After reading the initial post and a few of the subsequent exchanges, can I make an observation?
When you structure your argument as: "I assert that everyone who disagrees with me is a bad person and that's the only reason!"... You probably shouldn't be surprised when your assertion receives push-back... aggressive push back at that.
The majority always wins in the end. The majority just has more cash as consumers.
WotC can make any ruling they want but the customer who spends the most will always get what they want in the end. Someone will provide it eventually. If not WotC then someone else.
The vocal minority while loud can not out spend the majority. Companies will always go to the cash in the end. I have faith in WotC when they go for the cash. They will eventually give the majority what they want.
Since you guys are generally against Wizards being able to protect their players, their IP, their employees, or anything else...let me ask you this. As a hypothetical.
Say you all got your wish, and 1.0a stayed authorized alongside 1.2 BUT!!! This came with a public, widely dispersed statement from Wizards of the Coast to the effect of:
"We are not de-authorizing OGL 1.0a, due to concerns raised by our community. However, going forward Wizards of the Coast intends to operate under OGL 1.2 where and as possible. We publicly disavow OGL 1.0a and all people and products associated with it. No OGL 1.0a product is considered to carry the endorsement or support of Wizards, no OGL 1.0a product will receive support of any kind from Wizards, material or otherwise. Businesses operating under OGL 1.0a will receive no support or offers of further business with Wizards of the Coast under that license and hereby, by using OGL 1.0a, publicly acknowledge and agree to indemnify Wizards against all negative results from their products and will agree not to contest Wizards' assertion that third-party products are uncontrolled and unable to be policed. OGL 1.0a products are considered 'At Own Risk' for both the product seller and the product purchaser, and we hereby reserve every possible right to throw your nasty ass to the ****ing sharks and torpedo your business when you inevitably **** up and drag us into your bullshit."
Effectively, you can keep the dumb thing, but it becomes an orphan child Pariah License that is very publicly acknowledged as an inferior and unstable license unable to be associated with legitimate business or legitimate interests. It becomes the 'license' of pirates, hacks, nincomprods, extremists, evil hateful bigots, NFT grifters, and all the other bad actors y'all are championing who try to use D&D and the SRD for Evil, and when they inevitably do something awful Wizards is allowed to bring their full legal might down upon the offender without any censure or kickback from legal experts or The Community. Wizards would be allowed to periodically remind The Community that 1.0a is effectively a rogue license they do not endorse or operate anymore and anyone using it is doing so to the direct and immediate detriment of D&D.
Would that work for you folks? Getting to keep your license under the conditions that it becomes the catchbin for evil hateful untrustworthy bullshit nobody should be able to peddle in the first place?
Obviously Wizards isn't going to do this, because even such announcements would leave them vulnerable to having their IP destroyed by bad actors using D&D to peddle their hatred. But I'm curious what people who think 1.0a should be left in place even if 1.2 goes live think, since that stance is utter madness and completely misses the entire point of this whole fiasco.
You mean the thing WotC should have done from the start but couldn't because the shareholder don't want another 4e? Yeah, that would be absolutely fine with me but WotC can't allow it under their current business plan. And the legal system won't allow them to de-authorize OGL1.0(a) Because doing so is illegal per anti-trust laws. Hmmm.. a de facto industry standard: Let's call it SAE certification instead of OGL, being modified to say that only GM can certify mechanics and only GM licensed parts can be used to repair vehicles. That's illegal anti-competitive action. WotC can be the 300 lb gorilla all it wants, the DoJ is a White Whale in comparison.
OK, also since you are intent on pressing the Morality Police angle. The community already does that better than WotC can.
The majority always wins in the end. The majority just has more cash as consumers.
WotC can make any ruling they want but the customer who spends the most will always get what they want in the end. Someone will provide it eventually. If not WotC then someone else.
The vocal minority while loud can not out spend the majority. Companies will always go to the cash in the end. I have faith in WotC when they go for the cash. They will eventually give the majority what they want.
