You can view the page at http://www.loremaster.org/content.ph...test-Agreement
You can view the page at http://www.loremaster.org/content.ph...test-Agreement
This is simply an amazing breakdown of the actual agreement. You have broken it down in terms that I can understand. Very well done!
Great article, thanks! I hate parsing that stuff.
So what is your opinion about why they dont want people playing online?
My guess is that online play would lead to gaming with people you don't know, which in turn makes it impossible, even in theory, to know if your tablemates have followed the rules of properly registering. This playtesting is self-regulated, so this could be a reasonable means to control the data they have on playtest numbers. Again, I'm no marketing expert, nor am I a social scientist generally speaking. These are just my ignorant guesses. :-)
Thanks for the continued clarifications, Rob! Good stuff!
I find it interesting that there is no "value". Isn't having access to the very playtest materials a clear value to us gamers? It sure seems like we are all signing up A) to provide feedback and make the game better and B) to get our hands on these rules. That seems like value to me. I'll even argue that many gamers would pay for access to these materials. Thoughts? Still not a value?
I think he's speaking more in the tone of law, and not personal value,
Matt, that's right, but I don't get to duck T's question so easily. I've spoken with a friend (also an attorney) about this privately, and I'm really torn over this. (Why do I care? Because I'm a legal geek, too.) I haven't researched my concerns, so it's still an open question for me, and if any attorneys or contract specialists are reading this, I'd especially appreciate their thoughts.
Warning: This is not entirely IP law, so it’s somewhat off topic.
Let me illustrate my issue by way of an example that I think represents a good analogy, though imperfect.
Let's say you're car enthusiast who thinks the greatest thing in the world is to touch a Ferrari. Let's also say I own a Ferrari. (I don't. Not all attorneys are wealthy.) So, is it a valid contract if we agree that you wash my Ferrari in exchange for the privilege of touching my Ferrari? Put in other words that better express the issue, is it a valid contract if we agree that you wash my Ferrari in exchange for the privilege of . . . washing my car!?!? The work itself is consideration? That seems a bit fishy to me.
The reason it might work in a playtest agreement is because as part of a larger market, publishing, in which "getting their first" is a big deal. That is, while your subjective obsession with touching luxury cars is silly to most people, many (most?) people exhibit exactly that kind of behavior with respect to published materials. For example, people would easily pay extra money to see the Hobbit movies a week before the general public. So, let’s say a movie theater charges $10 for a regular ticket to the Hobbit. Then they offer a contract to modify the ticket to a $15 ticket redeemable at a special showing one week before it’s officially released. Is that enforceable? Probably, but . . .
The difference, of course, is that the moviegoer isn’t doing work by watching the movie. They’re enjoying a product for which they paid. That’s a cut-and-dry deal. In the case of playtesting, the playtesters are doing work that benefits the game designer financially. Assuming the playtester is doing their job, it’s certainly hard work. Tell me what the game designer has done to deserve that hard work from us? They produced playtest PDFs, but those would have been created anyway for the in-house playtesters. It just seems like, with the exception of a couple of web pages, the game designer has done nothing but pass off their work to the playtester, and accordingly is making out like a bandit. Is the playtester benefiting? Yes, they’re potentially getting a game they like, but not if their desires for the game are in the minority. They might get completely screwed, and that uncertainty makes a contract even more elusive. ("Hey, paint my house, and I might give you $1,000!")
Matt’s correct that the legal question is different from the geek question. It may make perfectly good sense to you to help WotC create a great game, and none of this makes WotC a BBEG, but that doesn’t mean your agreement to playtest is legally enforceable. Would a judge see objective consideration based on a silly subjective need to “get there first,” especially where you getting their first is essentially slave labor? I honestly don’t know. We’re certainly enjoying ourselves, aren’t we? In the end, we might be buying this game we've helped create because that's our idea of fun. That's a product on which we often spend a ton of money. There's some benefit there, but is it a sound basis for a legally enforceable agreement? Is it an otherwise valid contract, but so one-sided as to be deemed unconscionable, and thus invalid anyway?
