OA675: Gizmodo's Critical Hit (Piece) on Wizards of the Coast

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: And welcome to Opening Arguments. This is episode 675. I'm Thomas. That's Andrew. How you doing?

0:01:23 Andrew: I am fantastic, Thomas. Hopefully, nice, mellifluous audio coming out to you. How you doing?

0:01:30 Thomas: Good. This, wow, so much. You know what? I'm certainly glad that our new format allows us a little extra time, you because T3B and Patron Thanks are on the next episode, so that means we have the full hour to devote to what is a ton of stuff.

0:01:50 Thomas: You emailed us simultaneously to cover a thing. It's amazing. I actually went, I'm also a listener to OA. So I went into a trance state and sent myself an email. It said, it's like we all activate, you know, like must send the email. No, and it's great. I, um, I actually love that. Cause like nothing's better than when we're like, Oh, guess we have to cover that. Guess we know with a hundred percent certainty that our audience would love to hear this topic. Uh and that would be something about dnd I

0:02:12 Andrew: It is. Yeah, that's right. And I want, if you are not a Dungeons and Dragons player, player, I haven't played since high school, Thomas, you've never played, I promise. You This is going to be a super interesting classic OA deep dive looking at contracts, so you know, whether you're a gamer and you're up in arms or you're not, you're gonna love this. Also, great thing about the new format, um, we're recording you hour ego, uh, Merrick Garland named a special counsel to look into the kerfuffle over Vice President Joe Biden maintaining certain confidential documents after leaving office.

0:02:28 Thomas: Played yeah

0:02:58 Andrew: Give you a breakdown on that, but we're going to have a of national security counselors, Kel McClanahan, expert, somebody who does this for a living, come on. It's probably going to be Monday's show, taping right? This on Thursday. We're doing the interview. But early next week, either Monday or Tuesday, we're going to have actual breaking information from an expert, and that should be great. So we got you covered on the rapid response, and we've also got you cover on something that is absolutely exploding the Internet. So let me – are you ready? Your your plate mail of protection and open your bag of holding. Here's Here's what happened.

So for the last 23 years, Wizards of the Coast, the corporate owner of Dungeons and Dragons, have had a legal document called the Open Gaming License, or OGL, version 1.0. In December, just about a month ago now, they announced publicly that they would be making changes to that OGL to update it from 1.0 to 1.1. As we're going to talk about, the original open gaming license says it can be, right? This should not be a surprise. Week, a leaked draft of that proposed version 1.1 began to circulate on the Internet. And as a result, a respected game writer named Linda Codega wrote an article for Gizmodo absolutely blasting the crap out of Wizards of the Coast. That has the

0:02:58 Thomas: Yeah uh Wow.

0:04:22 Andrew: Entire role -playing game contingent of the internet, which is to say almost all of the internet up in arms.

0:04:22 Thomas: Like with a fireball? Oh, no, sorry.

0:04:31 Andrew: So, yep.

0:04:31 Thomas: Certainly all of our audience, apparently.

0:04:34 Andrew: My position, I want to be very clear from the outset, is that that article is irresponsible fear -mongering. It is tremendously unfair. And most of the claims that are made in it that are gaining traction are either out and out false or materially misleading, right? I also think, and I'm going to evidence for you this on the show, and again, Linda Codega, respected game journalist, I'm gonna cite one of their earlier articles, but don't think those claims were made just due to carelessness or the fact that they're not a lawyer. Possible that it's just incompetence, but there are things that, in my view, you amount to what looks to me like bad faith, right? Like, oh, I want my take to be everyone should hate wizards. Yeah, exactly.

0:04:34 Thomas: Wow.

0:04:51 Thomas: Like a hit piece. Geez.

0:05:22 Andrew: One provision in the proposed new leaked OGL that really is overreaching. It really is a bad thing. It is a thing that you should be Codega article, it's not really highlighted. And none of the people who are up in arms are angry about the right thing. So that's why you listen to the show. So I'm going to take I want you to take all by the end of the show, I want to take all of your anger that you think you have and devote it into the one line. It is literally one sentence that should come out. OK. Want to read a little bit of a disclaimer first.

0:06:01 Andrew: Have personally communicated with legal counsel at Wizards of the Coast, uh, connection with Magic the Gathering, um, I asked them to comment on this story and they said no thank you. Uh, have also, uh, in connection mit that, I, I am trying to help my son who is helping to run one of the gaming conventions at Rochester in a couple of months, and so I've asked for help trying to connect somebody at Wizards to somebody over at the University of Rochester, that happened so far, but like I've passed them for a favor, so I want to disclose that here. Other than that, and buying a crap ton of Magic cards for Alex and getting the most amazing Christmas present from you, uh, I, I have no professional or commercial relationship with Wizards of the Coast, I

0:05:43 Thomas: Huh? Wow. Yeah, Well, Should probably disclose that I'm actually a dark elf, So I Don't know if that impacts my coverage, but I Will Try to be Objective

0:06:47 Andrew: Oh, well, there you go. You can sit back and work your drow -y magic. All right. I am also general counsel, and I have a financial interest in Puzzle and a Thunderstorm LLC, which, as many of you know, produces the D &D Minus podcast. So nothing I say here should be attributed to Puzzled, thought of as coming from my capacity as general counsel for Puzzdle. It does not constitute attorney -client advice, either to Puzzle or to you. Finally, previously covered wizards on episode 634.

0:06:55 Thomas: Yeah

0:07:20 Andrew: That episode, very pro -wizards. I stand by it. I like and respect them as a company. They share my progressive values.

0:07:27 Thomas: This Is race Oh Yeah, it's Yeah, sorry We just did like one wizard puff piece episode We're just like, wizards, right? The beards, the staves, they're just great.

0:07:28 Andrew: Yeah, right. Yeah. Exactly. Exactly. If you want to dismiss me as a pro wizard shill, there's your evidence. It's a pretty thin read, but there you go. I am owned by Big Wizard. Okay. Now, what is the Open Gaming License 1 .0? Why does it need to change? Okay. First thing, lots of people are, look at open gaming license and they are, and I've seen this all of, this is not in the Codega hit piece, but it is all over the internet of, well, you know, it was supposed to be open source, right? And no, I know it's got the word open in it, but if you go to opensource .org and look at how they define the open source initiative, it was never intended and is not open source. It certainly is not public domain, meaning that anybody could use it, any wizard's

0:07:45 Thomas: Is bought by Big Wizard, he's Yeah. Yeah,

0:08:31 Andrew: IP for any reason.

0:08:32 Thomas: Well, then you wouldn't even need a thing called the open source agreement, right? If it was public domain, it'd just be like,

0:08:35 Andrew: Right, yeah, it would just, you might Have an agreement that sort of specifies, you're absolutely right, if it were public domain you would have no agreement. The reason you have a license is because a license is a way for intellectual property owners to enforce their legal rights while allowing people, other third parties, to do things that might otherwise infringe them, right?

0:08:55 Thomas: Right.

0:08:55 Andrew: And the key aspect is that the license imposes certain conditions on that use. So essentially the IP owner says, hey, if you want to use this aspect of my intellectual property in these particular ways, I promise not to sue you. And the unstated corollary is, Uh, if you'll use unauthorized intellectual property or you fail to abide by the conditions, then I can still sue you. Right.

0:09:17 Thomas: Goes to the point and this back to a previous point that I found that I know you've told me several times, but I always forget, that's really enlightening, which is like, if you don't defend your intellectual then that could be used as evidence that you interested in it. And then you could give up some of those rights to put it in non -lawyer talk. I'm sure I made several.

0:09:33 Andrew: Absolutely. With respect, with respect to your trademarks, if you abandon, ifyou don't vigorously defend them, you can lose them. So

0:09:38 Thomas: Right. Even if you wanted to let people use whatever willy nilly, it would still make sense to have some sort of licensing kind agreement for that reason, right?