Queue "OGL 1.0(a) legal defense fund" on GoFundMe... Try us? Find out who is the majority... And then let the Justice Department step in besides
Wotc is clearly trying shady shit with 1.2 since many of thing things in it they can change whenever they want, They can say can brand 1.0a a consume at your own risk content but at the end of the day its the community who will decide whats at their own risk, (as for hateful content smoke and mirrors, its a completely non factor if someone wants to make something like ETCrpg they will stil do it, no 1.0a or 1.2 needed and the only reason its there is so they can deem whatever they want hateful content). Also whats with trying to defend the poor corporation greed seriosly ....
I'm less worried about how the old OGL could encourage racist creators to publish A Guide to Adding Racism to the World's Most Popular RPG.
I'm more worried about how the new OGL could discourage LGBTQ creators from publishing A Guide to Queering the World's Most Popular TTRPG or how the new OGL could discourage BIPOC creators from publishing A Guide to Decolonizing the World's Most Popular TTRPG because the new OGL seems like a worse deal than the old OGL, and LGBTQ creators and BIPOC creators won't want to publish under it.
I do enjoy how all the responses to this since I came home and checked was "we should be allowed the chance to supported bigoted content however much we like and if you feel like being offended by it you should just stop playing D&D."
Well. "Enjoy."
Jus' sayin', y'all. 1.0a is dead. Wizards wouldn't have pulled this shit if their lawyers hadn't told them they have firm legal ground to stand on. And if you force them to stick to 1.0a, somehow? Then they'll just release SRD 5.2 under 1.2 instead, abandon 5e entirely, and you lot will have pissed away your only chance to do something positive about it by groaning and moaning about 1.0a this and ORC that and WIZARDS MUST DIE the other thing. And all the "D&D belongs to US, not Wizards, we don't need them but they need us!" folks are gonna discover real damn quick that no, actually they kinda do need someone to keep the game going. No bedrock to build on? No third-party products. And no, ****ing Pathfinder is not 'bedrock to build on'. That game is a cluster with a few neat ideas bogged down by a mountain of 3.5 buggery that nobody needs anymore, it is never going to be the Gateway to RPGs all the WMD yaybos keep claiming it is.
But hey, why let that stop us, right? We gotta save Horrible Stuff Press and their ability to sell hardback hate crimes, and anyone who thinks all this rioting is overblown and unproductive is a communist! Gotta stop them commies from ruining D&D with their wanting people to play shit, right?
Right?
Saying that 1.0a is dead does not make it so, and while their lawyers might believe they have the standing to do so. 23 years a serious period of precedence to overturn. If it goes to court someone is going to ask, "why now?" or "Why did you not address VT's when Fantasy Ground, D20 pro etc. When they first surfaced.?" they are not going to have a good answer. or at least not one that is going to overcome the precedence set by their behavior... your hatred of 3.5/Pathfinder is ridiculous the game is what you and your players make it.... If you want to lump with the WMD people go right ahead i am not going to lose any sleep over, it.
On the subject of hate-based material the new license is not the inviable shield they are making out to be. it a defense that is subjective to the person who is enforcing it and currently i don't trust WotC to be as moral as you might think they are.
as far as games to play Give Becmi a try or Torg , Cyberpunk, Shadowrun or go really out there and find Rolemaster
As someone actively learning PF2e It is obvious that it is not pathfinder 1/3.5. I’m no expert on it, but after about 2 weeks I can say pretty confidently that anyone who didn’t like the first version should take a look with fresh eyes.
What precedent? Is there a Court case over 1.0 already?
as far as i am aware there is no legal precedent
Its never been tested, in fact, the general law that states that game mechanics can't be protected has never actually been tested in court. When it comes to the entire licensing concepts of RPG's, there is quite literally no legal precedent of any kind. Most court cases we have had, have been settled out of court, behind privacy contracts so there is no information on which to base anything.
What precedent? Is there a Court case over 1.0 already?
as far as i am aware there is no legal precedent
In many countries if an agreement has stood for a long period of time, and people have relied on it for a long time. It becomes very very hard to cancel. Especially if there isn’t an express cancel option in it, and there is evidence the intent of the agreement was for it to be permanent.
