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Legalese Alert: I need to define a contract principle because it kept coming up as I wrote this article. A contract is a legally enforceable agreement, and for an agreement to be enforceable, all parties to it must receive “consideration.” This is something of value. "We agree that painter will paint homeowner's house," is not a legally enforceable agreement, because nothing in that sentence demonstrates that the painter is getting anything out of the deal. "We agree that painter will paint homeowner's house, and painter will get $1,000," is probably enforceable because both parties get something of value. Consideration doesn't have to be money, but money is a great example of consideration. Please note that there are many other forms of consideration other than money (“I’ll give you my $5,000,000 yacht if you paint my house” works too). I just use money because it’s an easy concept to grasp and is probably the most common form of consideration given.
EDIT: Here we go again. How many times do I have to explain this? Apparently, at least one more time, even though the point of this article isn't even about the law itself! These articles aren't legal advice any more than me telling you the "speed limit is 35 mph" is giving legal advice. Legal advice involves adding, "and because you're driving 40 mph with no justification or excuse, you're committing a crime." In other words, stating the law is not legal advice; taking a person's specific factual circumstances and applying the law to those facts is legal advice. As always, I have to state the obvious: If you feel you have a specific legal issue, don't rely on the internet ramblings of an attorney you don't know. Talk to one personally and privately.
Also, keep in mind that this article is designed to decipher what WotC wants from you. While I have (and express) my opinions of the validity of the OPTA, I've also provided a caveat that some of these opinions are from my gut. More research that I'm not willing to do is required, but is irrelevant to my point anyway. I'm just trying to figure out what WotC wants from us, and their contradictory language poses problems for me in that regard. This is by no means an indictment of WotC's competence or corporate character. I just suspect that WotC isn't very concerned with the details of the OPTA.
If all you read are my statements following, "What they’re probably saying," then you've gotten everything out of this article that you need. For that reason, I've edited the article to place those statements first so that you have context when you read my explanations.
License and Non-Disclosure Agreement
OPTA acts as a license and non-disclosure agreement for WotC intellectual property. Trademarks aren’t much of an issue here, so I’m going to ignore them. Let’s deal with copyrights and trade secrets. This means that we start from the assumption that WotC owns copyrights, which they’re now licensing to you with the OPTA. It also assumes that WotC has trade secrets that they’re compelling you to keep secret, which as I’ll discuss below, leaves me with some doubts.
Fancy Toilet Paper
The OPTA is almost certainly not enforceable. There’s no real consideration being passed back and forth (e.g., were any of you paid?), there are no signatures on this written contract, there were no oral agreements between WotC and any of us, there was no bargaining of the agreement's terms between WotC and any of us, and addressing the question of substantial performance (or other exceptions to unenforceability of unsigned, written contracts) is, at best, difficult to answer, but probably don't apply.
Technically, this puts playtesters in a tough spot, though you shouldn’t be shaking in your boots. As I wrote, we start from the assumption that WotC owns the copyrighted material, so you can’t do a damn thing with it unless you have their permission. You may not copy it or distribute it, and they can revoke that permission at any time. Well, if this is your license, and the license doesn’t stand up as enforceable, WotC can say that they never really gave you permission, and you’re screwed.
Sort of.
WotC’s actions in posting this agreement can give rise to an implied license, and a court would provide a fair interpretation of the license to protect us from stupid lawsuits. For example, many character sheets have the following line on them: “Permission granted to photocopy this page for personal use only.” You aren't mentioned as a party, there's no consideration, and there aren't any signatures. Nevertheless, when combined with the nature of a character sheet – it’s almost useless to you if you can’t copy and use it – I don’t believe a single court in America would punish you for copying and using the character sheet. WotC would need to make a wide-reaching, public statement revoking that license, so there was good reason to know you knew about it.
So, while it's really rather worthless as a written contract, you can fairly use it to predict whether WotC will choose to send a C&D or sue, and whether a court would take their side or yours if push came to shove. Of course, this requires you understand its terms, which I go over here.
Regardless, I remind you that WotC isn't our enemy. The OPTA tells us what they want of us. If you don’t hate WotC, you should play nice and give them what they want. These demands aren’t unreasonable.
Preamble
What they’re probably saying: Nothing of consequence. You can ignore this.
If this were an enforceable agreement, this preamble would constitute malpractice. (I’m exaggerating.) It's non-standard to say the least. All it's doing is indentifying WotC, making a statement of general policy, acknowledging that this playtest is an exception to that general policy, and then tells you what you're thinking in case you didn't know (i.e., that you're willing to abide by the agreement.) It doesn't even identify you. There's nothing to see here. Just move along.
Eligibility
What they’re probably saying : Create a Wizards.com account, and download the documents yourself if you’re going to playtest them, either as a player or DM.
Everyone who playtests D&D Next must have a valid WotC account. This includes anyone around the table playtesting the game. This does not have to be a fee-based D&D Insider account. I suspect this has two purposes. First, it increases the number of people subscribed to their site, driving up traffic, driving up awareness of their products, and thus driving up revenue. Second, it gives them a better idea of how many playtesters they have, which could be important for any number of reasons I won't bother to address despite how intuitive they are. I'm no marketing expert.