0:09:48 Andrew: That's exactly right. So crucial aspect Here, a agreement is not a thing you have to do at all. Right. You could say I want to maximally protect my intellectual property against any and all potential infringers. That is a position I'm not saying, but it is a condition that is commonly attributed, for example, to the Disney Corporation. Right? Can't go on Etsy and sell a hand -stitched Mickey Mouse pillow or get a cease and desist letter. Of companies follow that model. Wizards doesn't. The &D OGL 1 .0 is, in my view, and we're going to dive into its specific provisions, incredibly liberal with allowing other people to use Wizards intellectual property. Like I said, that was 2000. thousand. So what's happened over the last 23 years that has, in my view, necessitated a change? Three things. And of them, I think, are really indisputable and are going to have everybody nodding along. And one is a corporate competition thing. So first, Nazis, right?

0:10:01 Thomas: Nazis happened.

0:10:46 Andrew: Gaming, seriously, the gaming world is overrun with racist neo-Nazis, actual Nazis, sexist, homophobic assholes, right? Picked a side, they picked our side, the in episode 634 we covered an actual lawsuit brought by actual neo-Nazis trying to hijack a different Wizard's property with a game called Star Frontiers and turn it into, I don't know, white nationalism in space, right? The OGL 1.0 has no termination provisions for being a Nazi, so I am positive right now that there is a ton of third-party content out there under the OGL 1.0 that is gross, and Wizards literally can't do anything about it, and they can't do anything to stop you from making more without changing the OGO. So that's the first issue. Second issue, Crypto Bros, right?

0:11:36 Thomas: Yes. Yes.

0:11:36 Andrew: We've talked about that. There have been a bunch of these schemes, but the one that's most direct I know about, thanks to respected game writer Linda Codega writing in Gizmodo. So, yeah, same one nine months ago in an article titled NFTs are here to ruin D &D. Right. So essentially that story, as I understand it and look like we do not have time in this already jam packed episode to talk about blockchain crap. Right. Crypto Bro hired a professional illustrator who had done drawings for Wizards of the Coast, done D &B drawings and said, OK, hey, I want to hire you to draw some dragons and stuff. We're going to like take those. We're going to mint those as NFTs and then I'm just going to read from Linda's article because my head hurts.

0:12:23 Andrew: To sum up, players will buy a pre -generated D &D character, play with it in a pre generated adventures, level it up on the blockchain and then sell it. Sounds like easy money, right? Then Codega quotes a spokesperson for Wizards who says they will not let some random crypto bro quote, misappropriate our valuable intellectual property. Right. Yeah. No, no kidding.

0:12:46 Thomas: Well, wait, we covered when they tried to do the magic thing of that, right. That was the whole scheme of like, no, it's the blockchain magic. And then I don't know. That just sounds like stealing intellectual property with more steps.

0:12:46 Andrew: Right? Yeah, exactly right. Yeah, yeah, that's right. That's exactly right And so Codega then also quotes the crypto bro who says, oh yeah, but look like they have this OGL 1.0 that lets us do it. Right? I know who's right in that. I strongly suspect Wizards is correct, but what I do know is that because the OGL 1.0 was written in 2000, it doesn't contemplate or mention NFTs, right? So that's a second thing that Wizards would like to make crystal clear. And again, I think people are probably with us on you Nazis and crypto bros. The third thing I'm going to get into in some depth later. This is a purely business matter. So in 2000, I am positive that the intent that Wizards had in creating OGL 1.0 was to try and create a derivative community that's synergized with the game, and right?

The way in which that happens is when you, when you sit down to play a game of Dungeons and Dragons, you play a module, you can write your own module and just play, you, you know, with your friends, right? That's what Eli does for D&D Minus. You can play a Wizards module, or under the OGL, anybody can release a D&B module that incorporates, you know, some of the basic rules of the game, but you actually buy it from third party company, right.

0:13:00 Thomas: Yeah. Yeah. Yeah. Oh,

0:14:11 Andrew: And Wizards was like, yeah, we're going to let you do that. We could come after you. We could say, nope, modules are all, but you know what? But if somebody buys, you know, Thomas Smith's D &D module, that means they're going to have to buy D &B from us. So great. Everybody wins.

0:14:26 Thomas: Do they? Isn't it a game you just play?

0:14:29 Andrew: Because you need to know the rules. Right.

0:14:29 Thomas: Oh, so they might buy the rule books and whatnot.

0:14:31 Andrew: Yeah, they would buy the rule book. Yeah. Exactly.

0:14:33 Thomas: Okay. Now, is totally for free? Are they charging licensing or a percentage?

0:14:33 Andrew: Right? That absolutely 100 percent for free. Right. Exactly under the old OGL 1 .0 and spoiler alert under the new OGL one point one. Right, but but but A weird thing happened. 2011, that same OGL that allowed you to create, uh, module, right, a synergistic win-win, uh, allowed a competitor to create a product where you didn't have to buy anything from Wizards at all because they took one of the core sets of rules, they added a couple new things and concepts, they called the whole thing a different name, and then they made tens or perhaps hundreds of millions of dollars selling a competitive product to Dungeons & Dragons. That's not synergistic, yeah.

0:14:39 Thomas: Wow. Right? Oh.

0:15:17 Thomas: I'm curious about that whole situation.

0:15:18 Andrew: Yeah -yeah, put a pin in that one. So I mention this third thing because lots of people are fans of that competitor product, and I want to be completely honest. I think at least part of the reason for wanting to change the OGL 1 .0 is the ridiculous success that that competitor product had. And I think Wizards was like, all right, that was dumb. We're never going to subsidize our direct competitors again. And that's true, okay? So it would be dishonest to pretend that's not a motivator. So those are your three things, Nazis, crypto bros, and direct competitors.

0:15:18 Thomas: Okay. Yeah. Yeah. Yeah. Yeah. And Profit, and I will

0:15:52 Andrew: And they profit, yeah.

0:15:52 Thomas: Say as A Somewhat Of a magic player, there's definitely, I think, a sour taste in a lot of people's mouths over like how monetized magic feels. I mean, it always was, but it's it feels right now like, you know, my great gift for you aside, it Does feel like there's so many releases of things that it's like, oh, you could pay for this, you could pay for that, you could play for the. It feels like, I think, people are a bit wary of Wizards. Obviously they're a company, obviously they are going to make money, I have no problem with them making money. It feels like maybe they're overstretching in certain ways, and I think that's kind of a general attitude that people have That Might be leaning into This, yeah.

0:16:05 Andrew: Yeah. Yep. Have 100% seen that. I think that's right.

0:16:28 Thomas: We

0:16:28 Andrew: So, OGL 1.0 explicitly reserves the right for Wizards to make future changes. They went 23 years without making any changes. Now, we have a leaked draft of the 1.1 change, and we have the Codega article. So, if you're following along, you're at the computer, I'll make the show notes available to everybody, again, up three things, so this is on page three of my notes, the OGL 1.0 that's available on the Wizard site, the leaked OGL 1.1 that's up on our site, right, I uploaded it for you. No.

0:17:01 Thomas: Didn't leak it, but Yeah.

0:17:02 Andrew: No, no, but we have a copy so it's up there. And then third, Codega's article, which you can find at Gizmodo, uh, and it is "DnD Wizards of the Coast OGL 1.1 Open Gaming License." So if you've got those up, let's go through and debunk this article. I'm going to start with the first half sentence, that's not a good sign. The new Dungeons and Dragons Open Gaming Licence, a document which allows a vast group of independent publishers to use basic game rules created by DnD owner, owner, Wizards of the Coast, that's all true, comma, significantly restricts the kind of content allowed.