As someone actively learning PF2e It is obvious that it is not pathfinder 1/3.5. I’m no expert on it, but after about 2 weeks I can say pretty confidently that anyone who didn’t like the first version should take a look with fresh eyes.
PF2 is an evolution of 3.5/1st edition Pathfinder, but that evolution is really a total re-design. Pathfinder 2nd edition has virtually nothing to do with D&D at all and does not use any form of D&D-based licensing to my knowledge. It is a stand-alone product no different than say Star Wars Edge of the Empire. Wizards of the Coast has no claim of any kind of PF2.
So, just to chip in on the "WotC wants 6f to gag everyone who says something they don't like" point.
Read the frickin' terms of YouTube, Twitch, any art hosting site, etc. The idea that the owner of the brand you are publishing under is the final adjudicator of what content is acceptable is not some new invention; it's a very boilerplate term for anyone hosting/enabling third party produced content. Granted, those examples do typically have an appeals process, but that's because they also rely on user reporting to bring content to their attention. The appeals process is a check on report trolling, and ultimately the company is still the one who decides if the content was acceptable or not. Thus, given that in this instance nothing will occur until WotC itself has reviewed the content, an appeals process would serve no practical purpose.
And, again, this is not about them attempting to suppress your right to "free speech"; it is about them not allowing you to use the tacit support from a brand/company that a license gives to tie them to speech they do not want to be tied to. If they try to use this as a bludgeon to suppress products that are "too successful", your super-cool and definitely not edge-lord "My Uber Grimdark Guide to a Setting Where Everyone Is Awful to One Another" setting/adventure book, or "The Rainbow Guild's Guide to Pride In the World's Most Popular Roleplaying Game" (please note all title names are deliberately done in facetious prose as a part of my individual artistic expression and free speech), they would simply drive the community away from the brand. There is literally no good, profitable reason for them to break out the clause on those. They want it so if someone like the Krispy Kreme Kravers or good ol' EG try to use the brand as a vehicle for spreading their latest manifesto, WotC can promptly and definitively cut ties. Because yes, as a subsidiary of a large, publicly traded company, they have a fiduciary duty to manage their public image, and in case the past few weeks haven't made it abundantly obvious, flashy clickbait titles about a company doing or involved with something naughty spread like wildfire. They could not do this under 1.0a, and the proof that there are bad actors looking to do just that is currently in court because WotC got lucky and they managed to miss the obvious low-hanging fruit, which has since had a great big neon arrow put up pointing right at it.
I would only ever accept 1.2 if it was under a publishing agreement and I'm not gonna end up financially burdened if WotC decides what I've put out is 'hateful'. There's no definition in the OGL as to what is hateful; you could add Fluffy Bunnies as a playable race and WotC could say it's hateful because you didn't include non-fluffy bunnies. Additionally, there is already a clause against unlawful materiel published in anything under 1.2 so its presence really does strike me as a "we can nuke you from orbit arbitrarily" clause.
You say a lot about how 1.0 will be a pariah license but at the end of the day I don't think anyone is really fussed. This publishing stuff won't impact anyone at the table. If you join a table and the DM reveals that you'll be playing a homebrewed German Chancellor Simulator I don't think "did he write that under ogl1.0a or ogl1.2?" is going to be at the top of your mind.
Since you guys are generally against Wizards being able to protect their players, their IP, their employees, or anything else...let me ask you this. As a hypothetical.