I bet this issue has been decided rather simply. I’d rather a litigator or contract specialist who has this knowledge off the top of their head chime in rather than have to spend some time researching what is little more than a curiosity to me. If no one speaks up, I'll look it up under Virginia law (FWIW) eventually.
---------- Post added at 09:17 PM ---------- Previous post was at 08:38 PM ----------
I should add that, despite my complaints about the one interaction I've had with WotC legal, I've never insulted their competence or any of their legal documents. In fact, when people accuse the GSL as being a disastrous document, I tell them they need to take a course on contracts, because I'm a huge fan of the thing. (People's criticism of it seems to stem from a.) ignorance as to its actual purpose, and b.) not realizing it's unnecessary to sign the GSL in order to publish 3PP for 4e D&D; but that's an aside.) It's very peculiar to me that the OPTA has been so poorly drafted and should have been written as nothing more than a list of do's and don'ts. Taking the time to put it in the form of a contract, then being so sloppy with the language, contradicting itself and defying logic at one point, seems very out of character for WotC. Accordingly, I have a theory.
I suspect that WotC hired a first-year law student as an unpaid intern. They told the intern to write the thing, offering no guidance, instead using the massive failure sure to follow as a teaching method. Lawyers do this all the time, and as stupid as it seems, it's the custom in the industry. The conversation went something like this:
Intern: "Here it is. I call it, 'the OPTA'!"
Lawyer: "Wow, this sucks."
Intern: "What's wrong with it?"
Lawyer: "All these things: [list of things given]"
Intern: "Okay, so I'll rewrite it."
Lawyer: "No, no, no. There's no need. You have more important things to do. It doesn't actually have to be any good, because by default we're protected by IP law. This is really to protect the playtesters, and that's not important if we don't sue them. Just throw that thing in the playtest package and work on this other thing. Get me a cup of coffee first."
Lawyer: "Bodine wrote another article? He said what? Alright, I'll prepare a complaint for the defamation lawsuit...."***
Just a theory.
*** I'm just kidding. I'd be surprised of I were on WotC's radar scope. Please don't get angry, anyone.
Last edited by Frylock; 05-31-2012 at 09:57 PM.
Does the concept of trade secret allow for protection for elements of a creation which would not be granted by copyright?
Given WotC's need to take reasonable steps to keep material they are considering to be trade secrets confidential, my uneducated guess about the concern re: online play is the potential that communication by email, Skype, text transmitted via virtual tabletop, etc could be either intercepted by a third party or stored by the communications service provider, which would risk revealing the material to parties not bound by the agreement, who would then not be contractually (or confidence) bound not to use the material to create derivative works, etc.
I think that the risk is so low it isn't necessarily sensible for WotC to worry about it, but it might be that the lawyers have suggested that the safer route is to at least give the impression that the playtest is limited to those who have personally downloaded the material meeting in person with others who have done the same.
Trevor Kidd of WotC has responded to me on Twitter. Whether his responses are the final word remains to be seen, but they're certainly official and should be taken as such for now. Here is what appears on Twitter.
So here is how I summarize Trevor's views: We may not directly quote the WotC playtest materials, but we may summarize them, as well as discuss our opinions of course, anywhere we want. The rules, when discussed, must not provide specific detail, but instead must be discussed vaguely and in our own words. This is still, ultimately a smell test -- we can always find ambiguities in any agreement -- but it's one I think is within everyone's ability to grasp. That is, we all know that we can use the word "the" even though it appears throughout the playtest docs. Just don't go into quoting entire complex sentences, and especially not entire paragraphs. Also, it goes without saying that you may quote text when you're having a direct, private interaction with WotC personnel, so you can provide them meaningful feedback.
I see no contradiction with anything I said in my summary bullet points for the sections. [Some text deleted here because I've changed my mind.] :-)
Incidentally, Trevor thanked me for my article, which I appreciate. Trevor knows I'm trying to help.
Last edited by Frylock; 06-01-2012 at 06:28 PM.