I, and have to stop here, because that is 100% false. No, it does not. OGL 1.0 and 1.1 use exactly the same approach to allowing independent publishers to use D &D content. It's just renamed and made more clear. The content you can use is exactly the the same. And I'm about to prove that to you. Now, OGL 1 .1 changes, limits the ways in which you can use that content, right? So specifically says you can't use that to make NFTs, right. So I don't mean to suggest that it doesn't change the universe, but when you say restricts the kind of content, no, it does not. Here's the proof.

0:17:04 Thomas: Yeah. Huh.

0:17:48 Thomas: It Just says you can't use it at clan meetings Around, you know, that kind of Thing, yeah.

0:18:17 Andrew: Yeah, kind of. So let's look at OGL 1.0, that starts at paragraph 1d, and that begins by defining the stuff you, as a third party, get to use. That's called open game content in the 1.0, okay, and it says open game content means the game mechanic, it includes the methods, procedures, processes, and routines, to the extent that such content first does not embody the product identity, all right, we'll get to that, and second is an enhancement over the prior art, and any additional content clearly identified as open game content by the contributor, that's you, and means any work covered by this license, including translations and derivative works under copyright law, but specifically excludes product identity. And you're like, all right, uh, that's a lot of legalese, how do I know?

Well, fortunately, after that definition comes 402 pages of game mechanic -y things, okay, what do I, I mean by that, I mean things like, dwarf characters increase their constitution by plus two, arcane sword is a seventh level evocation with a range of 60 feet that does three dice 10 force damage to the targets, and blue dragons can spit lightning breath that does a crap ton of damage based on their age, right, this, those 402 pages, and I need you to remember this, one is called the System Reference Document, or SRD version 5.1, put a pin in that, okay? So, uh, by the way, side note, Cory Doctorow, somebody I respect a lot, I love his non -fiction I love this fiction, right,

0:18:20 Thomas: Right.

0:19:52 Andrew: Argued that the OGL 1.0 was kind of a sham. Now, this is obviously contradictory to everybody who's like, hey, you're taking away this great thing, like, his sort of hot take was, well, the first thing wasn't so great, I think he's wrong on that too, right? This is the same, uh, you, you know, American Idol versus The Voice. Right. Like, he's saying, I don't see how you could copyright processes, can't, right? You can't say, I'm going to claim a copyright in song competition where winner gets a record deal. But as long as the unique implementation has minimally creative elements, you can copyright those elements. Right, so I think the idea that the character has a fixed number of hit points before they die, that the statistic that modifies it is called constitution, that that score is on a scale of 3 to 18, and the dwarves get a plus 2 bonus, all taken in, that's protectable, right?

0:20:43 Thomas: Like, any one of that might not be, like, obviously hit points are in everything, you know, maybe constitution is a little too big, but like, you're saying, the system together, it's creating a thing that is a copyrightable work. Is that kind of correct?

0:20:56 Andrew: Yeah. That's right. Like, Wizards doesn't own the idea of a dragon, right, but The The Fact that blue dragons spit lightning, right, like, that's, I don't know, that's probably, probably minimally distinct and creative.

0:20:57 Thomas: Yeah. Right. Yeah, exactly. Gotcha.

0:21:08 Andrew: Anyway,

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0:23:31 Andrew: Anyway, off the side note, what this means is that under the OGL 1.0, you can use all of the stuff that's in that SRD 5.1 without Wizards coming after you for copyright infringement. But you can't use product identity. So what's product identity? That's in the next paragraph, 1E. Product identity means the product and product line names, logos, identifying marks, including trade dress. That is the artwork on the packaging. Artifacts, creatures, characters, stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concept themes, and graphic, photographic, and other visual or audio representations, names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses, special abilities, places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs, and any other trademark or registered trademark clearly identified as product identity by the owner of the product identity and which specifically excludes the open game content.

Okay, a lot of legalese there. Um, there's also an introduction that lists, as an example, but not an exhaustive list, of things that are product identity, and I'm going to read some of this because it's hilarious. Okay, so the following items are designated product identity and are not open content: Dungeons and Dragons, Dnd, Player's Handbook, Dungeon Master, Monster Manual, Forgotten Realms, Fey Run, proper names, including those names in the use of spells or items, places, Underdark, Red Wizard of Fey, the City of Union, Heroic Domains of

0:25:03 Andrew: Ysgard, ever -changing Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tartarian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Elves of Batur, Infernal Battlefield of of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book Deeds, Book of Vile Darkness, Beholder, Galf, Carrion Crawler, Tanari, Batesu, Displacer Beast, Mind Flayer, Umber Hulk, Wanti. Okay, so right, put all that together. Under the OGL 1 .0, I can make and sell a module for D &D players that has my original character. Let's call him Bruce the Half -Orc Barbarian, right? Can be fighting alongside dwarf NPC companions that get a plus two bonus to their constitution. They can cast Arcane Sword in a battle against blue dragons that spit lightning bolts, right.

Without the O GL, Wizards of the Coast could sue the crap out of me. With the OGL, they agree not to sue me because I'm using, they're licensing the intellectual property to me that's in that 402 page document. That's paragraph four. So here's what the license says. Grant in consideration, in consideration for agreeing to use this license, right?

0:25:39 Thomas: Right. We get it.

0:26:27 Andrew: So that's the benefit you're giving to Wizards. You're only behaving the way you want that they want you to behave. The contributors grant you a perpetual, worldwide, royalty-free, non-exclusive license with the exact same terms of this license to use the open game content. Now notice that that license does not give away the story, you only get the stuff that's open game contact, right, you don't get the artwork. You can't, you know, trace or even freehand copy the blue dragon from the monster manual and put that on the cover of your module, right? And in terms of content, you can set your module in the Ever-Changing Chaos of Limbo, and for whatever reasons you couldn't have displacer beast, mind flayers, or umber hulks in it, I don't know why, right, the content that was protected under OGL 1.0. So what changes to the content does OGL 1.1 make? Yeah.

0:26:47 Thomas: Right.

0:27:15 Thomas: Before we go for it, can I just make extra sure this is just for people trying to make and sell something, right? Right. It's not like you or I are sitting around the kitchen table and I'm like, I'm then there's a mind flare. And you're like, actually, so I know you can't do it for legal reasons.

0:27:17 Andrew: And sell stuff yep yeah no It one of the things, this is this is great, uh, one of things that the 1.1 does is split out this agreement into two separate agreements, a non-commercial agreement and a commercial one. Right, yeah, the, that bottom line, if you don't want to listen to the rest of this stuff, if you're using it in a non-commercial way, Wizards does not care. Right, you're not making money, they don't care. But

0:27:52 Thomas: My question. And you can feel free to pin put all the pins in this you want. What about a podcast named D &D minus?

0:27:54 Andrew: Uh -huh. I put a pin in that. Okay. New OGL 1 .1 commercial non -commerce uses both overlap substantially.

0:28:00 Thomas: OK, so not the O .G. O .J .L. This is a new.

0:28:07 Andrew: Yeah. And then NG OGL, right? Right. Uh, it's now paragraph one and there are three sub paragraphs, and it's the same with respect to defining what is now called license content. So sub paragraph one, this is Dungeons and Dragons content that is included in the SRD version 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allows you to make content compatible with Dungeons & Dragons 5th Edition. That is the exact same reference to the exact same 402 pages that were previously called open game content in the OGL 1.0. It's the same edition, SRD 5.1. They have made literally zero changes to the content that you are allowed to use, like half orcs, barbarians, dwarves, blue dragons, and spells, right?

0:28:10 Thomas: Yeah.

0:28:58 Andrew: Right. OK, but but what about the stuff that you're not allowed to use? Right. What the stuff that was previously excluded as product identity? Maybe they they beef that. No, they actually made that slightly more favorable to you. OGL 1.1 subparagraph two says not usable content, unlicensed content. This is Dungeons and Dragons content that has been or later will be produced as official, that is released by Wizards of the Coast or any of its predecessors or successors and not present in the SRD 5.1. Unlicensed content includes things like the most famous Dungeons and Dragons monsters, characters, magic spells, and things related to the various settings used in Dungeons and Dragons official contents over the years, what the old game license referred to as product identity.

