SmiteWorks OGL 1.2 Discussion
Useful links:
OGL 1.2 Playtest Announcement
Actual OGL 1.2 Draft
Creative Commons License
Disclaimer: I am not a lawyer and this does not constitute legal advice.
OGL 1.2 Thoughts
Creator Product Badges - you may use one of the badges that uses the D&D Ampersand to show compatibility with 1.2. This is a good addition that gives something to the community that did not exist under OGL 1.0a.
Notice of Deauthorization of OGL 1.0a
Anything previously released under OGL 1.0a is okay. After [SOME DATE], no new work can be published under OGL 1.0a.
I think this date should be Jan 1, 2024. This gives time for creators and other publishers to move their work to ORC or another suitable license. My understanding is that most of these products don't actually need the OGL and companies will be able to build stuff that works alongside the Creative Commons License content. They won't include the SRD 5.1.
If I understand it correctly, even if SRD 5.1 has a Dwarf and Elf defined, you can still write your own version of a Dwarf and Elf without being required to use the SRD 5.1. SRD will still probably have 100% stuff that is not actually copyrightable. You just won't be able to copy their exact version of Dwarf and Elf. If the ORC license includes a Dwarf and an Elf, you can simply reference that content instead, or create your own.
Am I missing anything here?
1.ii Our Unlicensed Content
This means that you can't use all their content that is found outside the SRD 5.1 without some other license to do so. Fantasy Grounds and Roll20 pay a lot of money to license that content. It would prohibit other tools from being able to use that freely unless they were able to get a license as well. I think this is actually true already and nothing really changes. It just restates things that are already true.
1.iii Your Content
I think this means that you could include SRD 5.1 content and add your version of a Dwarf or Elf and it would be allowed under the OGL 1.2.
2. LICENSE. They added the term "irrevocable"
This is what we were asking them to add.
3. WHAT YOU OWN.
You own your content. If WOTC comes out with something that is similar, you can still sue them but it can only be for damages. You can't "block" them from producing that content.
I agree with this because lawsuits that prevent production are bad IMO. Let's take a hypothetical case where there is a blatant copy of your awesome work. You sell and distribute this work, having clear ownership of the concepts and ideas. WOTC comes along and copies that work in a very substantial way and makes 10's of millions of dollars off your work. You can sue them for 10's of millions of dollars (or maybe more). You can't shut down their copy, but if they lose in damages, those damages are likely to be higher unless they agree to stop producing that copied work. That looks like a good outcome to me.
6.f No Hateful Content or Conduct
I have concerns about this provision and I think it is unnecessary. Remember that you will now be able to include a badge that appears to link it to D&D's Ampersand, though. Is that enough reason to allow this provision?
The biggest problem I see here is that it gives WOTC sole authority to make that decision and that is a power that could be abused. An independent body that was able to make the determination would be better here, but I doubt that would be easy to set up. I'm very anti-censorship personally. I think the market should be able to decide what is acceptable and what is not, so I will provide feedback that I think this section should be stricken from the license entirely.
Barring that, I think I would push to change the wording so that WOTC can force you to remove any of the allowed badges from your product if they determine that your content is hateful. That would allow them to protect their brand from affiliating with hateful content but would still allow people to publish content without requiring WOTC's approval of their content.
7.a Modification
It only allows them to change the attribution required under Section 5 and the notice provision of Section 9(a). Nothing else is modifiable. Those are acceptable to me.
9.d Severability
I'm not sure about this one. It seems potentially problematic, but I would need a lawyer to weigh in on that.
9.e Governing Law/Jurisdiction/Class Action Waiver
I'm okay with the jurisdiction portion. I don't like the Class Action Waiver. I can see why WOTC would want that, but I don't think that is in the best interest of consumers.
9.g Waiver of Jury Trial
I dislike this section very strongly. Trial by Jury should always be something that is available to either party. I think a jury is more likely to understand common usage of D&D content, VTTs, etc than a judge would. A lot of judges are out of touch.
Virtual Tabletop Policy
WOTC wants to allow VTTs while disallowing video games from using the SRD 5.1 content. Since mechanics are in the creative-commons, I still think this allows people to make video games with their own spin. With OGL 1.2, someone would not be able to create a video game and add the Ampersand badge to their product. I believe they would still be able to use the same mechanics from D&D but use their own interpretation of dwarves, elves, etc., but they wouldn't be able to claim the OGL 1.2 or use its content and badging. They would have to use their own. Lawyers can weigh in on that sort of thing.
My biggest concern is that I think it will be very difficult to construct legal language that clearly distinguishes the difference between a video game and a virtual tabletop. I'm not sure it is possible. I don't like the example of the magic missile and making an animation prohibited. I think that harms the advancement of VTTs and looks anti-competitive with WOTC's upcoming VTT.
I can try to take a stab at how I think this might be written to still allow VTTs while prohibiting video games without a custom license.
Wizards of the Coast is already defined in the document as "Wizards", "us", "we", "our".
My Recommend VTT Policy Language
A Virtual Tabletop (VTT) is defined as software which enables users to play a tabletop RPG game (TTRPG) digitally, or which is primarily built to aid playing a TTRPG. Examples of this would include digital character sheets that automatically calculate values or provide convenient lookups of Licensed Content, as defined in the OGL 1.2. VTTs may include representations of Licensed Content in other digital forms as long as they are permitted by copyright. VTTs may automate and enhance common TTRPG gameplay experiences including but not limited to custom 2D and 3d imagery, animations, lighting, representations of character vision, environmental effects, Fx, sounds, virtual reality experiences, augmented reality experiences, or other technologies that enhance the play experience. VTTs may allow users to input or provide their own content. This policy does not allow for products that are primarily produced as video games and which do not work alongside printed RPG books or digitally printed RPG books (PDFs, ePubs, etc). The determination for what constitutes a video game versus a VTT should not be decided solely by Wizards, but can be brought before a judge or jury for determination. Any such claim will be brought only as a lawsuit for breach of contract, and only for money damages. Wizards expressly agrees that money damages are an adequate remedy for such a breach, and that Wizards will not seek or be entitled to injunctive relief.
Other thoughts on the VTT Policy
I doubt that this document will be made irrevocable and they may reserve the right to modify it at a later time. If so, then I would like to see a provision that states that any change to this policy will be publicly posted in draft form and will allow a 30-day review and response period before it is posted in a non-draft form. Any changes to the public draft will begin a new 30-day review period. Because software development can involve months of work, any change to rules governing usage should allow sufficient time for that work to conclude before new rules go into effect. Any change to the VTT policy should advance the Version # of the policy and VTT releases should be allowed to be published under the rules of the policy that was in effect at the time of release. New policy versions should establish a future effective date that is 12 months from the publish date of that version.