Say you all got your wish, and 1.0a stayed authorized alongside 1.2 BUT!!! This came with a public, widely dispersed statement from Wizards of the Coast to the effect of:
"We are not de-authorizing OGL 1.0a, due to concerns raised by our community. However, going forward Wizards of the Coast intends to operate under OGL 1.2 where and as possible. We publicly disavow OGL 1.0a and all people and products associated with it. No OGL 1.0a product is considered to carry the endorsement or support of Wizards, no OGL 1.0a product will receive support of any kind from Wizards, material or otherwise. Businesses operating under OGL 1.0a will receive no support or offers of further business with Wizards of the Coast under that license and hereby, by using OGL 1.0a, publicly acknowledge and agree to indemnify Wizards against all negative results from their products and will agree not to contest Wizards' assertion that third-party products are uncontrolled and unable to be policed. OGL 1.0a products are considered 'At Own Risk' for both the product seller and the product purchaser, and we hereby reserve every possible right to throw your nasty ass to the ******* sharks and torpedo your business when you inevitably **** up and drag us into your bullshit."
Effectively, you can keep the dumb thing, but it becomes an orphan child Pariah License that is very publicly acknowledged as an inferior and unstable license unable to be associated with legitimate business or legitimate interests. It becomes the 'license' of pirates, hacks, nincomprods, extremists, evil hateful bigots, NFT grifters, and all the other bad actors y'all are championing who try to use D&D and the SRD for Evil, and when they inevitably do something awful Wizards is allowed to bring their full legal might down upon the offender without any censure or kickback from legal experts or The Community. Wizards would be allowed to periodically remind The Community that 1.0a is effectively a rogue license they do not endorse or operate anymore and anyone using it is doing so to the direct and immediate detriment of D&D.
Would that work for you folks? Getting to keep your license under the conditions that it becomes the catchbin for evil hateful untrustworthy bullshit nobody should be able to peddle in the first place?
Obviously Wizards isn't going to do this, because even such announcements would leave them vulnerable to having their IP destroyed by bad actors using D&D to peddle their hatred. But I'm curious what people who think 1.0a should be left in place even if 1.2 goes live think, since that stance is utter madness and completely misses the entire point of this whole fiasco.
The question is moot. It not longer suits Wizards' purpose to have the current SRD remain open, even if it only contains the 5e rule set. By their own admission, 6e will be very similar to 5e, and they certainly do not want anyone to continue publishing 5e content once the new edition is out as it will be easily converted.
Rollback Post to RevisionRollBack
“With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied, chains us all irrevocably." - Starfleet Admiral Aaron Satie
However, the fact remains that unlike "Tasha" and "Fizban", things such as "cloudkill" and "owlbear" are not unique proper nouns. As such, they are not subject to copyright, and are not IP.
Do you actually think that only proper nouns can be IP?
Actually, my knowledge of all the rules and legalities of IP was incomplete and a but hazy, so I did some research last night. What I found was quite illuminating.
There are 4 types of Intellectual Property - patents, trade secrets, trademarks, and copyright. Patents protect inventions; trade secrets protect secret devices and processes used in the manufacture of goods; trademarks (or servicemarks) protect a word, phrase, image, or logo that directly identifies the source of a particular product (or service) within the industry in which they do business; finally, copyright protects unique expression (as one website put it, "original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture").
When talking about the matter at hand, it appears only trademark and copyright are possibly relevant. The spells, monsters, classes, or races (ancestries) that Wizards of the Coast might wish to claim as their IP are not inventions, nor are they secrets used in manufacturing.
Copyright protects a particular unique expression of something, but it does not protect facts, ideas, concepts, themes, plots, names(!), single words or short word combinations, or the rules/mechanics of a game. Those things considered public domain, and when they overlap with expression, public interest always trumps copyright. To clarify, copyright protection applies to text only if it's of significant size (about a paragraph or more). It prevents that text from being copied, even if it is altered using synonyms and rearranging the order of words in sentences. Thus, to avoid infringement, a copied work must not be recognisable as derivative from the original.
As far as DnD goes, much (but not all) of what constitutes spells, monsters, classes or races (ancestries) are themselves game mechanics, and are thus not copyright protected. Now any pure flavour or lore text in the published descriptions of these things does fall under copyright - if it is in fact both original and it meets the requirement of being of significant size (i.e. about a paragraph) - but otherwise they are public domain. Wizards or one such as yourself might argue that the SRD (or even the OGL itself, but let's not go there now), for example, is still copyright protected as a unique expression of the rules set, and thus to legally use them without permission, another party would have to change them to such a degree that they are not recognisable as the same document.