Unlicenced content is not covered by this agreement, and you agree not to use unlicensed content unless your use is specifically authorized by a separate agreement with us. If you want to include that content in your work, you must go through the Dungeon Masters Guild or other official channels. So seems to be the exact same things with the OGL 1 .0 called product identity, that is not the more specific stuff, not the you know nine ever-changing realms, not the storytelling, not special monsters like Tiamat, you can't use those.

If it's not in the 402 pages of the SRD 5.1, you can't use it. And then finally, the OGL 1.1 makes the licensing arrangement crystal clear. This is paragraph 1.c, and again, all this is doing is updating formerly more confusing legal language, right? It says, licensed work for work to be licensed under this OGL, commercial, it says the same for the non-commercial, it must meet all four of the following criteria. One, qualifies as a covered work as defined in Section 1B. Put a pin in that. Two, contains both licensed content and your content, but not unlicensed content.

0:30:03 Thomas: Yeah.

0:30:49 Andrew: It does not contain unlicienced content, you know, for avoidance of death. And four, it displays the following creator content badge in a manner specified in the creator content badge style guide, right? So you have to put a little logo at the bottom that says, hey, this is creator content. Those other three points are the exact exact same process as the OGL 1 .0 You add your new stuff to the stuff that's in the SRD 5 .1 and you promise not to use any of the product identity stuff that is very very specific to Wizards of the Coast. That's it. So we're one half of a sentence in, and it's an out and out falsehood, um, not great.

0:31:27 Thomas: Wow.

0:31:27 Andrew: Yeah, uh, finish up that sentence. So the other half of the sentence, sentence, yeah, the

0:31:31 Thomas: So we're still one sentence in the article you're saying?

0:31:33 Andrew: Other half of that sentence is also not great, and we're gonna skip over some parts of it, but yeah, we will not, we will NOT devote quite this much effort to every single sentence. But second half of the first sentence and requires anyone making money under the license to report their products to Wizards of the Coast directly, according to an analysis of leaked draft of the document dated mid -december That half too, I need to tell you, is incorrect. Okay OK, so commercial users do have to register their licensed works, but there's a huge loophole for anyone making money under the license. And it covers a lot of the people who are likely to be up in arms about having read the Gizmodo article. And it cover our friends over at the D &D Minus podcast. Yeah. So here's that loophole. Paragraph six of the OGL 1 .1 non -commercial. OK, so here's what it says. Six donations. Your distribution of your work must be non -commercial.

That means you cannot require that anyone give you anything of value in exchange for your work or copies of your work. However, you are permitted to accept donations through Patreon, Ko -Fi or other similar platforms, provided that the donations are not a condition of the receipt of yourwork. And you make that clear

0:31:34 Thomas: Wow, wow. The article three sentences long? Huh.

0:32:00 Thomas: There

0:32:50 Andrew: And obvious to your donors. In other words, if you make your work available for free and ask others to contribute what they like to you so that you can continue to do so, you're fine. The document says you're fine.

0:32:50 Thomas: You go. Oh, wow! Yeah! It literally says that!

0:33:03 Andrew: Those are the words. You're fine but if any of your work is, yeah

0:33:04 Thomas: Wow, okay. Now this is a draft. I wonder if they're like, yeah, lawyer will kind of polish that up, but for now, you're fine!

0:33:11 Andrew: Side note, we're going to get to this because this is the part that I think is clearly bad faith. This document is written in that kind of like, you know, millennial cool lawyer speak, like it's not, it's not my style, um, but I think there's a place for it, and particularly when you're addressing a one-sided legal document, you know, to what is almost certainly going to be, uh, an overwhelmingly non-lawyer audience, there's a place for writing things in this way, right, and it can still have legal effect, right? A traditionalist, I write in a very stilted sort of way because, because I know the effect that that will have in court. There are lawyers that write like this and they deliberately hired the sort of like, you, cool dad, like, let me, let me turn this chair around backwards and, you know, sit and rap with the youth kind of lawyers to write this and good good on them.

0:33:25 Thomas: Uh-huh.

0:33:57 Thomas: Do You So You think it's that or, or do you think it's the fact that it's a draft, it's not done Yet

0:34:04 Andrew: Oh, no, no. No, it is clearly this is this is a legal document. It's clearly intentional. It is clearly written in that style. Wow. And there's a really great thing that I want to talk about in a minute. We'll get to it. So. But look, you can raise money on Patreon and register non -commercial. That's a huge loophole. Right. Lots of people who make money under the license by giving away their podcast, YouTube, art, whatever, and then do what we do here on this show. Right. Beg for money on Patrion. We'll never have To register a thing. Okay.

0:34:08 Thomas: Intentional Okay Yeah Yeah Yeah As long as you're not saying our podcast only on Patreon, no, Free version of It kind of thing

0:34:39 Andrew: That That's Right If If the content you're using is behind a paywall, is for subscribers, right, it's, that's commercial, the stuff that's behind the paywall. But if you have a paywall and you give out the, you know, and, and, and what's behind there is the, the changes are, are not related to the open gaming license, right? Patreons get a ad-free version of the show. Well, the difference is not material with respect to the D &D content.

0:34:41 Thomas: Right Okay Unless It's Like An Orc Reading an ad or Something, it's Like a, it's like an ad for like the mead over at this tavern that's In the protected Thing

0:35:10 Andrew: Yeah. Yeah, could, could be. But even then, there would be less of it. It would have to be, you only get the Orc Red ads on Patreon.

0:35:26 Thomas: They Work Red ads On Patreon, yeah, which would actually be kind of a fun perk

0:35:27 Andrew: Yeah. Yeah. So we're over to one sentence in. That's not great. Let's move on to sentence two of the article. Despite reassurances from Wizards of the Coast last month, the original OGL will become a quote-unauthorized document, and it appears no new content will be permitted to be created under the original license. OK, so no, but but this is a public notice. Right. In the show notes. I want you to pull this up. You'll have four documents up now. Now, this was the D &D Beyond message board post by Wizards of the Coast on December 21st, 2022. And if you don't click on that post and you're just reading the Kodega article, you would think that that introductory clause, despite reassurances from Wizards of the coast last month, would mean that the post said, oh, no, don't worry. The OGL isn't changing. Right. That's that's the implication that they get.

0:35:48 Thomas: Well Yeah Yeah Right

0:36:20 Andrew: They you told it. If you actually click on the post, here's what you will see. I'm going to read this word for word. Question two. Will the OGL terms change? Answer. Yes.

0:36:33 Thomas: Otherwise why would they be Doing it, no, we're just making another copy of it and we're gonna let you use the, what would be the point, yeah, of course they're going to change. You're making, why would they, they didn't make one for what, 20 years, no revisions.

0:36:34 Andrew: Yeah.

0:36:47 Andrew: 23 years. 23 years, yeah. Yeah. Right.

0:36:50 Thomas: And then they're going to revise it. Don't you think that would be because, you know, they're going to be able to change something? Like, wouldn't that be what anyone would think?

0:36:50 Andrew: None. And here's What They Say, what allowed me to make some inferences in the introduction. The OGL needs an update to ensure that it keeps doing what it was intended to do, allow the D &D community's independent creators to build and play and grow the game we all love, without allowing things like third parties to mint D &DI NFTs and large businesses to exploit our intellectual property. So, what's changing? First, we're making sure that OGL 1 .1 is clear about what it covers and what it doesn't. OGL 1 .1 makes clear that it covers only material created for use in or as tabletop role -playing games, TTRPGs, and those materials are only ever permitted as printed material, printed media, or static electronic files like EPUBs and PDFs. Forms of content, like videos and video games, are only possible through the Wizards of the Coast fan content policy or custom agreement with us. To clarify, outside of printed media and static electronic files, the OGL doesn't cover it.

