Developer’s Corner (Nondisclosure Agreements)
Many, if not most beta programs for new MMOs require users to sign a Nondisclosure Agreement to play the game. But a recent major Beta program did not require this. (according to story on Big Download). I’m going to cover just a few of the pros and cons of having a NDA for a beta program on your game release.
Now keep in mind this is for your game’s beta testers. Typically, the game should be 80 to 90 percent complete, with no functional issues and only minor interface or playability problems.
Pros: First, there appears to be no common law or state law protections against speaking ill about a game, denigrating it in online forums, or attempting to show how easily a product can be “gamed” or “cheated”. That’s one reason the NDA must have a confidentiality obligation between the developer(s) and the tester, and should preferably state that bugs should be reported as part of a beta-tester’s duty (and explicitly forbid disclosure of those bugs to outside parties).
Next, Reverse engineering, or ”breaking the code” as to how a program works. http://kfsone.wordpress.com/2006/05/09/interview-with-kfs1/ (Probably not a violation of NDA). But the more hard-core gamers, or specifically programmers or game engineers that participate in your beta, the more likely one or several of them can, if they wish, be able to duplicate a particular function or effect of your game.
Cons: Gamers believe it is an attempt to curb their freedom of speech. (Blog post by 2404 blog). This article, which you should really read in its entirety, claims NDA are cynical attempts to stifle discussions about poorly-made games.
Some users are critical of the time frames. Read this article at Workbench that talks about the length of time that the Dungeons and Dragons beta is effective for. (Hint: forever)
Peripheral mention of NDA in this article from Techrepublic about beta testing. Whether it is a “marketing-based” beta program might influence a slightly softer and more conciliatory tone in the language of the NDA.
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External Link: here’s a resource that contains some blank NDA forms as well as basic explanations….
If you’ve read a lot of attorney blogs (I don’t know that’s true because most of my readership is actually developers and gamers rather than other attorneys) you’ll note not a lot of attorneys have pro/con about certain agreements. That’s because I really don’t care one way or another if you choose to use a NDA or my services. There are pros and cons, and you have to decide if you are willing to risk a little alienation (or ridicule) from your beta-testers in order to protect your hard-fought code. If you decide that you’d rather spend a little cash on the front-end and save your resources for other fights later, you’ve got my email address in the link. Similar to many who read my column regularly, I hate to talk on the phone and do most of my conversations from the keyboard. (15 years ago that made me a decided outsider, but I’ve found it’s a lot more common today).
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Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.
Tags: Beta testing, Contract, development, NDA, Nondisclosure Agreement
A disclaimer before I rant: there is certainly some information that must be kept secret to run a competitive business. And, I honor all the NDAs I have signed; if I have a specific problem with an agreement I discuss it before signing.
From a developer’s point of view, I see this as an extension of the culture of excessive secrecy in the game industry. The primary reason is because game mechanics themselves are not able to be copyrighted, so they are generally protected under trade secret. However, this can be silly since most games in similar genres have similar game mechanics.
I’ve joked before that “NDAs are how the game industry says, ‘hello!’” Everyone wants you to sign an NDA before talking. The funny thing is that NDAs are often not respected. Go to any large industry gathering, like the upcoming GDC in San Francisco, and visit the local bar. You’ll see plenty of inebriated game developers spilling “confidential” information to others at the same bar, sometimes while being embarrassingly loud. The game industry burns people out quickly, so veterans tend to stick together and we share information with each other. Honestly, the only people hurt by this secrecy are the small guys or those without industry connections.
Of course, there are some people who just won’t sign NDAs, like venture capitalists. And make no mistake that they will go talk about your “super secret” plan to others, even those funding competitors. One time I was on a team talking to a VC about a proposal who grilled us for a few hours about our plan. The very next week we were told that they wouldn’t be investing in us right before they put out a press release that they were putting big money into another company (with a higher profile founder) with a similar business model. I assume that the VC passed along the good bits of our presentation to their new investment.
So, let’s be honest here: tester NDAs are mostly to keep control over information. Sure, sometimes you don’t want negative impressions of an unfinished game getting out there, but most of the time it’s to control the flow of information. Offering a big game site “exclusive” information is one way to get bigger coverage, and if Joe-Bob’s Gamin’ Blog gets information posted first because Joe-Bob happens to be in the beta, that makes the “exclusive” less appealing. Not surprising that Starcraft 2, a highly-anticipated game by a well-known company, is able to buck the trend. The game is probably already more polished than most other games out there, and news sites will still cover it no matter what because any information, even non-exclusive bits, will bring traffic.
My thoughts as a developer.
jaymoffitt Reply:
February 24th, 2010 at 5:11 pm
I’ll have to rely on your expertise as a developer. I’ve been a software rep before, but never worked “on the inside” of a game company.
As an attorney, I always try to be more aggressive for a smaller client than a larger client. Parallel to your point, if confidential information is leaked about a big company’s game, then they just walk down the hall to the in-house lawyer. For an independent developer, they have to walk to the bank for a big retainer. It’s much more practical for the smallish developer to “take the financial hit” early on by being paranoid about the info on the front end. I wholeheartedly endorse your idea that the “big guys” have the leverage in the information trade. The same is so with movies, TV, and every other entertainment medium.
Information provided is personal opinion. The comment does not constitute legal advice and no attorney/client privilege is created.
Brian 'Psychochild' Green Reply:
February 27th, 2010 at 3:08 am
True. But, this is true for a lot of legal issues for a small developer. Your best best is to not get into a situation where you need to go to court.
The culture of secrecy, as I call it, also has some other negative effects. For example, one time a company contacted me about some middleware. I wasn’t particularly interested, but I had some contacts that might have been. So, I asked for a whitepaper. “Sign this NDA” was the reply. Kinda pointless to sign an NDA when I WANT to refer someone to you. But, I’m not about to pass along contact info to a business without knowing that this is the type of company my contact wants to hear from.
jaymoffitt Reply:
February 27th, 2010 at 2:01 pm
Reminds me of one of my favorite websites, “Epic Fail”. I’m sure at no point did the attorney actually say, “By the way, if there’s a referral, or if you need to pass out some marketing info, have them sign an NDA”! There’s got to be a common-sense line that a developer, even a very careful developer can figure out: if there’s no confidential info, there’s no need for an NDA. I could see maybe, MAYBE, having a terms-of-use addendum on the whitepaper saying it was not to be freely distributed, etc., but almost by definition a “whitepaper” is freely available information to outline a product’s good points and announce its usefulness.
Way, WAY back in the day when I would write whitepaper material used for Windows CE 3.0 support (yeah, I’m dating myself), it was available freely because the platform was trying to be publicized. Nondisclosure should be about protecting a fully executed and ready-for-market product, and not a project or product that is trying to reach an audience. (The other alternative thought I have is that the product was available but the vendor had not as yet prepared any documentation, help files, or whitepaper that he/she could share).
Attorney disclaimer: this does not constitute legal advice and does not cause an attorney/client relationship.