However, here is Wizards' legal catch 22: the fact that these are also rules of the game means that copyright is not applicable regardless. This is because once any significant descriptive flavour (lore) is removed, the rules of the game are precise and interdependent, and to force a significant re-expression different enough to satisfy copyright requirements means that the mechanics themselves would be necessarily and unavoidably altered. As public domain supersedes copyright when there is a conflict between them, then they aren't covered by copyright. Case closed.
Unique fictional characters, places, and stories are a different matter entirely, of course. Someone can't publish works containing the fictional character of Tasha, or the Forgotten Realms setting, for example. However, the names themselves are not copyright. This is where trademark comes in. Forgotten Realms is a trademark of WotC because it is a product, which means you cannot publish a novel or game that uses a the fictional fantasy setting called Forgotten Realms without permission from Wizards. (On the other hand, GM could make a new car and call it Forgotten Realms without permission, because Wizards in not in the car-making business.) The name Tasha itself is not a trademark, however, because it is not a brand, product, or service. Tasha's Cauldron of Everything is a absolutely trademarked product, but not Tasha herself. Thus, people are even free to use the name Tasha as long as they do not in a way that clearly identifies her as the unique character Tasha that is Wizard's copyright.
Now to the actual question. Owlbear and cloudkill are not products, services, or brands that identify Wizards of the Coast. Nor are they unique works of fiction except for the parts of their descriptions in the rules that are purely lore or flavour. So tell me then please, exactly what makes these things "clearly IP" belonging to Wizards of the Coast? What have I missed here?
“With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied, chains us all irrevocably." - Starfleet Admiral Aaron Satie
So tell me then please, exactly what makes these things "clearly IP" belonging to Wizards of the Coast? What have I missed here?
I'm not the one who said they were "clearly" anything, that's between you and Caerwyn. I'm actually saying it ISN'T clear, and that if you or any other 3PP want to roll the dice on that, go right ahead.
Now to the actual question. Owlbear and cloudkill are not products, services, or brands that identify Wizards of the Coast. Nor are they unique works of fiction except for the parts of their descriptions in the rules that are purely lore or flavour. So tell me then please, exactly what makes these things "clearly IP" belonging to Wizards of the Coast? What have I missed here?
Really easy on Cloudkill--the spell name is unique to D&D and things D&D licensed. You will not find it in the Oxford English Dictionary or any other dictionary; you will not find it in works of fiction predating D&D. It might be a singular word, but it is a singular word subject to certain protections and thus is Wizards' IP.
Now, I could say that I am an attorney and that I have some experience with copyright. I could also say that I talked about this with another attorney yesterday who is an expert in copyright, and she also said that Cloudkill would be subject to protections (in between laughter and vicious mockery at trying to actually engage with people on the forums).
But I don't have to--this game's history actually provides an exact example of when Gygax tried to use someone else's singular copyrighted word and was told in no uncertain terms he could not. "Ent" as applied to treefolk, "Balrog" as a demon, etc., are subject to copyright protections by the Tolkien Estate, who came down hard on Gygax, who used both words in the first publication. Gygax had to abandon the word Ent and Balrog and switch over to treant and Balor instead.
Now, the mechanics of Cloudkill are not subject to protections--you could do exactly what Gygax did and have a spell called "Noxious Cloud" and use the same exact mechanics. You just can't call it Cloudkill.
After reading the initial post and a few of the subsequent exchanges, can I make an observation?
When you structure your argument as: "I assert that everyone who disagrees with me is a bad person and that's the only reason!"... You probably shouldn't be surprised when your assertion receives push-back... aggressive push back at that.
The majority always wins in the end.
The majority just has more cash as consumers.
WotC can make any ruling they want but the customer who spends the most will always get what they want in the end. Someone will provide it eventually. If not WotC then someone else.