0:37:54 Thomas: I ask, do you think any of this, I know you said what your view of the motivations are for the changes. Do you think any of these could be because of Stranger Things? Or do you think Stranger things would have licensed with them already? Like could Could this be like, oh shit, here's the most popular show, you know, on Netflix or on the like, and they're using kind of some of the stuff. Mind Flayer, for example.

0:38:15 Andrew: Yeah, it could be, but I suspect that they have a separate agreement. But but but Yes. Right. Certainly looking out and going, oh, Transformers released seven movies and made 80 billion dollars. Is it possible that we would have a D&D live action movie? Like sure, and do we, uh, then there you go, right, I did not know that, right? So yeah, so yes, certainly, again, 2000 you were not thinking about streaming on Netflix, 2023 you're definitely thinking about screaming, so yeah, right,

0:38:20 Thomas: Yeah. Oh, there is there. That is happening. You didn't know that there. Yeah. I just remembered that that's happening. Yeah.

0:38:50 Thomas: Out March 31st.

0:38:52 Andrew: Neat, it says, I can't

0:38:52 Thomas: Pine, Michelle Rodriguez. Seems like it'll be terrible. Can't wait.

0:38:57 Andrew: Wait, either, so yeah, that's saying we're making very, very clear here that we're talking about you making modules for the game, not you minting NFTs or creating a series on Netflix, right?

0:39:08 Thomas: It's called Dungeons and Dragons colon honor among thieves. I have a rule that no movie with a colon is good ever, ever, especially when it's the first movie of the thing. I don't know.

0:39:12 Andrew: When the first one? Yeah, that, that's

0:39:21 Thomas: Yeah. Like it's one thing. Okay. You got a sequel and maybe you add something, but like when it was the first one, you're already adding colon honor among what, call it honor among thieves or call it dungeons and dragons. You don't, you don't need the two things. You Don't need it.

0:39:22 Andrew: That's not a great right, Right.

0:39:35 Andrew: Agree. Last part of that second sentence, and this is everywhere, makes much hay of declaring the old OGL 1.0 to be an unauthorized agreement. It puts unauthorized in scare quotes. But

0:39:51 Thomas: Yeah, well, of course you would do that.

0:39:53 Andrew: No more so than that. Because making it unauthorised is the only way to make changes to the older document. So again, I want to go back to, I'm going to read you directly from OGL 1.0, which again, we told you anticipated, explicitly anticipated future changes. That's paragraph nine. Here's what paragraph nine says. Says. This is the OGL 1.0, the document in effect right now. Nine, updating the license. Wizards or its designated agents may publish updated versions of this license, okay? You may use any authorized version of this licence to copy, modify, and distribute any open game content originally distributed under any version of the license, so if you don't declare it unauthorized, you can't make changes to that

0:39:56 Thomas: Right. To make another one. Yeah.

0:40:43 Thomas: Yeah.

0:40:43 Andrew: OG you have to right, like that, by definition that's the way it's worded in the original definition and so

0:40:44 Thomas: Yeah. I mean. I mean, This probably isn't like an exact analogy, but let's say if I have a contract with you where, like, you can buy my wheat for ten dollars a bushel, I don't know. And Then I'm like, yes, inflation, price has gone up, uh, new contract, twenty dollars a bushel, that's that's what I have to sell it for. But you can also use the old contract if you want and just buy it for ten as well. How Would that make any sense? Like, yeah. If you're gonna change it, you would have to to make the old one not work. Otherwise, what are we doing here?

0:40:51 Andrew: Yeah. Yep. Right. You, have two eggs exactly Right. So, uh, but but let's be clear, anything that you've produced to date under the OGL 1.0 is still governed by that, that OGL 1.0. It's not retroactive. Yeah, exactly. I think people think unauthorized means retroactive, but other than that, I cannot understand sort of the backlash to it. I just don't get it.

Paragraph three talks about the SRD 5.1. It is misleading because section 1.1 of the new OGL explicitly defines their content as including that exact same SRD 5.1, then there two paragraphs of narrative then we get to paragraph six and this was the moment where my interpretation went from oh you just don't understand the law to oh this is a hatchet job here's what paragraph six says what's in the new OGL 1.1 a lot actually while the original Open Gaming License is relatively short document coming in at under 900 words the new draft of the OGL 1.1, which was provided to IO9 by a non-Wizards developer, is over 9,000 words long. Now that made me angrier than anything else in the article because it is technically true but so unbelievably misleading so the implication right

0:41:27 Thomas: Yeah. Right. Oh, well, there you go, must be evil, yeah. Yeah.

0:42:35 Andrew: I don't need to tell you the implication is, yeah, we took this simple kind of Pepperidge Farm 900 word document, we larded it up with a whole whole bunch of

0:42:42 Thomas: You used to be able to file your DnD gold taxes on a postage stamp, and now post postcard I meant postcard a stamp.

0:42:43 Andrew: Right yeah. And now they put all this lawyer bullshit yeah I like I like it either

0:42:53 Thomas: Would be a little, that was the old Republican, we're gonna make your taxes be able does whatever on a posted card. Do they care about that anymore? I, to forget, but joke stands, but now we've got these evil words, they brought in words, ah, evil.

0:42:53 Andrew: Way yeah uh they just voted to defund the IRS so right? Right they made it they the implication is yeah we brought in the lawyers we made it 10 times as long and who knows what scary lawyer crap is in there right now right the reality is the exact opposite I've been reading this to you Right. And you've noticed they've taken the original OGL 1.0, which really not very well written. OK, it's compact, but it's still full of impenetrable legalese and they've rewritten it to be more user friendly. So let's take paragraph. Let's take paragraphs. And so that that that uses more words. But we're going to get down misleading. This is paragraph seven of the OGL 1.0. This is the agreement that they're defending, that they're up in arms over changing is now 10 times too long. Right, seven, use of product identity, you agree not to use any product identity including as an indication as to compatibility except as expressly licensed in another independent agreement with the owner of each element of that product identity.

You agree not to indicate compatibility or co-adaptability with any trademark or registered trademark in conjunction with a work containing open game content except as expressly license in another dependent agreement with the owner of such trademark or register trademark use of any product Product identity in open game content does not constitute a challenge to the ownership of that product identity.

0:43:09 Thomas: Yeah. Yeah.

0:43:35 Thomas: What?

0:44:22 Andrew: The owner of any product identity used in open-game content shall retain all rights, title, and interest in and to that product entity.

0:44:27 Thomas: Any of that means I got no idea. Not, very accessible, yeah, wow.

0:44:28 Andrew: Of course not. I could explain it to you, but it doesn't matter. I think you'd agree, it's not very layperson -friendly, right? Yeah. Here's how OGL 1.1 handles. This is just an example. This is paragraph two. License. Actual draft, actual document. If and only if you fully comply with the terms and conditions of this agreement, you may copy, use, modify, and distribute licensed content around the world as part of licensed works on a non-commercial basis, meaning for free, not in exchange for money or any other thing of value. A lot more user-friendly. But wait, but wait, there's more.

Immediately after that paragraph two is a comments section that is meant to explain what they've just written in plain English. Now, you might recall that as the practice that is used in annotated statutes, that's used in horn books. And what I said, if I were writing a constitution, I would do it right. Like I would say, you know, the First Amendment says Congress shall make the law abridging freedom of speech. And then there's a little comment section. Freedom of speech means blah, blah, bla, but does not mean that. Right. Like that's how I would write

0:45:01 Thomas: Yeah. Yeah.

0:45:28 Andrew: A constitution.

