Why The OGL 1.0a Is Important, Part Nine Hells: the System Reference Document and getting off Lorraine Williams' Wild Ride
OGL
Okay, so this is coming up because
I'm getting the impression from some posts that a lot of redditors and readers still don't quite understand everything the current OGL covers and what it applies to. It's not just "rules" or the right to contribute - there's a definite question of intellectual property, and access to it, involved.
In The Beginning, There Was Dragon
So first, we need a little bit of background: from its inception and up through the 90s,
Dungeons and Dragons was considered its own, wholly-protected intellectual property. While it did borrow liberally from the public domain, there was also a lot of original creative work involved. Many elements of it were at least partially original creations of the various contributing authors (which ended up under the ownership control of TSR, Inc. as an entity) and many of the leaders involved, both Gary Gygax and later Lorraine Williams, considered a lot of elements to be integral parts of the IP that couldn't be copied, even in part. You'll hear today that "rules can't be copyrighted", but that was a lot less clear when D&D was younger, and a number of
D&D court cases, as well as cases in adjacent industries, helped establish that precedent (much to the annoyance of TSR's leadership).
Lorraine Williams, you see, was especially litigious about this, and often locked horns with Gygax when he attempted to spin up alternatives to
D&D, or even just contribute
D&D material outside of TSR's control. TSR also had a tendency to sue people who strayed what they thought was too close to
D&D's intellectual property - be it with squid-faced brain eaters, flying eyeballs with tentacles, or what have you. Except that, of course, this is where some kind of nasty intersecting of intellectual property law could happen.
Take, say, well, dragons. TSR obviously cannot copyright "dragons" conceptually. They're public domain, the idea has existed for almost as long as the written word. Well, what about dragons of specific colors? Well, no, you pretty obviously can't paint a dragon red or green and lay claim to all such dragons. A red dragon that breathes fire? No, I'm afraid the
Beowulf Dragon has you beat to the "fire-breathing dragon" by more than a millennium. Ditto a poison-breathing dragon, with Fáfnir coming in to be the spoil-sport this time.
Okay, but... what about a system of colored dragons, with the red dragons, for example, breathing fire, having crested horns, tending to live in mountains, having an inclination to terrorize and "rule" land tyrannically and chaotically, and their hoard of wealth mostly consisting of physical valuables, coinage, and abducted maidens? With green dragons contrasting by being generally rhinoceros-like in hornage, preferring arboreal domains, having a poisonous or acidic breath, and taking far less interest in pillage and murder and instead preferring to focus on the "hoarding" of knowledge and secrets...?
This all starts to become a lot muzzier, doesn't it? You would think that, sooner or later, the exact expression of "a dragon" would become something unique to
D&D. But where
exactly does it begin or end? What part, what expression of "dragon" can
D&D truly lay claim to? You could make a perfectly good-faith claim that the
D&D chromatic system, with its quite detailed and delineated definitions of how various dragons live and operate, is a unique enough expression of "dragon" to be a protected part of the intellectual property and copyright. But you
can also put forth an argument, in just as good faith, that the concept of "dragon" is so ancient and prevalent, so integral to the concept of fantastical stories, that any and all expressions of "dragon" must still fall under the concept of scènes à faire and are essentially protected by public domain - the most TSR could lay copyright claim to would be
specific dragon characters created for their works, like Takhsis or Gwyneth.
Williams' Wild Ride
Needless to say, while I'm not sure dragons
specifically came up (that's a question for someone like
Shannon Appelcline), TSR of the 80s and 90s tended to take positions more aligned with the former, that their expressions of various things were integral and unique to the
D&D intellectual property and covered by copyright, and that they had a right to deny others the use of these expressions. As a result, TSR of this era tended to be Lorraine Williams' Wild Ride - the company was constantly embroiled in legal action to assert its claim over various tabletop gaming and fantasy elements, and wildly oscillating between victories and embarrassing defeats. The culmination of all this was the incredibly memorable episode of Lorraine Williams and Rob Repp
suing the entire internet - issuing cease and desist notices, with full intention to follow through, to virtually every fan site and bulletin board with D&D content. And they even went
out of their way to make clear that this wasn't just about FTP distribution of book scans and whatnot; they were absolutely, unambiguously, going to go after people offering free homebrew scenarios, monsters, and the like because they dared to use
D&D stats and reference rules in
D&D rulebooks. TSR was asserting that they, and only they, had the right to license out the essence of
D&D and say who could and could not produce
D&D-adjacent content, free or otherwise.
