... from the (hopefully preliminary) draft of the OGL 1.1 that's been posted:
"We know this may come off strong, but this is important: If You attempt to use the OGL as a basis to release blatantly racist, sexist, homophobic, trans-phobic, bigoted or otherwise discriminatory content, or do anything We think triggers these provisions, Your content is no longer licensed. To be clear, We want to, and will always, support creators who are using the OGL to help them explore sensitive subjects in a positive manner, but We will not tolerate materials We consider to be in any way counter to the spirit of D&D. Additionally, You waive any right to sue over Our decision on these issues. We’re aware that, if We somehow stretch Our decision of what is or is not objectionable under these clauses too far, We will receive community pushback and bad PR, and We’re more than open to being convinced that We made a wrong decision. But nobody gets to use the threat of a lawsuit as part of an attempt to convince Us."
... the boilerplate disclaimer that Wizards of the Coast has put on all of the old TSR D&D stuff over at DriveThru (including the 1e Players Handbook, Mentzer Basic, and Moldvay Basic rules...):
"We (Wizards) recognize that some of the legacy content available on this website does not reflect the values of the Dungeons & Dragons franchise today. Some older content may reflect ethnic, racial, and gender prejudice that were commonplace in American society at that time. These depictions were wrong then and are wrong today. This content is presented as it was originally created, because to do otherwise would be the same as claiming these prejudices never existed. Dungeons & Dragons teaches that diversity is a strength, and we strive to make our D&D products as welcoming and inclusive as possible. This part of our work will never end."
Anyone else seeing a problem here?
Consider the efforts that have been made to make sure people see everything from Lord of the Rings to Avatar 2 as racist (nevermind earlier works foundational to D&D), and considering the pressures brought recently brought against Complete Kobold Guide to Game Design and Mythic Polynesia.
I've seen work criticized as racist because somebody was writing characters of a different ethnicity. I've seen work criticized as racist because certain ethnicities weren't present at all.
This clause can be defined as strictly or as loosely, as desired, at any time. Who's going to decide? Not you, that's the important thing. And the recourse you have? None.
Even aside from that, the "We will not tolerate materials We consider to be in any way counter to the spirit of D&D." bit... that's all they need, someone at Wizards to think something is 'counter to the spirit of D&D' as they at that moment perceive it, and you're done.
This is the Hays Code, the Comics Code, and the 1990s TSR product code all wrapped together, because they don't even have to say what exactly it is you're not allowed to do.
And from Wizards' own February 2009 FAQ (which may or may not carry any weight legally), upon which a good number of people and companies over the past 23 years based their adoption of the Open Game License, and in some cases their entire livelihoods:
I'm going to go ahead and be very naïve, and very hopeful, when I say they can't do this.
And I believe they're going to anyway.
