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.

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.

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.

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.