As you may imagine, the entire venture was a complete fiasco, and was a bit of a landmark for the idea that rules are a process not subject to copyright, and for fair use in general. While TSR ultimately "won" in some regards and a fair bit of content got taken offline, it left players and potential users utterly furious with their behavior in a way that echoes and perhaps even eclipses today's OGL 1.x furor. And that much bad blood led to, well, less product leaving the shelves because people had a bad taste in their mouths and way less collaboration and homebrew happening.
So many of
the lawsuits of the Wild Ride Era were ultimately devastating to the company - a number of them may have been "wins", but in the end so many millions of dollars disappeared down largely unnecessary legalistic black holes in order to exhaust competition that, as soon as Williams v Interbutts contributed to a sales slump and difficulty in making good on payments to Random House, that was the nail slammed into TSR's coffin so hard, the coffin did a 1080 in the air and landed perfectly in its grave. There were a lot of other contributions to that era being a "wild ride" - the "core team" of Planescape
asserts that Sigil was a reflection of how TSR felt internally at the time of Planescape's publication - and we haven't even touched on some of the wild shit like TSR being a major bootlegger of
Lord of the Rings stuff back when the American LotR rights were still in a bizarre legal limbo, but the lawsuits were incredibly prominent in the minds of the public and were generally known to have been a contributor to TSR's rocky history and
D&D's sometimes-rough publication history.
Which, in the late 90s, left new owners Wizards of the Coast in a bit of a pickle.
Dancey's Sleight of Hand
So, in 1997, WotC found themselves in possession of, even then, still the most prominent name and brand in table-top roleplaying, even if the fiascos and publication troubles of the last few years had left it feeling rather dented. A lot of questions hung in the air; was WotC going to be as litigious as TSR had been? Did the game even matter to them, with Magic undergoing its first true wave of explosive popularity? What form would updates to the game take? And, seriously, how were they going to handle TSR's old litigiousness, and how would those old questions shape things going forward?
Because, you see, despite the astounding amount of litigation coming out of Lake Geneva, a lot of the more foundational questions were still not entirely settled - just where
did the
D&D IP begin and end? How much could they lay claim to the expression of a "dragon"? A "dark elf"? A "demon"? And even if they did get "settled", that was no guarantee it would really remain settled forever; a challenge could come up years later claiming the original decision was in error, and a new judge could rule a different way. In some ways, litigious or no, it felt like
D&D might be in some level of legal limbo forever.
And so Ryan Dancey, one of the architects of WotC acquiring both TSR and Five Rings Publishing, had an idea: an Open Gaming License with a System Reference Document.
Now, we should make it very clear here that Dancey's motivations here
were anything but totally altruistic. If anything, the man's own words make it all seem fairly scuzzy: he was hoping to help the game catch on to such a degree that the sheer volume of content produced for the game would muscle competing systems into the margins of the market. And yet, at the same time it was a genius solution to several issues at once, including one TSR had but recently authored for themselves: WotC would put together a System Reference Document for D&D's new edition, and anything in this "SRD" would be completely free for anyone who agreed to an extremely lightweight Open Gaming License simply by putting the relevant text of the OGL in their work - no need to even consult with WotC ahead of time.
And sure, this SRD included all the basic rules, things like feats, a lot of the core game crunch from the Player's Handbook. But it also included a
huge number of elements of
D&D that had previously been tightly controlled portions of the intellectual property.
Like, that whole previous example with dragons? Yeah, the classic chromatic and metallic dragons, and brief descriptions for how they work and operate,
are right there in the SRD. This turns the whole previous problem on its ear - the question of precisely how much "dragon" WotC can own is now moot, because they have assembled this specific Expression Of Dragon, and if you agree to a lightweight license that makes easy provision for you keeping all expressions of your own Product Identity under full ownership and control, you can use this given Expression Of Dragon however you like, with no royalties, commission, or expectation of external control. Want to just make them brutish animals? Go for it! Incredibly sophisticated draconic politics? Have at it! Rather than try to fight people over Whose Dragon Is It Anyway, they were providing a template for what Dragon could be that anyone could use essentially for free, and could help define what "dragon" was in the modern zeitgeist (and if this ended up making people curious about that game that has both dragons
and dungeons, well, that's just nifty, isn't it).