0:45:28 Thomas: I wish the second amendment had 9,000 more words. That would be nice, I was gonna make the comparison, I was waiting for a moment, but it seems like we're kind of already talking about it. It's almost like, like, if you're talking about the evil of these added words in the Gizmodo article, it's almost like the election-y thingy, whatever that's called, where it's impenetrable, impenetrable language. And then, we're, like, hey, let's add, obviously, this means the vice president can't just determine what the election was.

0:45:52 Thomas: And then Gizmodo's, like. They added words. God. So evil. No, we've added clarification to that.

0:45:31 Andrew: Oh, God. Yeah. Yeah, yeah, yeah. Yeah. Here's Oh, oh, Wait, wait, till I read what the comment and these all read this way. Comments says, quote, "As we said in the intro, commercial distribution is any distribution you get paid for in any form, money, crypto, barter, your brother doing your chores for a week, whatever. It does not include donations people give you to support your work, so long as they can have access to your work for free if they choose to, and you inform them of that in a clear and obvious way." That's awesome. So to get to that over 9,000 words, right, it's 9,154, by the way, that includes two introductory pages of the FAQ, that's to help the layperson, not crazy legalese, and 11 of those comments sections, and the fact that we've now split one agreement into a commercial and a non-commercial agreement.

0:46:01 Thomas: Right? Right. Right.

0:46:48 Andrew: You subtract out the FAQ, you, you subtract out the comments section, the new non-commercial OGL is 2,682 words long. Okay, but you're defending the Kodak article.

0:47:00 Thomas: But Even Yeah. Even if that's like, that's even taking that on board, more words isn't necessarily evil or bad. Like, it could, it could end up being more words. Maybe they need more words to say, "Hey, we want to describe all the ways in which Nazis aren't eligible to do this," you know.

0:47:01 Andrew: Yeah. The New words, I, that's an excellent point, and I think they kind of fall under three categories, right? So, I was super briefly through them. Number one is lawyer stuff. I can't believe was not in the original OGL 1.0. That is things like the original one does not have a merger and integration clause, right? So it doesn't say this is the full and final document. So, like, if you went to court and sued them over it, you introduce side emails and be like, "Oh, yeah, I know the document says this, but like they emailed me and said like," that's bonkers.

I, right, don't want to say that it's malpractice to have drafted the first version, but I would never draft a contract that doesn't have a merger integration clause. It does not have limitations on liability. It does not have a provision that says, "Hey, if we failure to, if we fail to exercise any of our rights under this agreement, that doesn't mean we're waiving them for all time." It doesn't have a severability clause. It doesn't have a governing law clause, right? So, OK, so it's missing basic law stuff. That takes words. The second category of things

0:47:27 Thomas: Yeah.

0:48:15 Andrew: That it adds are things that are beneficial to Wizards, but I think in a way that makes sense, right? And the example we've been talking about, you led with it, is the new versions have a termination clause, right? Allows them to say, "Oh yeah, no, with respect to you, we're revoking this license." Why would we revoke this license? Yeah, someone creates Eliminates Sex Dungeons and Dragons, right, and complete with the saving throw that you have to roll when you're copulating with the half orc right, like, and, and suppose not only is it super inappropriate for kids, but, you know, but it's Also,

0:48:49 Thomas: You Ready for round two? Well, let me check my constitution roll here, see if, uh, sure

0:48:49 Andrew: Yeah. Right. Yeah. Right. Uh, Let's suppose it's also sexist and gross because, you know, the gamers would never make that, right? Under the old OGL 1.0, as long as it's just a generic sex dungeon and it's not set in the seven mounting heavens of Celestia, right? There was Nothing.

0:48:59 Thomas: Sure.

0:49:08 Thomas: There's no mind flayer. Yeah, goodbye.

0:49:11 Andrew: There. Was nothing Wizards could do about it. And the new one says, "Oh yeah, paragraph X, termination." I'm not going to read you the legalese, I'm just going to reach you the comment section because it's super clear. "We know this may come off strong, but it's important. If you attempt to use the OGL as a basis to release blatantly sexist, racist, homophobic, transphobic, bigoted, or otherwise discriminatory content, or anything we think triggers those, triggers those provisions, your content is no longer licensed. To be clear, we want to, and we'll always support creators who are using the OGL to help them explore sensitive subjects in a positive manner, but we will not tolerate materials we consider to be in any way counter to the spirit of Dnd Great, yeah, so that Right.

0:49:49 Andrew: Benefits Wizards, but I think kind of minimum fairness, the, the other sections that are like this are, for example, there's an indemnification provision that benefits Wizords. But, but this is the thing, again, I can't believe was not in the first agreement.

0:49:48 Thomas: First amendment Right.

0:50:04 Andrew: Suppose you create sex dungeons and dragons. You get sued by everybody because, of course, you do. Not only does the creator get sued, but wizards get sued. Right. It's a module for Dungeons and Dragons. And now wizards has to show up in court and defend itself and pay lawyers. And if there's a judgment taken, which there might be. Right, if you're they're

0:50:04 Thomas: Wait, sorry, are you saying they're getting sued? What are they getting sued for? So not just for infringement?

0:50:28 Andrew: Getting sued because of what a third party. Create, no, no, so here's, here's the way indemnification works.

0:50:33 Thomas: So You're saying sex dungeon and dragons, and someone, uh, dislocates their shoulder playing it, okay, just clarifying, also sued yeah yeah gotcha

0:50:37 Andrew: And Someone sues Sex Dungeons and Dragons, they will also sue Wizards Of The Coast Right And under the old agreement wizards just has to show up they have to pay their own lawyers they've got to defend themselves and if they take a judgment they can take it they can make a judgment against a fan work that you create, that's bonkers.

0:50:44 Thomas: Yeah right that They let you create for free, without them even been profiting, Yeah, no, that's nuts.

0:51:02 Andrew: That They Let you Create for free And And Sell, right. So the new provision The new revision has a paragraph 11, indemnification, that's, that's the legal term. It says, "Hey, if, if the licensee, the third party creator, is gets involved in a lawsuit and Wizards is named, the licensee has to pay for the attorney's fees or any judgments that suffered because of the work that you made." And again, does that benefit Wizards?

0:51:04 Thomas: Yeah. Yeah. Yeah, so that's nuts, completely Reasonable.

0:51:31 Andrew: Sure but seems Perfectly reasonable to me. And there's also forum selection, class action waiver stuff, like that, right? So if you choose to sue Wizards, you've got to sue them in Washington State, under Washington State law, you know, not part of a class action, not in front of a jury category, uh, they all economically benefit Wizards, but I think any lawyer would insist on, right? Like, I mean, you know, oh, what, you're gonna allow Wizards to have to go out to Louisiana and litigate under the Napoleonic Code? No, right? That They're gonna litigated in the place where they know the law. This is something I would insist upon in any contract, any of my clients, the

0:51:31 Thomas: Completely reasonable. Right.

0:52:04 Thomas: And

0:52:05 Andrew: Third category, right? I said there are four here. The third category is the limitation of license that we've talked about, and right, that is making crystal clear the OGL applies to modules, rulebooks, and not to NFTs. Uh, then the comment section says, "To be clear, this allows only for creation of role-playing games and supplements in printed media and static electronic file formats. It does not allow for anything else, including but not limited to videos, virtual tabletops, or VTT, virtual, virtual tabletop campaigns, computer games, novels, apps, graphic novels, music, songs, dances, and pantomimes. You may engage in these activities only to the extent allowed under the Wizards of the Coast fan content policy." I'd have time to break down that fan content policy. It's incredibly forgiving, as long as you're not making money on it. So lots of people who do virtual tabletops do

0:52:50 Thomas: Again, just to make sure, making money, still, it's always defined, so that Patreon donation, that thing is okay, okay.

0:52:56 Andrew: Not count. That is exactly right. So

0:52:58 Thomas: Wasn't for one specific thing. That's all, basically, that's what making money under this agreement is defined as. Gotcha.

