| DavidW |
A few subtleties of OGL 1.2 seem to be being missed in most of the forum discussions and news threads (though I'm sure Paizo's lawyers caught them). I thought it might be worth making them explicit. I'll try to be minimal and factual (and I'll skip the things that have been widely discussed). IANAL.
Creative Commons license
This isn't a concession at all, not even a partial one: it's an attempted land grab. The legal gray area for RPGs is: what counts as game mechanics (which can't be copyrighted) and what counts as creative content (which can). 1.2 offers WotC's own call on this through their distinction between 'mechanics' (which get a CC license) and 'quintessentially DnD' material (which goes under 1.2). This is a pretty aggressive call: on their reading only the core of the d20 system is mechanics, and pretty much everything that fleshes it out - the twelve character classes, the monsters, the spells - is creative content.
Whether that call is correct is for the courts, of course, and no-one really knows what they'd decide. But I see WotC making a fairly clear implied threat of legal action if someone publishes a game using the character class structure, magic missiles, five colors of chromatic dragon, etc etc. (That would catch PF2e, for instance.) And of course Hasbro can afford to lose a lawsuit and walk away, which most other TTRPG companies can't. I think it's at least plausible to see this as a veiled threat to Paizo if they try to publish PF under the ORC.
"No Waiver of Rights"
One thing that's come up in the last few weeks is that 20 years of 3PP relying on an unchallenged interpretation of 1.0a might create some implied rights to that interpretation being honored: if WotC disagreed with that interpretation, why didn't they complain back in the 2000s? This clause(9(c)) looks intended to block that reasoning for 1.2: 'If we fail to exercise any right we have under this license, that failure will not prevent us from exercising that right in the future.'
Combined with the above, that's a fairly heavy hammer for WotC to hold over any 3PP using rules that even arguably overlap with DnD: WotC is saying 'on our interpretation, you are infringing our copyright, and we could decide to sue any time even if we haven't done so thus far'. (Notice that *they* are planning to license the SRD under 1.2, so this covers their intended actions even for a 3PP who hasn't themselves signed it.)
"Entire agreement and disclaimer of reliance"
I haven't seen this discussed at all, but 9(b) says that in using the license you are relying *only* on what's actually in the license. I think this is trying to disclaim (e.g.) anything said in the 2000s about how to interpret the OGL, like that WotC FAQ that people have been quoting, or Ryan Dancey's testimony. In any case it gives some support to people who are worried about WotC making overbroad use of clauses in 1.2. It's not just the online mob who say that verbal assurances from WotC shouldn't be trusted: it's WotC itself.
Less explicit rules on indicating compatibility
1.0a explicitly bans licensees from saying things like 'compatible with Dungeons and Dragons': if you use it, you waive your Fair Use rights to indicate compatibility that way. (Likewise, you waive your rights to say 'better than Dungeons and Dragons'. As I understand it, that was WotC's original approach to brand protection: you can make products compatible with DnD, but you're not allowed to say that they are.
1.2 doesn't do that explicitly, which I find odd. Arguably it's implied by 1(c) but I'd have thought they'd follow 1.0a in making it completely explicit. Possibly that says something about how aggressively they want to lean on their hateful-conduct clause? I honestly don't know.
EDIT: I should have added that, if you read between the lines of various Paizo employees' comments on Twitter and elsewhere, there are reasonably clear hints that PF2e might be going to be tweaked to avoid some of the more explicit re-uses of DnD language.