And the thing is, it hardly stopped at dragons. The SRD was a bit of a shocker when it was revealed in 2000, because it felt a little bit like Dancey & co. had kinda decided to give away the farm. The only D&D creatures not covered by the 3.0 (and slightly revised 3.5) SRD, as stated in the OGL 1.0a's Product Identity section, were beholders, gauths, carrion crawlers, displacer beasts, githyanki & githzerai, kuo-toas, mind flayers (including the term "illithid"), slaadi, umber hulks, and yuan-ti.
You know what is in the SRD?
Drow. The Literal-Ass Drow. Including the very term "drow".
Like, it has to be remembered that this was coming out at what was still the absolute
peak of The Drizzt Frenzy - R.A. Salvatore's books were pretty much one of the few aspects of D&D that was still firing on all cylinders at this point, and now here comes Dancey and the gang just saying that
the drow are basically open-source and that anyone who wants to make some (non-Drizzt) Drow Content™ to keep those Drizzt Fanboys satisfied can just go for it. No royalties, no negotiations, no nothin', just go bonkers so long as you leave The Boy Himself (or his direct supporting cast) alone without a separate IP license. The TSR of yesteryear would have violently asserted that the specific form of "dark elf" the Drow represented was a part of the IP worth assiduously protecting, and now WotC's just givin' 'em away.
Also shocking was the inclusion of a huge raft of planar entities, including basically all of the classic Manual of the Planes/Planescape
demons and
devils, right down to the
specific terms used for each kind. You explicitly couldn't call them "tanar'ri" or "baatezu" (those terms being specifically called out as Product Identity once more), but an ice devil was indeed A Gelugon, as insectoid and spear-using as ever, and if you felt like having Explicitly A Babau fistbump Explicitly A Marilith in whatever you were making, nobody was stopping you. You can't have these barbazu and lemures hanging out in the Nine Hells of Baator or the hezrous and nalfeshnee chilling in the Infinite Layers of the Abyss, but if you want Nonspecific Hell and the Nonspecific Abyss to be in conflict, sure, go for it. You want them to both team up against Nonspecific Heaven, which has Explicitly
D&D Planetars And Solars defending it? That works too! Also crucially,
tieflings and aasimar - entity-types and terms that had previously been
explicitly part of the Planescape setting and
D&D IP, easily to the level of at least illithids - were now explicitly part of the SRD and thus the OGL, and were free for anyone to use conceptually. The rules in the SRD even included "playing as beings from the monster list" rules, making explicit that they were effectively okay for player use, never mind the permission to get creative with SRD entries if you wished! All together, this has been one of the most successful examples of the OGL - tieflings especially are nearly part and parcel of fantasy now, and even OGL stuff that often leaves the dragons and demon at home will often have a little tiefling or aasimar involvement.
And the best part of all this? The sheer breadth, and ease of implementation, of the OGL and its SRD made it an extremely attractive option for public homebrew sharing. No longer did you need to worry about the owners of
D&D coming to break your door in for daring to refer to Armor Class - just make sure the OGL text is visible somewhere on your website, and you're free to get down with all this as much as you like!
And we haven't even talked about things like all the classic
D&D spells being included in the SRD, meaning that anyone using the OGL is as free to use the
D&D-specific versions of these concepts as they like - but we're going a bit long, and you get the idea, so it's enough to say it's there.
The whole thing was an incredible sleight of hand by Dancey - insidious in ways, no doubt, but in so many others, it fixed all the problems TSR had gotten itself into over the past fifteen years. These expressions of public-domain-adjacent concepts were now free to use with the lightest of strings attached (thus rendering other determinations of their legal status just about moot and offering a guarantee that no legal challenge would come anyway if used with the license), the entire Internet Homebrew issue was resolved, and now the game could have all kinds of content made for it that WotC didn't have to lift a finger for. It was a perfect way to finally get the game off of Lorraine Williams' Wild Ride.
Which is all an aspect of why some of us are worried about recent events.
