What does the OGL 1.1 drama mean for OpenD6 and the future of Mini Six?

Update 1/9/23:

Regarding the question "Who owns OpenD6?" from a previous post. I've included this edit there as well, but also want to post it here to make sure everyone sees it.

Thanks to everyone who has contacted me or provided guidance concerning ownership of OpenD6. The short answer is that Nocturnal Media is still the owner of WEG/D6/OpenD6. I'm not seeking any more information on the matter but publicly urge the owner to consider releasing OpenD6 under a Creative Commons license (or something similar) in the event that the OGL drama creates ambiguities or ends the current 1.0a license.

Please do not reach out to anyone or send any messages on my behalf. I respect the privacy of all involved and don't want to annoy anyone. I'm happy to receive any news regarding the status of OpenD6 from the owner or anyone authorized to speak for them should they choose to communicate publicly or privately.

It's obvious that until things become official and clear regarding WotC's position, there's no way anyone can definitively say what should be done.

Disclaimer: I'm not a lawyer. Everyone says that in this kind of post, and I mean it. Just take the following as the opinions of a random internet stranger. Nothing here is advice or necessarily objective fact.

Some text from a proposed future version of Wizards of the Coast's Open Gaming License, supposedly version 1.1, has been leaked. Gizmodo wrote an article about it.

The thing about a leak is, who knows if what's proposed will come to pass? I don't, you don't, and no one else does except for the executives at Wizards of the Coast or Hasbro.

But these leaks have the appearance of truth, and they're concerning. We may find out in the coming week because the date January 13th, 2023 is mentioned.

The largest community affected by this are the folks who publish material under the OGL for third and fifth editions of Dungeons and Dragons. Then you have the folks in the OSR who aren't publishing for those editions specifically, but their work leverages the OGL 1.0a. Finally, there is the smallest group of all - folks like myself who rely on the OpenD6 license via OGL 1.0a. I don't know if there are any other non-D&D style games that also rely on it, but it would affect them as well.

The issue is that some language in the partially leaked OGL 1.1 can be interpreted that Wizards of the Coast, who owns the copyright to OGL1.0a, can de-authorize that earlier version.

OGL1.0a is the license that OpenD6 was released under. Without guidance from the current owner of OpenD6, this leaves publishers like me in limbo. I believe that upgrading to the OGL 1.1 is not a remedy for those that rely on OpenD6.

For the OGL 1.1 to be of any use to OpenD6 publishers, the owner of OpenD6 would need to first update the version of the OGL attached to OpenD6 to that version. Our licenses have to match.

If WotC does release 1.1 and deauthorize 1.0a (which appears to be coming by Friday, January 13th of next week), then OpenD6 looks to me like it will also become deauthorized, the byproduct of (surely) unintended consequences.

Three Possible Futures for OpenD6

The way I see it, the owner of OpenD6 has three basic options. Maybe there are more, but I can't think of any.

1. Do nothing. OpenD6 would effectively expire. The D6 system itself is unaffected by this drama and OpenD6 does nothing to generate income for them directly. One could argue that OpenD6 stimulates some interest in the D6 system, and that goodwill has a value, but the net value of that goodwill is a matter of opinion. The publisher might simply not care or think that resolving this issue is a bother and skip it.

2. Update OpenD6 to the OGL 1.1. This is a bad idea in my opinion because of course there is a wrinkle. If the leak is accurate, 1.1 includes stipulations that are bothersome for anyone releasing commercially. It wouldn't affect the owner of OpenD6, but folks like myself would have to be sure we do whatever is required to remain in compliance with WotC. There are a few other issues as well, but the biggest one is that 1.1 allegedly contains a section that stipulates that WotC can terminate the license with only a 30-day notice, without cause. Adopting 1.1 would just carry us from being at WotC's mercy to another contract that leaves us at their mercy. The pro side of this solution (for only the owner) is that it would be fairly simple.

3. Release OpenD6 under an entirely new license. A Creative Commons license like CC-BY or CC-BY-SA would solve this issue for OpenD6 publishers entirely. Noncommercial CC licenses would protect fans, but would effectively end OpenD6 publishing. The Open Gaming Foundation lists a few other licenses which could be used. (It also lists the OGL, but that would defeat the purpose.)

Who owns OpenD6?

As far as I can tell, the owner of the trademarks to OpenD6, the D6 system, and West End Games remains Nocturnal Media. Their website is gone. I haven't been able to find a direct line of communication to anyone in authority, though I have a few leads, and I haven't seen any recent activity from them.