The vocal minority while loud can not out spend the majority. Companies will always go to the cash in the end.
I have faith in WotC when they go for the cash. They will eventually give the majority what they want.
You mean the thing WotC should have done from the start but couldn't because the shareholder don't want another 4e? Yeah, that would be absolutely fine with me but WotC can't allow it under their current business plan. And the legal system won't allow them to de-authorize OGL1.0(a) Because doing so is illegal per anti-trust laws. Hmmm.. a de facto industry standard: Let's call it SAE certification instead of OGL, being modified to say that only GM can certify mechanics and only GM licensed parts can be used to repair vehicles. That's illegal anti-competitive action. WotC can be the 300 lb gorilla all it wants, the DoJ is a White Whale in comparison.
OK, also since you are intent on pressing the Morality Police angle. The community already does that better than WotC can.
Queue "OGL 1.0(a) legal defense fund" on GoFundMe... Try us? Find out who is the majority... And then let the Justice Department step in besides
Wotc is clearly trying shady shit with 1.2 since many of thing things in it they can change whenever they want, They can say can brand 1.0a a consume at your own risk content but at the end of the day its the community who will decide whats at their own risk, (as for hateful content smoke and mirrors, its a completely non factor if someone wants to make something like ETCrpg they will stil do it, no 1.0a or 1.2 needed and the only reason its there is so they can deem whatever they want hateful content). Also whats with trying to defend the poor corporation greed seriosly ....
It is NOT WotC 's job to protect its players. Its job is to protect its content and thus its financial position.
Its your own job to protect yourself. If you find something offensive then quit using it. Period.
I'm less worried about how the old OGL could encourage racist creators to publish A Guide to Adding Racism to the World's Most Popular RPG.
I'm more worried about how the new OGL could discourage LGBTQ creators from publishing A Guide to Queering the World's Most Popular TTRPG or how the new OGL could discourage BIPOC creators from publishing A Guide to Decolonizing the World's Most Popular TTRPG because the new OGL seems like a worse deal than the old OGL, and LGBTQ creators and BIPOC creators won't want to publish under it.
Saying that 1.0a is dead does not make it so, and while their lawyers might believe they have the standing to do so. 23 years a serious period of precedence to overturn. If it goes to court someone is going to ask, "why now?" or "Why did you not address VT's when Fantasy Ground, D20 pro etc. When they first surfaced.?" they are not going to have a good answer. or at least not one that is going to overcome the precedence set by their behavior... your hatred of 3.5/Pathfinder is ridiculous the game is what you and your players make it.... If you want to lump with the WMD people go right ahead i am not going to lose any sleep over, it.
On the subject of hate-based material the new license is not the inviable shield they are making out to be. it a defense that is subjective to the person who is enforcing it and currently i don't trust WotC to be as moral as you might think they are.
as far as games to play Give Becmi a try or Torg , Cyberpunk, Shadowrun or go really out there and find Rolemaster
As someone actively learning PF2e It is obvious that it is not pathfinder 1/3.5. I’m no expert on it, but after about 2 weeks I can say pretty confidently that anyone who didn’t like the first version should take a look with fresh eyes.
What precedent? Is there a Court case over 1.0 already?
as far as i am aware there is no legal precedent
Its never been tested, in fact, the general law that states that game mechanics can't be protected has never actually been tested in court. When it comes to the entire licensing concepts of RPG's, there is quite literally no legal precedent of any kind. Most court cases we have had, have been settled out of court, behind privacy contracts so there is no information on which to base anything.
In many countries if an agreement has stood for a long period of time, and people have relied on it for a long time. It becomes very very hard to cancel. Especially if there isn’t an express cancel option in it, and there is evidence the intent of the agreement was for it to be permanent.
that’s the legal precedent there.
PF2 is an evolution of 3.5/1st edition Pathfinder, but that evolution is really a total re-design. Pathfinder 2nd edition has virtually nothing to do with D&D at all and does not use any form of D&D-based licensing to my knowledge. It is a stand-alone product no different than say Star Wars Edge of the Empire. Wizards of the Coast has no claim of any kind of PF2.
