On Safe Harbours, Shareholder Obligations, and Fey Contracts

Precedence, Common Rules, and Licenses

Admit the shame of who you are,
your crooked traits are now laid bare
and so are those deceits you cloak
when spending time with decent folk.
And if you deal in dirty business
check it’s done without a witness;
treachery becomes disgrace
when played out in a public place.
, The Owl and the Nightingale (translated by Simon Armitage)

The Open Game License (OGL 📖) is a fey contract; fated and doomed. A careful read hints at irrevocable, yet that word is absent, instead allowing authorized to stand in it’s stead.

Hasbro, once eager to catch all the Pokemon, sealed the contractual fate of the OGL when it acquired Wizards of the Coast (WotC 📖). As a publicly traded company Hasbro has a legal obligation to deliver shareholder value (in the form of dividends and profits).

Wed to that obligation, Hasbro brought folks trained up in the Embrace, Extend, Extinguish strategy of Microsoft. Hasbro Appoints New Leadership for Wizards of the Coast | Hasbro, Inc.

In gaming there is one significant precedence: TSR, Inc. v. Mayfair Games, Inc., 1993 WL 79272 (N.D. Ill.).

The gist of that case is that the specific words used to describe the mechanics may be protected by copyright, however the underlying mechanics are not. The mechanics could be Trademarked or Patented, like Magic the Gathering’s “Tap” concept/symbol.

And legal precedence is a dangerous thing…as once it is established folks have a better sense of the field of play. So long as it is ambiguous, might money makes right legality.

If the copyright holder of the OGL (e.g. WotC) can de-authorize and by extension revoke the license, they can choose to instead threaten folks with the possibility of doing so.

The leak of OGL likely came around a similar time that agents of WotC may have been attempting to meet under cloak of Non-Disclosure Agreements (NDAs 📖) to ensnare smaller publishers of Dungeons and Dragons: Fifth Edition (5E 📖) material. Hasbro asked Morrus (ENWorld) to meet just before Christmas. He declined. He thinks he would have been pressured to sign OGL 1.1 during that meeting. : dndnext

Why might they do this? To create a group of folks with a financial interest in jumping to this new raft. In other words, to fracture and splinter potential resistance to revocation de-authorization attempts. They may also want to have some visible flag bearers as well. And the symbolism of ENWorld jumping would be a feather in the cap. ENWorld’s early days involved news of the release of Dungeons and Dragons: Third Edition (3E 📖).

Did “Wizards of the Bro” do this? I’m sure some folks know that answer, but for me, it’s speculation.

But now various publishers, whom have long played in the safe harbour with each other, have had time to establish their plans and contingencies; and I’m wishing them luck and will be bringing my support.

Three Things in Play

I think there are three critical things in play:

  • Precedence
  • Common Rules
  • License


As I mentioned precedence is dangerous. I want nothing more than for WotC to have a legal judgment issued that swats down it’s revocation attempt.

But I don’t expect it to get there, because in this case, WotC is perhaps better suited at posturing and threatening other publishers while also taking their ball and going home; that is to move Dungeons and Dragons (D&D 📖) to another license.

The idea being that D&D is the prize in all of this. The thing we can’t live hobby without.

But think about Kleenex versus facial tissue. Or Chapstick versus lip balm. Or Xerox versus photocopy. Or to Google something instead of searching. Names can become a stand-in for the general term.

In years past, when I talk about role-playing games, I’d say “Yeah, I play Dungeons and Dragons.” But that was short-hand, in which if the person remained curious I could further expound.

If we don’t establish precedence, we’ll need to have common rules. So very many systems implement mechanics similar to Dungeons and Dragons.

Common Rules

The common rules exist, but are licensed under the OGL. This will require rework.

I would argue that most important in all of this opening of rules has been connecting, via the OGL, back to the roots of D&D. This gave the ability to walk a timeline, to find your place amongst the ubiquitous rules set and enjoy the hobby.

It created space to innovate along many different vectors, all of which radiated from a somewhat common chassis.

But don’t conflate common rules as that I want only one rules system. No, I want many systems. But common rules serve a purpose of translation. Folks who are curious about the hobby can join in and find the center of gravity and get to playing.

I suspect that we’ll see Basic Fantasy emerge, as my understanding is that they specifically chose to include Open Game Content (OGC 📖) material during it’s original writing.

We collectively have the blueprints of mechanics and can project them onto a “basic” chassis.

Open License

We see Paizo announcing a system-neutral open RPG license. That is a critical step to foster conditions similar to the OGL safe-harbour years of to . Because of legal precedence this isn’t strictly necessary.

The simplicity of the OGL, something that fit on one page, was concise, easy to read, and appeared easy to abide by.

The license made space for communities of craft to publish. And again, while not strictly necessary, it’s helpful to understand the legal neighborhood you’re playing in.

I suspect that for things to be viable across the spectrum of players, we can expect to see the concept of Product Identity (PI 📖) and OGC sustained. That is what I claim as mine and what I irrevocably share.


To not lose all of what is in the safe-harbour, the key victory is one of precedence. Favorable precedence allows for continuity of past works with those in the future which will almost certainly not be released under the OGL 1.0a.

And “Wizards of the Bro” wants to ensure that Dungeons and Dragons is where folks enter (and stay) in the role-playing hobby. So shattering continuity seems like a viable strategy.

Failing favorable precedence, common rules and license provide a pathway forward. It is what worked in the past, and provides a viable pattern to move forward; given the constraints of copyright law.