Playtest Materials
What they’re probably saying : Create a Wizards.com account, and download the documents yourself if you’re going to playtest them, either as a player or DM. Also, don’t copy the documents when you’re creating your own RPG.
Any materials you download from WotC which are copyrighted, trademarked, a trade secret, or (just to be thorough) patented may be used for the sole purpose of playtesting. If you use the protected materials in any way that isn't required in order to run the playtest, WotC will get angry. The laws governing intellectual property are still applicable, so they can enforce their rights to their IP regardless of the OPTA's validity. This term actually protects you more than it does WotC. They're letting you know that they're not coming after you if you print out the Bestiary even though it's otherwise an unlawful copying of copyrighted material.
Note that this license they've granted (or claimed to have granted
) is, among other things, non-transferable. This means that, in order to avoid their wrath, anyone that, for example, prints out the documents, must have downloaded them himself. The non-assignability requirement means that you may not give those copies to someone else even if you no longer want to be a part of the playtest. To be clear, everyone who wants to playtest D&D Next must download the playtest documents themselves. I suspect that, like the requirement to have a Wizards.com account, this is to make sure that they have a good idea of how many people are playtesting. There were technical hurdles to downloading the playtest documents on day one, but those are no longer present. Just download the docs yourself, and everyone's happy.Feedback
What they’re probably saying : If you want, provide feedback, but do so only on official WotC channels. If you provide feedback, don’t copy Dragon Age RPG material to compare the two, because that’s a headache for us. If you do, we’ll throw you under the bus.
Feedback is optional. This is important because I'd expect many groups to discuss their playtest, then place the responsibility on one person to submit feedback on behalf of the entire group. The fact that feedback is optional allows for this practice using the simplest contract terms available. If you do provide feedback, you must do so on an approved forum (e.g., not ENWorld), or to an approved email address or in response to a browser-based or email-based survey (e.g., don't send your feedback to my personal email address).
There are a couple of problems with this paragraph. First, it appears that having after-playtest discussions via email, even with your playtest group, are in violation of this agreement. The ridiculousness of this conclusion would probably prevent a court from punishing you, and I’d be very surprised if WotC actually opposed it. Still, they probably should have taken the time to make this clear. There are too many legal geeks out there that play RPGs.
Second, it appears there's some poor writing in here. They say that providing "such Feedback will not violate the intellectual property rights of any third party." How can they possibly guarantee that? Based on the surrounding context of that statement, I suspect they're actually telling you that the burden is on you to make sure you don't violate the intellectual property rights of others when providing your feedback.
EDIT: I saw a couple of people on Twitter announce that they had just posted articles on their playtesting experience with D&D Next. I didn't read the articles, but if they can be fairly characterized as feedback -- how could anything more than "I like it" not be feedback? -- then posting them to personal blogs is a problem, as your personal blogs are not official WotC channels. Interestingly enough, one of the tweeters copied Mike Mearls on his tweet. Will WotC object? I'm not sure. It depends on what was written and whether WotC thinks its worth the trouble. This is just a heads up, though, that your personal blogs are not official WotC channels, and might make WotC mad. Be careful what you post there.
As a side note, you might be tempted to post your analysis of your playtest on the grounds of the“news-reporting” fair use exception. The more you copy from WotC, though, the less likely you’ll be able to make that stick. One of the fair use factors is the “amount” of the copyrighted material you reproduced. If you do a good, thorough job of playtesting, then reproduce a ton of WotC’s materials in your analysis, even the First Amendment won’t get you out of an infringement suit.
EDIT: To clear up a misconception appearing on Twitter, let me remind you that game rules aren't copyrightable, so if you compare the Dragon Age RPG ruleset to D&D Next, you aren't violating Green Ronin's intellectual property rights, so you aren't going to anger either Green Ronin or WotC. If, on the other hand, you copy Green Ronin's text word-for-word or reproduce their artwork all in the name of providing feedback to WotC, then you're violating IP, and WotC will say you're violating the OPTA.
Example #1: I describe the stunt point mechanic from DARPG and compare that to whatever D&D Next is doing with critical hits now. You may not copyright game rules, so by talking about those two systems, you aren't violating anyone's copyrights. Therefore, you aren't violating the Feedback section of the OPTA.
Example #2: I copy an entire section from the DARPG player's guide discussing role-playing styles. I then copy an entire section from the D&D Next player's guide discussing role-playing styles. I paste them side-by-side to each other, then criticize each of them, saying one is doing a better job of helping new players understand how to play RPGs generally. Because I'm copying an entire chapter of the text, I'm probably violating the copyrights of both Green Ronin (DARPG) and WotC (D&D Next). Both of these copyright infringements violate the OPTA.
The point of the Feedback section of this article is to say that my violating of Green Ronin's copyright is itself a violation of the OPTA. Copying WotC's text is also a violation of OPTA, of course, but even violating a third party's copyrights violates the OPTA.
Sorry for not making this clear. I hope it is now. Please use the comments section below to ask follow up questions rather than Twitter. The law is difficult to explain in 140 character pieces. :-) Also, please (re)read my article, Protection from Chaos Part VIII: Intellectual Property Primer, for a much more thorough discussion of intellectual property law concepts, accompanied by examples.