So, just to chip in on the "WotC wants 6f to gag everyone who says something they don't like" point.
Read the frickin' terms of YouTube, Twitch, any art hosting site, etc. The idea that the owner of the brand you are publishing under is the final adjudicator of what content is acceptable is not some new invention; it's a very boilerplate term for anyone hosting/enabling third party produced content. Granted, those examples do typically have an appeals process, but that's because they also rely on user reporting to bring content to their attention. The appeals process is a check on report trolling, and ultimately the company is still the one who decides if the content was acceptable or not. Thus, given that in this instance nothing will occur until WotC itself has reviewed the content, an appeals process would serve no practical purpose.
And, again, this is not about them attempting to suppress your right to "free speech"; it is about them not allowing you to use the tacit support from a brand/company that a license gives to tie them to speech they do not want to be tied to. If they try to use this as a bludgeon to suppress products that are "too successful", your super-cool and definitely not edge-lord "My Uber Grimdark Guide to a Setting Where Everyone Is Awful to One Another" setting/adventure book, or "The Rainbow Guild's Guide to Pride In the World's Most Popular Roleplaying Game" (please note all title names are deliberately done in facetious prose as a part of my individual artistic expression and free speech), they would simply drive the community away from the brand. There is literally no good, profitable reason for them to break out the clause on those. They want it so if someone like the Krispy Kreme Kravers or good ol' EG try to use the brand as a vehicle for spreading their latest manifesto, WotC can promptly and definitively cut ties. Because yes, as a subsidiary of a large, publicly traded company, they have a fiduciary duty to manage their public image, and in case the past few weeks haven't made it abundantly obvious, flashy clickbait titles about a company doing or involved with something naughty spread like wildfire. They could not do this under 1.0a, and the proof that there are bad actors looking to do just that is currently in court because WotC got lucky and they managed to miss the obvious low-hanging fruit, which has since had a great big neon arrow put up pointing right at it.
I would only ever accept 1.2 if it was under a publishing agreement and I'm not gonna end up financially burdened if WotC decides what I've put out is 'hateful'. There's no definition in the OGL as to what is hateful; you could add Fluffy Bunnies as a playable race and WotC could say it's hateful because you didn't include non-fluffy bunnies. Additionally, there is already a clause against unlawful materiel published in anything under 1.2 so its presence really does strike me as a "we can nuke you from orbit arbitrarily" clause.
You say a lot about how 1.0 will be a pariah license but at the end of the day I don't think anyone is really fussed. This publishing stuff won't impact anyone at the table. If you join a table and the DM reveals that you'll be playing a homebrewed German Chancellor Simulator I don't think "did he write that under ogl1.0a or ogl1.2?" is going to be at the top of your mind.
The question is moot. It not longer suits Wizards' purpose to have the current SRD remain open, even if it only contains the 5e rule set. By their own admission, 6e will be very similar to 5e, and they certainly do not want anyone to continue publishing 5e content once the new edition is out as it will be easily converted.
“With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied, chains us all irrevocably." - Starfleet Admiral Aaron SatieActually, my knowledge of all the rules and legalities of IP was incomplete and a but hazy, so I did some research last night. What I found was quite illuminating.
There are 4 types of Intellectual Property - patents, trade secrets, trademarks, and copyright. Patents protect inventions; trade secrets protect secret devices and processes used in the manufacture of goods; trademarks (or servicemarks) protect a word, phrase, image, or logo that directly identifies the source of a particular product (or service) within the industry in which they do business; finally, copyright protects unique expression (as one website put it, "original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture").
When talking about the matter at hand, it appears only trademark and copyright are possibly relevant. The spells, monsters, classes, or races (ancestries) that Wizards of the Coast might wish to claim as their IP are not inventions, nor are they secrets used in manufacturing.