Nocturnal Media acquired West End Games and its remaining intellectual property including the D6 system and OpenD6, in the spring of 2016. Sadly, the founder, Stewart Wieck, passed away in June 2017.

Nocturnal has continued in some form though because they have run Kickstarter campaigns since that date.

Edit: I think I found a way to reach Alan Bahr, who may be associated with Nocturnal. I've reached out but I don't expect an immediate response.

The Strange State of OpenD6 and the OGL

OpenD6 had the OGL attached to it by Eric Gibson, a previous owner of West End Games/Purgatory Publishing. The original plan called for another license to use the logo, but that was changed to a version that only relied on the OGL 1.0a.

This was celebrated by the D6 community at that time. Everyone thought it was "Mission Accomplished!"

At that time, everyone believed that the OGL was eternal. It could never be revoked. I remind the reader again that I'm not a lawyer, but as I understand it the term "perpetual" in section 4 may not mean that the license can't be ended, it means that there's no need to renew it periodically. It's effective until it's terminated.

Section 9 of OGL 1.0a lists rules about updating the license. It also says that any authorized version of this license can be used.

A non-lawyer way of interpreting that might be "any version of this license that was ever authorized." If that is true, then we OpenD6 folks could ignore OGL 1.1 and continue what we're doing.

That's not what it says. And I remind readers that what we wish it said has no bearing on the law. Neither does any "common sense" or "plain language" interpretation. Words and phrases can have very precise legal meanings, and that is the kind of thing that only lawyers can weigh in on, and lawyers might even disagree.

Ryan Dancey is a lawyer, a former VP at Hasbro, and the person who formulated the OGL 23 years ago. He thinks that the OGL 1.0a can't be deauthorized:
Yeah my public opinion is that Hasbro does not have the power to deauthorize a version of the OGL. If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license. I am on record numerous places in email and blogs and interviews saying that the license could never be revoked. 

Slam Dunk! Let's Take 'em to Court!

Lawyers might disagree about these issues, but someone needs to foot the bill. Legal services are expensive. On one side, we have Wizards of the Coast, a subsidiary of Hasbro. This is a concern regarding a flagship product. Hasbro had net revenue of nearly two billion dollars in the third quarter alone last year. Yeah, that's not saying D&D brought them all of that, but it's considered to be common knowledge that WotC is by far Hasbro's most profitable division, and that of their two primary products, D&D is the one that has grown the most recently while Magic: The Gathering has struggled.

Dungeons and Dragons is a jewel in Hasbro's crown. They can afford to have an army of lawyers put a lot of time into such a fight, and it's unlikely that anyone, even Paizo, can fund the legal battle it would take to face them. There's certainly no one directly affected by OpenD6 licensing who can afford to take them on in court.

What Does This Mean for Mini Six: Bare Bones Edition?

Mini Six BBE, (released in 2010), includes a copy of the OGL 1.0a. It's currently out of print, anyway, due to issues with the print files identified by DriveThruRPG.

I'm working on a revision of that game, planned to be released later this year.

If Wizards of the Coast doesn't take the position that OGL 1.0a is subject to being deauthorized, then nothing changes.

If WotC insists that 1.0a is deauthorized, then I think that I will be forced to remove Mini Six, even in its currently free digital format, from DTRPG until such time when I can make it legal, which depends on several things. Remember that I don't have access to the original files, but I believe that I can do the simple edit of removing the page containing the OGL and replacing it with a new license, presuming Nocturnal Media blesses us with something.

If 1.0a is deauthorized and Nocturnal Media (or the owner of OpenD6) remains silent, then I believe I will be forced to remove Mini Six and won't have any recourse.

When I say "remove from DTRPG" I also mean that I won't be able to privately distribute it here, either.

What Does This Mean for the New Mini Six?

I don't know, exactly.

Currently, I have a "base text" (most of the text from Mini Six BBE) that I'm working from, an incomplete outline, and about twenty pages of unedited new material.

If forced to proceed without the terms of OpenD6, then the next game will become a "spiritual successor" to Mini Six. It would still be called Mini Six (revised, or second edition, etc., I haven't settled on a designation yet.) I don't mean that it would be unrecognizable - not at all. But it wouldn't be an OpenD6 game from an official standpoint. There would be no reference to OpenD6 or indication of compatibility with any other game.

So that means that for now, I wait and see what happens, but I'm still working on the new game.