The Playtest Agreement

[I'm A Banana]

It's utterly routine in our economy for people to use contracts to set up rights that they have no intention of enforcing in the vast majority of cases.

I don't find that a persuasive argument, at all. Perhaps I am an intolerable extremist, but I don't think "routine" gives one permission to engage in a behavior. It's a fine explanation, but a lousy excuse. Your mom might agree with me, what with the "if all your friends jumped off a bridge..." kinds of aphorisms.

Routine is certainly why you shouldn't be angry (rage at the machine is usually impotent, as it misses the mark and leaves one spent), and why you should be sympathetic (WotC's lawyers are clearly subject to forces beyond their control), but none of that means you have to accept it silently and go on your merry way.

If you see a problem (and I see this as a problem), you must address it where and when you can. D&D has taught me this.

That's like asking the owners of private "public" space - say, the landlord of a shopping mall - to just gratuitously relinquish title in that land.

Only if they want people to freely use it, and perhaps offer feedback on how it can be improved. If they DON'T want people to freely use it, they're free to restrict, but if they want people to freely use it, they should let people freely use it.

(not to mention that a lot of the ways in which places like shopping malls choose to selectively be "private" are usually great arguments in my mind for not letting them claim that in the first place, and how the erosion of public space has harmed the nature of public discourse in the nation, and how Zuccotti Park is a sign of the problem, not a sign of a functioning legal system....but I digress)

The issue here isn't that WotC wants to restrict the playtest. It's that they DON'T want to restrict the playtest, but they're doing it anyway because HABIT.

That's foolish.

It's not XTREMENERDRAGEFROTHMOUTHCRAZYTALK to suggest that they might want to stop being fools. I'd give the same advice to a friend who was drunkenly annoying people at the bar: "Dude. Chill. You're being kind of a douche."

 

[Kaodi]

I find the whole idea that there is going to be litigation over what people do with these materials among their own playtest groups is laughable in itself. But if there was such litigation, I would be taking a copy of Mearls' statement into court and on that basis arguing waiver, estoppel or some comparable line of defence.

I mean, Mearls is clearly in a position to communicate on behalf of WotC in respect of the playtest - my playtest package even included a letter from Mearls to me!

I never said there would be legislation litigation (oops, betraying my political junkie status there). I am moreso approaching it from an angle of "If you take your agreement between Wizards of the Coast and yourself seriously, how should you behave?" Obviously some people feel it is just a formality, and perhaps (perhaps probably) it is. But if, for whatever reason, you feel you ought to treat it as more than just a formality, then these sorts of questions of permissions are still going to be relevant.

 

[dd.stevenson]

I am not sure, " What Mearls said, " carries much legal weight. There is an agreement, and unless one of the suits pops up and says, " Hi, I am a lawyer for Wizards of the Coast, and the agreement totally does not require you to refrain from X, " I am not sure you can assume that you are not obligated to refrain from X. You know, all those arguments about what will happen anyway notwithstanding.

If you have even a shred of evidence that Mearls is encouraging people to break the terms of the agreement, then please by all means present it. If he were caught doing this, my view of WotC and Mearls himself would be forever changed.

In the meantime, however, I'm going with the common sense interpretation--that directions given by the Senior Manager for RPG R&D regarding playtesting can be followed without breaking the playtest agreement.

Finally, I believe you are wrong about "What a senior manager said" not carrying much weight in court--though, this will vary by case and jurisdiction.

 

[Agamon]

Second, and perhaps a little more philosophically, I think that it is a little...skeevy...for anyone to ask you to sign an agreement that they fully expect you to violate and have no real intention of enforcing in any legitimate way. Someone who tells you that there is a law against eating apples, and then holds one out in front of you, nodding and smiling, telling you that apples sure are delicious and that everyone should try them at least once, and it's not like there's any cops watching, is not to be trusted, generally speaking. I know it sets off all sorts of morality bells for this bible-student. There is an easy way out of this, and that is for WotC not to make that rule to begin with. If they're going to do an open public playtest they should make it open and public.

People are forgetting something. You can complain until you're blue in the face to WotC, that won't help. The lawyers come from the giant, faceless corporation that is Hasbro, and they are about as likely to listen to us as an elephant would a gnat.

Hasbro and WotC are not the same thing. WotC wants to have an open playtest, big brother Hasbro sends in the lawyers and tells them how it's going to be. Then WotC sends it out as ordered, all with that wink and nudge. I almost guarantee that the designers will outwardly tell you to do as the agreement spells out...with their fingers crossed behind their backs and silently cheering when the silliness is ignored. They want the game playtested by as many souls as are willing, it's the Hasbro lawyers that couldn't care less about that.

 

[I'm A Banana]

People are forgetting something. You can complain until you're blue in the face to WotC, that won't help. The lawyers come from the giant, faceless corporation that is Hasbro, and they are about as likely to listen to us as an elephant would a gnat.

Yeah, probably. But enough gnats and even an elephant might get annoyed enough to step off the nest, if only because it's easier than blinking all those dead gnats from your eyes. And I can't help but be an optimist about things I think are important.

If you have even a shred of evidence that Mearls is encouraging people to break the terms of the agreement, then please by all means present it.

