Property, intangible

I hadn’t paid a lot of attention to the furor over a proposed license change to the Dungeons & Dragons game by Wizards of the Coast until I read an article on Ars Techica. The original license, called the Open Game License Version 1.0a, is what I would call an open culture license, granting liberal use of copyrightable content.¹ The license was inspired by the free software movement and the GNU General Public License. As explained by Ars Technica, “this wasn’t just altruism on WotC’s part; Dancey said the license would encourage the kind of network externalities that would make the D&D rules system more popular, thus increasing sales of the game’s core rulebook and allowing others to profit off of content based on that system.”

However, a new license for Dungeons & Dragons, the Open Game License Version 1.1, was recently leaked and the outrage commenced. Under the new license, WotC was demanding royalties for large commercial exploitation of Dungeons and Dragons. WotC has since walked back the release of the license. The similarity of the original game license to open source licenses is what caught my attention.

The grant in OGLv1.0a was of a “perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.” The license also says “Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.” These terms strongly parallel those found in open source software licenses, a field in which I practice.

The draft of the new license says that “this agreement is … an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.” In the new license, WotC makes it clear that use of Open Game Content that was available for use at no cost prior to the adoption of the new license would now bear a royalty for large commercial exploiters. In other words, in the new license WotC was claiming that OGLv1.0a was no longer valid and the “perpetual” grant in it was terminable at will. Can they do that? No one has thought that to be the case in open source licensing, so this was, to me, a novel effort.

And … I don’t think so. We’ll start with enforceability of the terms of the original agreement against WotC. EFF’s original analysis was that the license was a “bare” license, i.e., a grant of rights by WotC that is not enforceable as a contract. They now have updated their guidance to state that it likely is an enforceable contract.

However, even a promise cannot be rescinded if there has been reliance on it. “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Restatement (Second) of Contracts § 90. People making a living by exercising the rights granted to them under the original license certainly were relying on the promise. The grant was perpetual, meaning it had no defined end. Trying to revoke or terminate the grant where the user is otherwise fully in compliance with the conditions on the promise would be a basis for making a promissory estoppel claim against WotC.

If it’s a contract, the original agreement did not have any provision allowing for termination for convenience, only for cause. Trying to revoke or terminate the grant without cause would give the user grounds for a breach of contract claim.

WotC anticipated this problem. In OGLv1.0a, the Open Game Content could only be used pursuant to the terms of “any authorized version of this License.” (§ 9) In the open source software realm, this is understood to mean that a user can rely on this version of the license or a later version – that is, the user has the option of relying on the original terms or instead availing themselves of favorable changes to the license. They also therefore have the power to reject a subsequent version of the license that has unfavorable terms, as is the case here. The word “authorized” was probably in the OGL1.0a to make sure no one tried to create a modified version of the OGL license not approved by WotC, or use a different license entirely, and claim that it applied to the Open Game Content.

But draft version 1.1 of the license is trying to hack this construction. The new license says “the previously available OGL 1.0(a) … is no longer an authorized license agreement.” By “deauthorizing” the original license, they are claiming that it is no longer available as a license for the Open Game Content anymore. Maybe it works, I don’t know, hacks work sometimes (GPL, looking at you). But it is undoubtedly contrary to the intent of the original license and original license drafters.

There may be contract formation problems too, but I don’t know how WotC plans to roll it out. The new license says “by using Licensed Content in this manner, You agree to the terms of this agreement.” I don’t know how, though, WotC will be able to show that the user was aware of, and assented to, the new license rather than using the game content based on the permission granted in the original license.

I hope their effort isn’t legally effective, although we’ll probably never know since they claim to be rewriting the license. But it might disrupt far more than the D&D world if their effort succeeded.

Possible or not, there is also the question “should they do that”? In my opinion, that’s a resounding “no.” They have built an empire by open licensing and now are reneging. We see this effort fairly often in open source licensing, where someone wasn’t thoughtful about their original license choice and how much they were giving away, or they deliberately used a permissive license to gain a following but later decided they wanted a piece of others’ pies, or they are pressured by investors into a more robust monetization and can’t think of any route to monetization other than exploitation of copyright. But I’ve not seen anyone so bold as to think they could terminate the original grant. It’s a complete betrayal of a very devoted following. Despite WotC’s guarded and limited mea culpa, they have damaged their reputation and lost the trust of gaming companies who are threatening to abandon D&D. They’ve shown that they don’t think they have any obligation to maintain a 20-year promise that hundreds of thousands of people trusted. The draft contract also has some terms designed to heavily favor their own rights and disenfranchise users.² It looks very much like the “rights ratchet” that happens in open source. I think WotC has overplayed their hand.

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