a bunch of tendrils that kinda' resemble spider legs or tree roots:

And nobiagari, a floating eyeball that's kinda' also an amorphous snake thing?

Before 1968, somewhat translucent coiled gigantic snake thing with an impossibly large cyclops eye:

Here's one from 1996:

Actually, now that I look into it, I cannot tell if the nobiagari is a Mizuki original or an adaptation of a Japanese legend. This is the problem with trying to source things that are Japanese with English websites. Oh, this thing is also cool, predating Backbeard (and thus predating beholders) but not the Edgar Poe eye balloon:

This is a 1964 collage done by Masatoshi Naitou titled, "Shinjuku Phantom Chimera".

By the way, "collage" is basically an olden-times way to do what we would call "photobashing" nowadays (which is generally recognized by so-called "real" artists as "not real art" any longer).

I really hope that my exasperation is being transmitted in my words, because if it's not, I am very sorry for this tangled web of an article.

OK OK OK! Where were we, Hasbro-WotC concedes CC rights to OGL 1.0a because (it seems like anyway) there's no reasonable way they could win to not have it be just public domain, and with CC they at least have attribution. And they are still sticking to the claim they own the idea of shooting magic in a missile and a bunch of things they appear to have stole or photobashed together in a cootie-catcher paper fortune-teller.

Alright, BACK TO THE ORIGINAL STATEMENT FROM THAT NEW WOTC executive, remember that? That's how we started...

Next paragraph is blah blah'ing about Creative Commons and emphasizing that it's not only irrevocable, but irrevocable in a way they don't even think they'd be able to pretend they could revoke like they just seemed to have gotten caught doing...

Next is another PR-seeming line saying OGL 1.2 allows them to control hateful content (they could already take the same steps they'd take if people were being hateful with their stuff?). Also, isn't Hasbro-WotC one of the sources of hateful things? 

PR stands for propaganda, right?

A bunch of stuff in this article I have to read the new OGL to verify precisely what they mean because they've already been caught doing shady nonsense with precision in their language, but then it says they are still revoking OGL 1.0a because they "have to"? What?

What?

What?

Alright, I'll wait and see how the new one explains that too, I guess.

They make a big deal about including the term "irrevocable" in the new OGL but the old OGL included this: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."

How could they revoke it in the old OGL? If it was impossible for You to comply with any of the terms of the License or if you failed to comply with the terms and cure the failure within 30 days. 

Are they saying they're not going to include that with the new OGL? But then it's literally meaningless?

It's incredible that they're saying VTTs will still be allowed. One of the big reasons it seemed like they wanted to "update" the OGL was to block out third-party VTTs, but it seems like VTTs will have to be under the new OGL and can't just use the CC? I'm not sure why they think that, but that is the impression that I'm getting. 

Their ownership dispute line seems to imply that you're forfeiting the possibility to file an injunction, but again, have to wait to see.

Their "no hateful content or conduct" is for sure them trying to say they're the good guys even though they have done so, but also, "if you include harmful, discriminatory, or illegal content (or engage in that conduct publicly), we can terminate your OGL 1.2 license to our content".

Harmful, Discriminatory, or Illegal content? You're going to have to define those for me Hasbro-WotC. D&D includes illegal content in literally every edition. Rogues, anyone? I mean, they changed the skill's name from "pickpocket" at least, I guess. And "harmful"? Like, dealing damage? 

You may be thinking I'm being too particular. We have to be particular with them. We don't have a choice. 

I like how they couldn't resist the impulse to say "good-faith creators" like all the people who wondered how they were going to be able to continue their livelihoods were assholes for not immediately giving Hasbro-WotC the benefit of the doubt. They're assuredly not "good-faith" creators.

Alright, let's click over to the actual document. Oh hey! I used the same background for my last math heuristic rubric when I gave a talk on it ahead of publication. Neat!

By the way, I think it's disingenuous to refer to the leaked OGL as a "draft". They were in a form sent out to creators asking for signatures according to what people are saying; drafts don't usually require signatures, do they?

Oh, the links are all just sending you to wizards dot com. That's annoying.

 Looks like VTTs will be separated from the OGL. Great. /sarcasm.

I think it's at least a little amusing that D&D puts such a heavy emphasis on their ampersand when if you want to talk about D&D on social media, you almost have to write it as DnD. Tangent, I used to think the song "DND" by Semisonic was about Dungeons & Dragons. I was like, yeah, super do not disturb me while we're playing DnD. Great song.

OK, first actual content. The deauthorization of 1.0a is at least specifying that OGL 1.0a cannot be used after "effective date" which is presumably a holder for the actual date. Problem being that this still stalls any creator who had works in progress, but at least it secures products that have already been released. 

Is the reason they're calling it "One D&D" because the next rules document is 5.1? Wow. OK. 

They say VTTs are covered, but then say "in accordance with our VTT policy" and again, at least thus far, it's just a dead link and not a policy.

One note that isn't particularly a surprise but could be a hang-up depending on how it's interpreted is that they say "This license is ... irrevocable (meaning that content licensed under this license can never be withdrawn from the license)." In the definitions, "content" includes your content and their content. Which means an argument could be made that you are then required to attribute Hasbro-WotC forever in your content. I think that's a stretch, but I'm going into this as a skeptic and I think it's worth mentioning.

