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Opening Arguments Needs a Bag of Holding for All of These Straw Men

The Opening Arguments (OA) podcast decided to wade into the OGL battle, and take a contrarian position which is against what 86%+ of the roleplaying game world wants (per Wizards of The Coast’s own survey). I love contrarian opinions, but I also love a good debate, so I decided to write a rebuttal to their podcast.  I’m only going to tackle the arguments which, given my background in open source and product management, I think I can meaningfully provide a unique and valuable opinion. Finally, for clarity, I’m going to tackle each of the specific arguments OA made in the podcast, in the order they made them.

It started off “OK” – they’re right, the OGL 1.0a is not open source. That’s correct, it’s not an open source license. The OGL is not listed on the list of licenses at opensource.org. But, there’s still a problem with that. First off, that’s not the correct standard because the Creative Commons licenses are not listed at opensource.org either. The Open Source Initiative (OSI) is dedicated to source code, not prose, not images, etc. They’re right by the letter of the law, but they’re wrong in spirit. The OGL was absolutely intended to give some meaningly similar rights as the open source licenses which were already pioneered at the time. To be fair, Creative Commons hadn’t been released yet, and the OGL 1.0a was pretty groundbreaking at the time. Everyone was still learning how to do what we did in the open source world, but with text, images, games, etc.

They’re also right about copyright. It is correct that licenses delegate rights to users, and if the license doesn’t explicitly state that a licensee has a particular right, they don’t get it. Technically, Wizards of The Coast (WotC) owns all of the rights to D&D and doesn’t have to give anyone rights to their copyrighted content. But, there’s a small problem with this as well. The System Reference Document (SRD), the most important piece of content which is being argued over, is quite limited, and includes bare bones game rules (which can’t be protected by copywrite), and public domain monsters and classes (Wizards and Dragons aren’t owned by Wizards). So, again. It’s quite debatable whether WotC

Next they tackle Nazis and Crypto bros. Fine. We all hate them. Copyright *can* be used to fight this, but it probably isn’t the right way. That’s not what open source companies do. Instead, Trademarks are the way to fight Nazis and Crypto bros. People can use the game rules all they want, copyrighted material distributed under open licenses, but they have no right to associate their brand with your brand, nor to claim computability with Dungeons & Dragons which is definitely trademarked. Using trademarks, protects the brand, while still leaving freedom untouched. As an example, here’s a lawsuit which TSR filed against Starfrontiers for their racist use WotC trademarks. Not once is the world copyright mentioned. Nuff said. Trademarks work quite well to protect against Nazis and Crypto bros.

Next, they claim that the OGL 1.0a enabled competitors to compete with Wotc. Yeah, that’s how the spirit of open source works. The idea is to grow the pie and divide it well (more on that later). If opening the game rules grows the entire ecosystem faster, WotC makes more money.

OA then argues that the OGL 1.1 (and 1.2) doesn’t change the type of content you can produce using this license. I think this is a pedantic argument at best. The D&D community has spoken, and we think it does materially change what kind of content can be released. Again, if you create a complex web of deny lists and allow lists when giving out a license to copyright material, it creates friction, slows the growth of the community, and ultimately limits the serviceable market for WotC.

Next they explore FL108 which states, “Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form” (hint, Trademarks are what protect other things). I’m not a lawyer, but I believe OA is taking a very liberal interpretation of, for example, a blue dragon and claiming that it could be protected under copyright, which is patently false. It “might” be possible to protect a blue dragon with a trademark, but I’m skeptical that one would be granted for something so closely derived from public domain content. WotC is essentially taking a bunch of free stuff, repackaging it, then claiming they have a copyright on it, but copyright doesn’t protect blue dragons, it protects books, images, and songs.

Next they critique the fear because the OGL 1.1 draft had 9000 words, versus 900 in the 1.0a. They demonstrated that if you take out all of the comments and clarifications, it’s actually only 2000 words, versus 900, and written a lot more clearly. I’ll actually agree on this point. Largely, WotC put a lot of time and effort into making the new one very readable. It still violates the spirt of open source, but at least it’s readable 🙂

OA points out that Paizo has 156 employees and makes $35M in revenue (more on this later), and dismissively states that Paizo can afford to hire lawyers to comply with this new OGL 1.1. This is tone deaf, and completely glosses over the fact that if Paizo is forced to pay an unplanned 20-25% royalty (what’s mentioned in the OGL 1.1 draft), that would likely put them out of business. At a minimum, they’d have to make some major changes to their business model, likely lay people off, etc. Worse, he doesn’t mention that WotC made $1.3B in 2021, the same year Paizo made $35M. Even if D&D is only half that revenue ($650M), Paizo is making 5% the revenue of WotC. Other competitors like Kobold Press, and Green Ronin are even smaller. OA even cites that with the proposed $750,000 limit in the OGL 1.1, only 20 competitors would have to pay. This means all of the competitors are making between $35M on the high-end, and $750K on the low end. Doing some product manager, back of the napkin, math, I’d call that $50-60M in revenue for all of the competitors combined, meaning WotC is likely winning 90%+ of the revenue in this space. This is a greedy proposal that would have stunted the growth of the community.

The final big rock I’ll tackle is around Paizo competing with WotC. OA claims that, because of the OGL 1.0a, between 2010 and 2014, Pathfinder sold more copies than D&D. But, what they fail to mention is that 4e was 1. Released with a heavily revised combat system which was quite controversial 2. An unintelligible System Reference Document 2. not even released under OGL 1.0a, but a different license. Pathfinder didn’t sell more copies than D&D because of the OGL 1.0a, they sold more copies because WotC failed to create something the market wanted. Once WotC realized their mistakes, released 5e with a normal SRD which was under the OGL 1.0a, DnD surpassed Pathfinder again after 2014. It seems pretty clear to me that the OGL 1.0a saved WotC and helped them grow back into the market leader, not the other way around.

Anyway, I love when people take a contrarian stance, and I had fun analyzing OA. I hope they take this in good spirit, and I thank them for publishing their opinions and being able to have an open debate! Also, given the recent announcement by WotC, that they’re releasing the SRD for 5.1e under Creative Commons licensing, this is all just for fun.

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