Copyright protects a particular unique expression of something, but it does not protect facts, ideas, concepts, themes, plots, names(!), single words or short word combinations, or the rules/mechanics of a game. Those things considered public domain, and when they overlap with expression, public interest always trumps copyright. To clarify, copyright protection applies to text only if it's of significant size (about a paragraph or more). It prevents that text from being copied, even if it is altered using synonyms and rearranging the order of words in sentences. Thus, to avoid infringement, a copied work must not be recognisable as derivative from the original.
As far as DnD goes, much (but not all) of what constitutes spells, monsters, classes or races (ancestries) are themselves game mechanics, and are thus not copyright protected. Now any pure flavour or lore text in the published descriptions of these things does fall under copyright - if it is in fact both original and it meets the requirement of being of significant size (i.e. about a paragraph) - but otherwise they are public domain. Wizards or one such as yourself might argue that the SRD (or even the OGL itself, but let's not go there now), for example, is still copyright protected as a unique expression of the rules set, and thus to legally use them without permission, another party would have to change them to such a degree that they are not recognisable as the same document.
However, here is Wizards' legal catch 22: the fact that these are also rules of the game means that copyright is not applicable regardless. This is because once any significant descriptive flavour (lore) is removed, the rules of the game are precise and interdependent, and to force a significant re-expression different enough to satisfy copyright requirements means that the mechanics themselves would be necessarily and unavoidably altered. As public domain supersedes copyright when there is a conflict between them, then they aren't covered by copyright. Case closed.
Unique fictional characters, places, and stories are a different matter entirely, of course. Someone can't publish works containing the fictional character of Tasha, or the Forgotten Realms setting, for example. However, the names themselves are not copyright. This is where trademark comes in. Forgotten Realms is a trademark of WotC because it is a product, which means you cannot publish a novel or game that uses a the fictional fantasy setting called Forgotten Realms without permission from Wizards. (On the other hand, GM could make a new car and call it Forgotten Realms without permission, because Wizards in not in the car-making business.) The name Tasha itself is not a trademark, however, because it is not a brand, product, or service. Tasha's Cauldron of Everything is a absolutely trademarked product, but not Tasha herself. Thus, people are even free to use the name Tasha as long as they do not in a way that clearly identifies her as the unique character Tasha that is Wizard's copyright.
Now to the actual question. Owlbear and cloudkill are not products, services, or brands that identify Wizards of the Coast. Nor are they unique works of fiction except for the parts of their descriptions in the rules that are purely lore or flavour. So tell me then please, exactly what makes these things "clearly IP" belonging to Wizards of the Coast? What have I missed here?
“With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied, chains us all irrevocably." - Starfleet Admiral Aaron SatieI'm not the one who said they were "clearly" anything, that's between you and Caerwyn. I'm actually saying it ISN'T clear, and that if you or any other 3PP want to roll the dice on that, go right ahead.
Really easy on Cloudkill--the spell name is unique to D&D and things D&D licensed. You will not find it in the Oxford English Dictionary or any other dictionary; you will not find it in works of fiction predating D&D. It might be a singular word, but it is a singular word subject to certain protections and thus is Wizards' IP.
Now, I could say that I am an attorney and that I have some experience with copyright. I could also say that I talked about this with another attorney yesterday who is an expert in copyright, and she also said that Cloudkill would be subject to protections (in between laughter and vicious mockery at trying to actually engage with people on the forums).
But I don't have to--this game's history actually provides an exact example of when Gygax tried to use someone else's singular copyrighted word and was told in no uncertain terms he could not. "Ent" as applied to treefolk, "Balrog" as a demon, etc., are subject to copyright protections by the Tolkien Estate, who came down hard on Gygax, who used both words in the first publication. Gygax had to abandon the word Ent and Balrog and switch over to treant and Balor instead.
Now, the mechanics of Cloudkill are not subject to protections--you could do exactly what Gygax did and have a spell called "Noxious Cloud" and use the same exact mechanics. You just can't call it Cloudkill.
The OGL is just an attempt to gain control over 3rd party content that does not fall under the trademark and copyright laws already set out.
Those who think it protects any 3rd party content are wrong.