The threat was so grave and existential that a new corporation, Garfield Games, was formed just to publish Magic: The Gathering, so that it could get investment that would not be threatened by the possibility of the whole company being destroyed by the Primal Order litigation.

After the TPO suit was settled out of court, Garfield Games was merged into Wizards of the Coast. The people who ran WotC in 2000, such as Peter Adkison, know personally how much water the "this is fair use!" argument

held in actual pragmatic fact for a publisher. All it took was one game company to decide they disagreed that it was fair and were willing to file suit over it.

The second event was the near bankruptcy of TSR. Again, key people (such as Ryan Dancey) involved in rescuing D&D from the implosion of TSR by facilitating its sale to WotC, had that experience to inform the creation of the OGL. It was not impossible to imagine D&D being owned by some corporate entity that did not care about it;