From just earlier today:

From here:

We're thinking about granting fighters two themes at 1st level, so if you want to test that I'd suggest grabbing the dwarf cleric's guardian theme and adding it to this fighter

From here:

You agree not to copy, excerpt, distribute (either in physical or digital format), publish, display, disseminate, release and/or transmit, in whole or in part, or create derivative materials from any Playtest Materials provided to you.

Again, IANAL, but if you add a theme to a fighter, is appears that you're technically creating a derivative of something in the Playtest Materials (a derivative fighter).

Which violates them.

And Mearls is telling you explicitly to do that.

I'm willing to be shown to be wrong here, but I think that counts at least as "a shred," no?

According to that sentence, you're also violating the agreement if you print out a character sheet, so I hope no one's doing that, either.

 

[Agamon]

IAANAL (the extra "a" is "also" ), but I don't think that is "creating a derivative material". I think by that they mean "derivative work". You can tell your player, "Use two themes." If you rewrite the playtest rules to say that the fighter gets two themes, that's where there are problems.

 

[pemerton]

I am moreso approaching it from an angle of "If you take your agreement between Wizards of the Coast and yourself seriously, how should you behave?" Obviously some people feel it is just a formality, and perhaps (perhaps probably) it is. But if, for whatever reason, you feel you ought to treat it as more than just a formality, then these sorts of questions of permissions are still going to be relevant.

I think there is a difference between treating it as a mere formality, and slavishly or quixotically adhering. The inbetween position goes something like this: first, ask yourself why WotC has reserved to itself certain rights; and then ask whether your violation is likely to interfere with WotC's interests that you've identified. If the answer is no, then you're probably pretty safe. Just like you might take an unopened bottle of wine with you on a train on your way to a restaurant or dinner party, even though there is a sign in the train saying "no alcohol onboard".

 

[pemerton]

Perhaps I am an intolerable extremist, but I don't think "routine" gives one permission to engage in a behavior.

I don't think it's objectionable, in law, to set up rights that you expect people to violate and that you don't intend to enforce in many of those cases. In fact, in a rights-based social system, that can sometimes be the only reasonable way of ordering your affairs.

My example of the housing project near my home is (in my view) a clear illustration of this.

The issue here isn't that WotC wants to restrict the playtest. It's that they DON'T want to restrict the playtest, but they're doing it anyway because HABIT.

They're not doing it out of habit. They're doing it to maintain the capacity to regulate the playtest.

Just like the housing project security personnel want to have the capacity to regulate the use of the project grounds.

The way that a shop generates the right to search your bag is to state it as a condition of entry. It doesn't mean they're going to search everybody's bag.

The way that the housing project generates the right to eject hooligans is to state that the right of entry is refused to all but residents and bona fide guests. That doesn't mean they're going to kick out non-resident, non-guests who are behaving themselves in the grounds.

The way that WotC generates the right to control its playtest materials is to get those to whom they distribute them to enter into a contract. It doesn't mean they're going to enforce those contractual rights against everyone, or even anyone. It's just an example - one of any number that could be given - of people using the private law to create rights that give them a regulatory capacity.

One might object on anarchist grounds, or socialist grounds, or other sorts of grounds that you can't talk about on ENworld. But assuming a person has no general objection to contemporary systems of private law, I don't think they can have much of an objection to the type of private legal ordering that WotC is creating here.

It would of course be different if WotC was under some sort of duty to distribute the materials, or if WotC were not the appropriate people to regulate the playtest. But I haven't seen any argument that either of these things is true.

 

[dd.stevenson]

Again, IANAL, but if you add a theme to a fighter, is appears that you're technically creating a derivative of something in the Playtest Materials (a derivative fighter).

Which violates them.

And Mearls is telling you explicitly to do that.

I'm willing to be shown to be wrong here, but I think that counts at least as "a shred," no? <snip>

I'm no lawyer either, but I happen to know that "derivative work" is a specific legal term based on case law. If you can cite a precedent where a court has found a similar activity to constitute a derivative work, then we have something. Or if someone who knows copyright law would like to pipe up and say "yeah that's totally derivative work" then that would make me sit up too.

But otherwise, no, I don't think this counts.

Look, I don't like the playtest agreement--I think its dumb as a stump, considering the market that WotC is trying to recapture. I'll admit that I'm baffled by the prohibitions on online playtesting, and troubled by the ramifications of this attitude for the next OGL. But what you're doing is impugning the behavior of a talented, respected and helpful designer, founded on nothing more than flat-earth-society style legal research.

 

[Lwaxy]

For some reason, this thread always wants me to quote to one user instead of doing a new post or quote anyone else.

I disagree that the online play market isn't important for the game. More and more people only have time to play online.

As for not everyone at the table speaking English being a problem for playtesting, I don't think so at all. On the contrary, it shows how easy rules can be translated. And we, as the GMs, would give feedback about what the players did and how they liked it so there is really no need for every single player to do it. I bet in many groups there will only be one or two people bothering giving feedback, the GM usually being one of them.

As a GM, I will need to know how the people I usually play with react to the material, how they handle their characters and make them alive as opposed to us just going through combats and see how the statistics hold up. It is early in the playtest so right now it matters little save the disappointment of the players. But involving everyone right from the beginning or not might make a difference in regards to us using the system later or not.

I think maybe the no online thing was more about actually getting the playtests done, as games tend to take much longer online. The not being able to play with anyone's kids though I just don't get. It is not like the 8-year-old player will run around doing anything that could harm wizards.