OGL 1.Whatever and Chris Cocks Wanting To Ride Once More
So a lot of hay has been made about the other problems with "de-authorizing" the 1.0a OGL and what that might mean for small publishers, somewhat larger publishers, legacy publications, how much rules can even be copyrighted, et cetera. Any "de-authorizing" of 1.0a, assuming such a move survives a legal challenge, would perforce include de-authorization of the 3.5e and 5e System Reference Documents, and the free use of all the material within that could otherwise be proprietary property of Wizards of the Coast.
There have been indications that this is something of a motivator for the current executives of Hasbro and WotC - the original leak had
WotC talking about how "the Open Game License was always intended to allow the community to help grow D&D and expand it creatively; it wasn’t intended to subsidize major competitors" (which, you know, we can see isn't true, as Dancey would have loved to have competitors feeling forced to play in
D&D's playground and make product supporting it), which feels in significant part like a complaint that potential competitors are getting to use so much "established
D&D IP" for free.
(To my own,
Pathfinder CRPG-loving butt, that feels more specifically like a complaint about
Wrath of the Righteous and how it uses basically every demon in the SRD and then some, but that certainly can't be the only trigger.)
Now, we don't have an SRD for
OneD&D yet since that game isn't
finished, which is perfectly fair, but it isn't very hard to imagine that document pulling in the number and kinds of creatures available for free significantly (the 5e SRD was already quite a bit thinner than the 3.5e one, and
already removed all references to aasimar). And one of the main reasons to de-authorize 1.0a before cooking up a new OGL would be if you didn't want any valid SRDs out there that offered certain parts of the IP for availability over your new one. So it doesn't feel like too much of a stretch to imagine that, yeah, part of the plan here is to significantly pare back what parts of the
D&D IP are available "for free". They'll want to defend exclusive future use of those IP Elements.
They want to start putting the Wild Ride back together.
Except... it feels like a real question as to whether CEO Chris Cocks and his team understand why the OGL was assembled in the first place.
Like we've established: the OGL 1.0 and 1.0a were assembled and released in the way they are not just to benefit "the community" and "the fans", or even "help WotC get market dominance"; it was also intended to help
shield WotC and
D&D. It was a solution to legal questions that had dogged the franchise for a decade or more. It was a tool to help re-establish confidence in the brand at all after a farcically disastrous legal maneuver. It has helped to keep
D&D relatively free of legal entanglements for more than twenty years now. And it isn't like America and the rest of the anglosphere has become less litigious; if anything, the atmosphere is just as spark-heavy as it was in the 80s and 90s. Abandoning the existing OGL in such an environment so stridently feels... at the absolute best, recklessly cavalier. Is Hasbro really ready to face potential legal challenges again? Are they going to try and regulate what gets posted outside of
D&D Beyond and the DM's Guild in a way that TSR once tried to?
Are we, potentially, facing a scenario of Cocks v. Internet?
That question aside, of course, there's also the fact that entities and concepts that have been available to us for twenty years might now go back under a much heavier sort of IP protection. The current OGL 1.2 proposal is already levying heavy restrictions on what a VTT can show, including magic missile as a now-infamous example; but after twenty years of vrocks, ghaeles and annis hags being available in the form they are, what will it mean for us to simply lose access to them? A very great many of you reading this message have grown up entirely in the shadow of the
D&D OGL; the creatures and concepts within have been available for people to use for as long as you've been
alive. Is losing that...okay? At what point does something basically-freely-available become more than just the property of one corporate entity?
Justin Alexander is referring to it as "
an act of cultural vandalism", which is still a hair strong for me personally, but I understand where he's coming from. From their time in D&D and being experienced through that lens, through the length of the OGL and being woven into so much of the fabric of the tabletop experience even outside of the specific
D&D wheelhouse, the SRD's content has become a part of the wider fantasy culture. The
D&D chromatics are very much a standard for Fantasy Dragons now, whether that be a good or bad thing in one's eyes. The devils and demons are often what people think of when they think of fantasy representations of those beings. The idea of tieflings crops up all over the place now. All of this is as much part of a shared vernacular as armor class or hit points are. And now we stand to lose it.
So if that's important to you, make sure you speak up. Not just in surveys, but here, on Twitter, in Discords, at your tables. Hell, drop letters in WotC's mailbox. Let them know you want the spirit and content of the old SRDs preserved.
Because we stand to lose a lot in getting back on the Wild Ride.
www.dndbeyond.com
www.reddit.com
www.chick.com
www.humblebundle.com