0:53:04 Andrew: Right, That's the whole thing. So, yeah, I guess if you run a virtual tabletop campaign for money directly, Wizards doesn't want you to do that anymore. So that, congratulations, that's you, you've got a grievance, can talk about that. And then finally, the last category is stuff that is clearly for Wizards' economic gain. And if you want to call them greedy, here's where you would. Right. Gizmodo article doesn't mention to you that you waive a trial by jury and that it's easier now for them to update the one point one going forward. They don't have to declare it unauthorized anymore. They just have to push it out over social media or mail it to you if you're a registered user. User, um, then there's the registration and royalty system we're going to talk about that, but right for now, I will say that under the OGL 1.1 you have to register your stuff if it's commercial and less than 20 creators might have to start paying royalties starting in 2025. Okay, put a pin in that, we're gonna talk about it's a big change, but, but back to Codega's article.

0:53:05 Thomas: Yeah. How

0:54:03 Andrew: We're now at paragraph seven. One of the biggest changes to the documents is that it updates the previously available OGL to state that it is no longer an authorized license agreement. We've already covered that. By ending the original OGL, many licensed publishers will have to completely overhaul their products and distribution in order to comply with the updated rules. Large publishers who focus almost exclusively on products based on the original OGL, including Paizo, Kobold Press, and Green Ronin, will be under pressure to update their business model incredibly fast. So now this is where we talk about the competitor that I alluded to in the introduction. That's Paizo, the company that makes a role-playing game called Pathfinder. Here's the first thing you need to know. Paizo has 156 employees and its revenue is an estimated $35 million a year.

0:54:53 Andrew: So you know what? They can afford lawyers better than me to figure out how to comply with a three -page licensing agreement. Second, the bulk of Paizo's revenue comes from Pathfinder. I haven't played it, I don't know it, so I'm just going to quote from Wikipedia. Here's what Wikipedia says: the Pathfinder role-playing game is a fantasy role -play game, RPG, that was published in 2009 by Paizo Publishing.

The first edition extends and modifies the system reference document based on the revised third edition Dungeons and Dragons published by Wizards of the Coast under the Open Gaming License and is intended to be backward compatible with that edition. A new version of the game was released in August 2019, and it continues to use the OGL and SRD, but significant revisions make the new edition incompatible with content either from the Pathfinder first edition or any edition of Dnd. Okay, that's the competitor I was telling you about, and, and here is the way I'm lying, right? Wikipedia continues: Pathfinder was the top selling role-playing game in spring 2011, fall 2012, spring 2013, fall 2013, and summer 2014. During that four-year period, Pathfinder was at times able to outsell Dungeons and Dragons itself, which was the best-selling game between 1974 and 2010. Upon the release of Dungeons and Dragons' fifth edition, that game has regained the top spot since fall of 2014, with Pathfinder consistently ranking second. Second, still ranking second to D&D in sales. So your mileage might vary here, but I doubt that Wizards intended, when they created the OGL 1.0, to

0:56:26 Thomas: Yeah.

0:56:27 Andrew: Let a company steal their rules, tweak them a little bit, sell a competing product, and then literally outsell them for four years. And if Wizards is going, hey, man, we don't want to create any more Paizos, I of understand that.

0:56:39 Thomas: Me too, yeah.

0:56:40 Andrew: Third, even if you're, suppose that that didn't persuade, you're inclined to say, won't someone please think of the multi -million dollar companies stealing your work? Pathfinder adds some of their unique stuff to the core SRD 5.1 DnD stuff and is sold in either hardback form or PDF. So all their previous books and stuff were covered under the old OGL 1.0 and anything new they put out will be covered under new OGL 1.1. That, they, they also, Paizo makes some toys, comic books, birch, uh, but, but presumably that's all exclusive Paizo IP, right? Like nobody can sell D&D t-shirts without permission from Wizards. Only Wizards can sell them. There's no huge change to their business model that's coming. But here's what the OGL is going to make Paizo do. And Paizo, second, the largest company that's not Wizards of the Coast doing this, right, they're going to have to do three things.

0:57:31 Andrew: It's covered by paragraph six and seven of the new OGL 1.1. First, they have to register any new licensed works they create with Wizards by filling out a form. It's an online click box. Got to go to dndbeyond.com. That link's not live yet, but the OGL says it will ask for contact information, where you're publishing it, and describe kind of basic things about the work. The title, a summary, the name of the person or entity who created it. So two sentences. You got to do that. Second, because they make more than $50,000 in gross revenue from products covered by the OGL, they will also have to provide Wizards with the income they're making on those products. So that $50K is basically the transition from I'm doing this as a hobby or side gig to I'm going this is my job.

0:58:18 Andrew: Right. So the burden increases as your business becomes more sophisticated. And then third, for that tiny handful that become very successful, Wizards again estimates less than 20 creators in the universe, right, might have to pay revenues on any income they earn above $750,000 starting in 2024, with the revenues being due March 31st, 2025. So in other words, there's two and a quarter years of transition to help these big companies like Paizo update their business model. They don't have to, like, you know, do it in eight seconds like Gizmodo thinks, right? Uh, I'm gonna steal from our friend Liz Warren a little bit, and here's the way to think about the Wizards model.

First, three quarters of a million bucks are on you, all of 2023 is on you, but starting in 2024, for every dollar earned above 750 000 you will owe Wizards a quarter, or 20 cents if you've raised money on Kickstarter, that's a side issue. And again, this is not sinister, this was laid out in the public q and a and the FAQ section of the new OGL 1.1. Um, it's difficult, so notice I also said that Paizo will probably have to pay, really, Paizo is a big company, they have lawyers, those lawyers are almost certainly talking to Wizards of the Coast right now and trying to negotiate down the terms. Wizards

0:58:51 Thomas: Yeah. Well, Yeah.

0:59:36 Andrew: Document all over the places, stuff like, and you've heard me read it, you'll either need to sign this or sign a custom deal with Wizards directly for your, they've, they've invited to go, Paizo is gonna be fine, right? They're gonna be fine.

0:59:49 Thomas: That's What's so annoying about all this, it's like, ah, Wizards trying to make money, and you're like, well, did, was Paizo just giving away their product, or were they a charity that they also seem to be a million -million dollar company, so if one multi-million dollar company is making money off off the IP of another, it seems like you wouldn't uniquely blame that second one for being a money grubbing corporation, right?

0:59:50 Andrew: Yeah. No. Shh. Don't ask that. Yep. Yep. I Wouldn't think so. There's an argument that's like, well, you know, if you're making, if you're making over like, there's less incentive now to make over $750,000. Like that's the, that's the, I was exactly right.

1:00:26 Thomas: Now we're doing Republican talking points about it.

1:00:29 Andrew: That's the Republican argument against progressive taxation.

1:00:32 Thomas: I was, Andrew, I actually was going to become a billionaire, but then Liz Warren said that I'd have to pay like one cent per dollar over a billion. Yeah, it's nothing. There's nothing, that's nothing stupid.

1:00:32 Andrew: Yeah. Yeah, yeah. No, I'm not going to, not going to do that.

1:00:43 Thomas: Also, not only that, how much money Paizo is making is not dependent on their decisions. It's how many people buy their product, right? So like, is the, is the 750 ,000, you dollar worth of customer going to be like, nah, I'm not going to do it. I was going to buy it for Christmas. Nah, I think that'll, that'll cost Paizo 20 cents. I'm going to do this.

1:00:43 Andrew: Right. Yep. And I so, again, don't take legal advice from this podcast. I infer from that that they're not particularly interested in mid -level creators, right? Interested in the Paizos.

1:01:13 Thomas: All about the Paizos.