OK, so they did what I thought they were implying they were going to do in Section 3. It's not quite a "forced arbitration" measure like you may see in some predatory contracts, but it's also not a forced arbitration measure in appearance. If you claim they copied or used your works or that one of their licensees did, you only sue for breach of contract and only for money damages. You cannot stop them from using your work. I.e., just because it's identical in every way, they only have to worry about giving you a payout as the worst possible outcome.

I can concede that it's an issue of contention when you have multiple groups working off the same base. One reason why some authors get so upset about fan-fiction is that they may have their own idea that's similar and then a fan-fiction person is claiming that the original author stole it. You'll especially see this in fan-fiction on television programs.

Part b of Section 3 says that in the lawsuit, you also need to show that they "knowingly and intentionally copied your Licensed Work. Access and substantial similarity will not be enough to prove a breach of this Section 3."

So, the only way you can prove it is if they get caught copying your watermark or you have a copy or admission of guilt? And although it's not a forced arbitration mediator scenario, it is a presumed small-time person going up against a billion-dollar company owned by a larger company. So, basically, Edisonian tactics are back on the board to bully with legal fees.

The fact that you cannot file an injunction means that no matter how long a suit is tied up in court, they can continue to make money off your content. If the suit ever came to a conclusion, they would then need to pay you, if you're still alive and not bankrupt from court costs. 

Section 6. OK, age is the first part: Kids aren't allowed to make anything without parents or guardians agreeing. I mean, it's written with the intention to go to court, so I guess this is necessary now. Don't want a Liar, Liar outcome where the prenuptial agreement wasn't valid because the rich dude married a kid.

6 part e: "No Illegal Conduct. You will not violate the law in any way relating to this license or Your Licensed Works." This is actually less bad than it was in the opening letter, presumably because they combined it with part f in the letter.

I take it back. Part f: "You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action." Why include part e if they were just going to say that you can't do anything illegal in part f?

OK, so fuck off. Won't be signing OGL 1.2. My existence is considered obscene by people. Also, sex workers aren't allowed to create content? The content can't have anything bad in it? Mindflayers literally maintain farms of people to eat their brains and mentally dominate them. But the biggest "fuck you" is that they have the sole right to decide and you cannot contest it if you agree to the OGL.

Section 7. They say they can only modify how they are attributed and how they notify you of anything. Those seem like pretty big openings, but OK, 7b, termination.

Part i of 7b seems to say that you will never contest or infringe on any of their IPs or challenge their ownership over anything. They also include that your license will be terminated if you violate part 6e (though they just restate it instead of referencing it) or if you violate part 6(f).

They then say they can terminate it if you breach any other term and do not cure the breach within 30 days of notice. Notice that they can change how they notify you. Also, why do they keep repeating if you violate part of the agreement they can terminate it? 

Section 8. They're not liable to you for anything so since you're a licensee now you can be sued by other licensees? Is that how it works? But wait, you're not an affiliate of them, but you're a licensee which is an affiliate. Ok whatever. I'm not a lawyer, and I've already checked out after section 6, so I've kinda' turned off my processing on these things. Let's wrap up.

Section 9. Notification stuff. Not sure what the Disclaimer of Reliance means. The No Waiver of Rights thing is subversive in an interesting way. Trademarks require companies to fight them when they find out about them from what I understand. The No Waiver of Rights thing establishes that if they don't exercise a right they have under the license, that failure does not prevent them from exercising that right in the future. Seems like trademark stuff to me.

If any part is held to be unenforceable or invalid, the entire thing can be held void by Wizards is Section 9(d). So, if there's any part of it that would not be held up in court, then the whole thing can be taken away and it would presumably go back to being a copyright dispute? Is this their nuclear option?

The previous OGL just said something like, if some part of this is unenforceable, then modify it as little as possible so that it is enforceable after removing that part. I don't know if that is proper legalese in the original one, so maybe this is better in terms of the law, but it again puts all power on the Wizards side and gives them a get-out-of-Dodge free card they can pull at pretty much any time. 

They get you to agree to Washington state HQ courts and "irrevocably" waive the right to class, collective, and other joint action disputes. 

Waive a jury trial. And then they tell you to get a lawyer to read it.

OK, now we see the VTT policy! It exists! Not just as a wrong-link.

Alright, so the point is to make every VTT boring and dull. I get it. No animations basically. Wild waiver to get VTTs to agree to.

And that's the end. Also, can the VTT policy change even though the OGL 1.2 said the only thing that can change is the notifications and attributions part? But then does that mean 1.2 is unenforceable or wrong or broken so the whole thing can be taken away at a whim?

Anyway, I'm tired. I've been writing and reading and looking at these things (and seeing some cool art from some old dead people of presumably varying levels of ethics) for essentially the whole day. I know I took most of the time to do a big tangle of source material to illustrate my distaste. If you made it this far, wow. Thanks for reading!

I'll post without my usual links because I'm tired and it feels weird to ask for support after such a post—though I am pretty proud of that mess of myth and literature in the middle. 

TL;DR: In my opinion, which is not a legal opinion or legal advice, Hasbro-WotC doesn't have much room to claim ownership over D&D mechanics and they have even less standing to claim ownership over their "Product Identity" things like beholders and owlbears. 

That being said, I think me disputing them here means that I'm not allowed to sign the OGL? Neat. CC is better than nothing and I personally would not sign the OGL. I have also cancelled all of my projects (which no one other than me was looking forward to) that had any hint of making content for D&D. That's OK, sometimes creativity thrives with boundaries, but sometimes taking the boundaries away gives you opportunity to make something even better.

Later!
Zero