Ownership
What they’re probably saying : We own everything, even stuff we can’t legally own. So, don’t discuss any of this on non-WotC channels, and don’t go selling our stuff to other people. In fact, don’t even give them to anyone free of charge. We gave it to you; keep it on your computers, though you may print it out for your personal use. (Seriously, though, we don't own everything. We're just talking about the detail of our game rules, which we think are trade secrets.)
As is almost always the case with agreements similar to this, this term wouldn't be entirely enforceable under United States law. It's far too broad, but there’s a good reason for that. If they claim they own everything (see, e.g., the NFL’s prohibition against describing their games), then they won't accidentally leave out what they actually do own. For example, ideas by themselves aren't protectable under copyright law, so you may legally use and discuss their ideas as long as they’re not trade secrets or patented materials. Also, as I stated in my previous article, Protection from Chaos, Part VI: Works for Hire, there's no way in hell that any of your feedback falls under the work-for-hire doctrine (defined under 17 USC § 101). Even if a court would deem the privilege of being an unpaid playtester as valid consideration for a work-for-hire, in the absence of either an employer-employee relationship or a "written instrument signed by" the parties (emphasis added), there's no transfer of ownership to WotC. In order to do that, a written, signed copyright assignment would be necessary, requiring separate consideration. Perhaps the terms of use for the WotC website would make your feedback WotC property if that's how you provided it, but calling this a work-for-hire doesn't fly, even in theory. If, however, you sue WotC for publishing your playtester notes, the rest of us will no longer like you.
By the way, the "moral rights" to which the OTPA refers are rights that don't exist in US copyright law. WotC's scope is international, so they're attempting to cover their bases overseas as well.
Confidentiality
What they’re probably saying : Don’t discuss any of the game mechanics on non-WotC channels except with your own playtesting groups. Don’t even discuss it with other playtesting groups in person. You can’t be certain they’re following our rules.
A confidentiality provision in a public playtest? Seriously?
This provision says that you won't distribute these materials to others. That was already covered above under IP law, but here they're trying to say that much of what's in the OPTA is a trade secret. See my article, Protection from Chaos Part VIII: Intellectual Property Primer, for the definition of trade secret. Edit: Seriously, please (re)read that article, or at least the section on trade secrets. I'm getting a lot of questions that have been answered there. They end this section by telling you it's okay to talk about the playtest. The only rational interpretation of this provision is that you're free to discuss these matters orally, but you may not do so in writing if you're reprinting any part of the written playtest materials. That's nearly impossible to do in any useful way, and arguably contradicts the permission they give you to post about it to their forums, but that's what they're probably saying.
I’m not so confident that they can make those claims of trade secrets stick. This is, after all, characterized as a public playtest. More importantly, downloading the playtest materials is simply a matter of going to the correct URL and downloading them. I was able to do that without being logged in, though WotC did make that difficult for me. Are those means "reasonable under the circumstances to maintain [the] secrecy" of the playtest materials? § 59.1-336, Code of Virginia, 1950 as amended. I’m not sure, but I don’t care. This is certainly a reasonable position for WotC to take, as they’ve done something to make it tough. Regardless, I’m going to keep my mouth shut, and so should you, because this is what WotC is asking of you regardless of what they can legally demand it of you.
As I said above, what WotC wants is to make sure they know how many people are involved in this playtest. By making sure that everyone around the table has already downloaded the package through the website and printed their copies themselves, which they haven't forwarded onto others, WotC should be happy. At least to some extent, this requirement is enforceable through various federal and state statutes, so you should probably do as they ask.
What’s Missing
The reason I was asked to review the OPTA is because of WotC’s demand that D&D Next not be playtested online. Apparently, they’ve made it very clear that they don’t want you to do that. There’s absolutely nothing in the OPTA that addresses this, but it doesn’t matter. Remember, we start from the base assumption that, at the very least, WotC owns a valid copyright in the materials. If you’re playtesting them, you’re constantly discussing them, which you may not do (or at least, they don’t want you to do) without their permission. They haven’t given you that permission in the context of online play.
Some Final Thoughts
You may be thinking, “I’ll never get caught.” That might be true. People commit murder and never get caught. That doesn’t make it right or even advisable. One common theme throughout this article is that WotC isn't asking very much of you, and they’re not a BBEG. Please play by their rules even if they aren't really rules. They’re trying to create a good game, and there's probably some sound marketing science backing up this structure. Although I've had my reservations about what WotC has said in seminars and distributed in the past during the closed playtest, I see no reason not to respect their wishes.
About the Author
Robert E. Bodine, Esq. practices real estate and intellectual property law in Virginia. He is one of the founding members of the Gamers’ Syndicate, a Washington, DC-based gaming club, and part owner of synDCon, a table-top gaming convention. He authors the article series on Loremaster.org, Protection from Chaos, dealing with intellectual property law matters as they relate to the gaming industry. You can follow him on Twitter @RobertEBodine for legal matters, @GSLLC for gaming matters, and if you’re a sports fan, @MMADork.
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