1:01:13 Andrew: It's all about the Paixos. Uh, there's a section called "What's Changing in the New OGL," and it says all creators will need to clearly and deliberately distinguish their content from licensed content. The new document reads that this must be done in a way that allows a reader of your licensed work to understand the distinction without checking any other document, and suggests a different color, font, asterisk on the page, or putting a separate index or list in the back that it lists out exactly what you used from the SRD. This is described as new and onerous. Since Kanega made a big point about the previous OGL being only 900 words, I'm surprised they missed paragraph eight of the old OGL, which says the exact same thing, just without the helpful suggestions. It says, "Eight, identification. If you distribute open game content, you must clearly indicate which portions of the work that you are distributing are open game content."

1:01:14 Thomas: Can

1:02:04 Andrew: So it's just no change whatsoever. Some more taking a part of this article that I can do, but I think I've made my case. If you want to see the full show notes, we're going to put them up on Patreon.com for everybody. You don't even have to be a patron of the show. You just have to go to patreon.com/law, click on OA 675 show notes, and you will see 23 pages, including stuff that I didn't get to because of time, because I do want to end with the thing you should be mad about. Out Yep.

1:02:33 Thomas: That's right, pins. Huh?

1:02:35 Andrew: There we go, time to pull it out. Because this is mentioned passingly in the third to the last paragraph of the Gizmodo article, but nobody is up in arms about it, and there is a real problem. So paragraph 10B of the non -commercial agreement, paragraph 12B of a commercial one, it reads this: "12, other products. Sometimes great minds think alike. We can't and won't cancel products out out of fear that they'd be viewed as similar to licensed works. Therefore, A, nothing prohibits us from developing, distributing, selling, or promoting something that is substantially similar to a licensed work. And B, you own the new and original content you create.

You agree to give us a non -exclusive, perpetual, irrevocable, worldwide, sub -licensable, royalty -free license to use that content for any purpose." It's that last sentence, that's the problem. Symmetry is the hallmark of fairness. So sometimes there's a reason to protect one party differently. But generally, if one party has terms different than the terms it reserves for itself, that should send up a red flag. And these are red flags. 12B is asymmetrical in three ways. First, it uses that word irrevocable, even though Section 2 and OGL 1.0 doesn't, right? Perpetual just means this agreement has no fixed expiration date. Right. That it can't be revoked.

Revocable means it can be revoked. So Wizards isn't giving creators an irrevocable license to use their stuff. Right. They're saying, "Oh, no, it's revocable." Right. And we're going to take it away from you if you're a Nazi, if you create sex dungeons and dragons. Right. They are taking an irrevocable license to use yours. That's not fair, right?

1:02:46 Thomas: Hmm.

1:03:23 Thomas: So They can use sex dungeons and dragons forever if they want. That's interesting.

1:04:15 Andrew: Uh, 12B license includes everything you create with no exceptions, right? That includes your super cool characters, place names, right, all that stuff, that they reserve for themselves. And third, it's for any purpose, right? Including NFTs.

1:04:28 Thomas: Interesting.

1:04:28 Andrew: Right, just their modules and rule books. Right, suppose I create a new character class, right, the half half wombat. It's got minus one to dexterity, plus two to charisma. That's original content, I own that. Then I create a new character, Normo the half wom bat right, for whatever reason it goes crazy viral. Under 12B, as it's written right now, Wizards can use Normo in their next monster manual. They can write an entire module starring Normo. They can sell Normo t -shirts They can create a new Dnd TV series for Netflix that stars Normo, and then have to pay me one dollar for it. Now, Now, the good news is I'm not sure that this provision is enforceable, OK?

1:05:05 Andrew: It probably isn't for all the reasons that I just described, because it's so ridiculously unfair. But, you know, don't take legal advice from a podcast.

1:05:12 Thomas: It It is. I mean, oh, it just the, oh, idea of like, well, we're letting you profit off of our IP, um, in exchange we get to just use whatever you do. That. I mean, that doesn't seem like that unfair to me.

1:05:23 Andrew: Did states apply it in different ways? California, for example, has reasonably more protections for substantive unconscionability, procedural right? Unconsciability. This is really, you Know, kind of a take it or leave it. So look, if I were a creator, I would strike that second line of 12B. I encourage Wizards, I modify the policy. It's still in draft form to eliminate that secondline of 12b. If you're still hopping mad after listening to all of this, organize around striking that secondine of 12 B. That would be productive. You chance of getting that change. It's not fair to creators. And in my view, it's really the only things agreement that isn't fair. I think it's lawyering gone awry. And if had written the article about just that same length, same tone, same everything, I'd be sharing out the episode instead of this.

1:06:11 Andrew: So don't be mad over the things Gizmodo wants to be mad about. Be mad about 12B, demand Wizards

1:06:17 Thomas: What we want you to be mad about.

1:06:18 Andrew: Change 12B. That's right, there you go. And free Normal.

1:06:21 Thomas: Yeah. Interesting. Well, sure, there's plenty more you could have talked about, but that'll be in those show notes. I've, I've been putting a leak though. The one thing we basically have to do, because of the so many episodes and so much work, is I'm no longer doing any detailed show notes. We're just, they'll be in, I'm putting the link, for everybody can go see your full notes now. Used to be a patron perk, but it's just, practically speaking, it's just something I got to do to be able to keep up. So you'll see that link. I've been doing it for a week or two now. You'll see the link to go see Andrew's full show notes in our show notes, so that's pretty cool. Now everybody gets that. But bottom line, boy, what a what a bad article that seems. And as you said, I mean, that seems you're so bad. It's so incorrect that it feels a little bit targeted, a little bit nefarious.

1:06:47 Andrew: Yep. There you go, I The the 9000 words thing seems nefarious to me, the, oh, creates, you know, if it declares the other one, you know, a non-working doctor Like that, I

1:07:12 Thomas: Yeah. Oh, you're you're this creates death panels for your creation.

1:07:20 Andrew: Yeah. Some of it, some of it seems, you know, just careless, right, like Oh, well, maybe you missed X or Y, and you know, maybe that's why, I guess, Moto should, you know, me maybe ask a lawyer, but not have their game writer interpret legal documents. Um, so some of the things that could, could just be careless, but the tone is really unmistakable, and the, like, "You won't somebody please, please think of the," you multi-million dollar companies.

1:07:29 Thomas: Mm hmm. Yeah, yeah.

1:07:48 Thomas: You have the other multimillion dollar company, you You know that? Wow. So great, great breakdown, Andrew. I want to encourage listeners because people are posting everywhere about this. They're angry, they're upset over something that seems like a lie, to be honest with you. So if you see people sharing that, talking about that, and we know you do because you're emailing us about it, share this episode, please reply, say, hey, lawyer, that learned his ethics from, no, don't, don'T say that part.

1:08:01 Andrew: Yeah. Yeah, do God, don't say that.

1:08:15 Thomas: Brilliant lawyer, uh, breaks down why this is, uh, this is false, this is not true. I, it'd be great, you know, that'd be helpful, um. I, to see, I, I just saw one now flash across my screen as you were talking, another, you creator that's like, "Ah, I can't believe Wizards is doing this, I'm unsubscribed." You know, it's so, I, that sucks, you know if you're, if you want to be mad about the thing, 12b that you said we should be mad, sure, but like, don't be mad. You You know, I don't like the fact that people are being misled and people are being led to believe that there's some big nefarious plot here by Wizards.

1:08:31 Andrew: Yeah. Should be.

1:08:45 Thomas: All right. Well, thanks so much for listening, everybody. Fantastic breakdown, as always, Andrew. Please share that show, as I said. And looking forward, gosh, there's so much to talk about. We'll see you on, I suppose, Sunday late night, if you're Pacific time, Monday for basically everybody else for our next episode. And if I keep up with the numbering system, that means I need a new intro for that episode. And I don't think I can do that. So we'll see. We'll see what we do. Maybe we'll have to change the numbering because we do more episodes now. Either way, we'll see you then.

1:08:45 Andrew: Yeah, I

1:09:15 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:09:49 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.