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Anatomy of a Snafu- D&D Beyond and the Curious Contest
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<blockquote data-quote="Snarf Zagyg" data-source="post: 8364468" data-attributes="member: 7023840"><p>After reading your comment (t/y) I realized that perhaps, in my usual desire to make the funny (and get my good friend Phil Ken Sebben some work), I might have buried the lede or made things not completely clear. Some things that might seem obvious to me (which is why I put up the links and source documents) may not <em>pop </em>and be obvious to everyone else; I guess I should have realized that given there is a whole 'nother thread about it. Bad on me! Here's the very brief sketch of what the OP is "about"-</p><p></p><p></p><p><strong>A. Background</strong></p><p></p><p><em>1. There are 50 states and a federal government. </em>If you don't live in the US, you may not realize that every ... single ... state ... has a different legal system. Different legislature, different courts, different laws. While there is some degree of homogenization, things that are lawful in one state can be unlawful in another state, and a court in one state would uphold a contract that a court in another state would not uphold (for example). In addition, there is a federal government (the US government) which is kind of an "overlay" of different laws, and different courts, with a different legislature. </p><p></p><p><em>2. Sweepstakes and contests have always caused problems. </em>Sweepstakes (enter to win a free car!) and contests (the best 10 photos will win a prize) have been a source of problems throughout US history for two primary reasons- first is gambling. Because there is very little to distinguish between a sweepstake and a lottery (or other forms of gambling, like the 'numbers racket'), and because gambling has long been unlawful in the United States, there are a lot of laws to make sure that there's no gambling going on. In addition, sweepstakes and contests are a tradition point of fraud- promising prizes that don't exist, used to lure shoppers into store and then the "prize" will go to the store manager, or contests run to solicit entry fees ("We want to see how good your art is!") with no actual contest.</p><p></p><p><em>3. States and the federal government have a multitude of ways of regulating sweepstakes and contests. </em>Legislatures are reactionary; something bad happens, and "there has to be a law!" So as all of this gambling and fraud was publicized for decades and decades, laws were passed- and they are different in different states, and different for the federal government (which I will ignore from now on, other than to say that the FTC concerns itself with these issues). So in one state, a person might have promised a huge prize that didn't exist, and that state passed a law requiring sweepstakes organizers to post a bond. In another state, they might have specific rules about contests & sweepstakes involving alcohol. Other states might have barred the "get you in the door" sweepstakes (no requirement to visit a store). And so on.</p><p></p><p><em>4. The different states are really different. </em>But it doesn't end there- in addition to the specific laws on sweepstakes and contests, the state will have more general laws that might apply- and these laws vary from state to state. Finally, if there are terms and conditions- which will be a unilateral contract (the sponsor offers a prize, the participant accepts the offer by entering the contest), the contract will be construed by state laws ... which are different. </p><p></p><p><em>5. If it's that hard, how can companies run these things? </em>Well, reputable companies protect themselves through a contract. And back in the old days, it wasn't that hard. A company would start small, and run some type of thing, and no one would care if they weren't obeying every single rule. As they grew, and became more of a target, they were still located within a single state- so they didn't have to worry about all of the states. If they continued to get big, and were operating around the US, then they were big enough to hire fancy pants attorneys to make sure they were covered if they wanted to run a nationwide sweepstakes. But you can immediately see the problem- it's not the old days. Today, with the internet, even the smallest businesses are selling across the US (and sometimes around the world). And the contests and sweepstakes? Yeah, those will have a much bigger reach.</p><p></p><p></p><p><strong>B. The D&D Beyond Controversy</strong></p><p></p><p><em>1. D&D Beyond was pilloried for acquiring the rights to all the art entries in a contest.</em></p><p>If you look back at the thread, and the D&D Beyond controversy, you see that the issue (as Morrus put it in the OP) was that "Competitions where the company in question acquires rights to all entries are generally frowned upon[.]" As presented, this was one of those, "Yay, labor" moments. Which I can totally get- I literally just wrote a long post about how people should hold companies more accountable for their labor practices. And it sounds terrible, right? "Evil derpcorp outsourcing all their art for a pittance; working artists get screwed again." </p><p></p><p>...And yet, I didn't quite understand it. Because America is a litigious place, and companies need to protect themselves. For example, any service you use that allows you to upload your photos will have very expansive licensing rights for those photos- you are welcome to look at facebook/instagram, google photos, or ... any single place. Part of that makes sense- if you upload a photo to facebook that you made, you have the copyright in that. If facebook shares that photo to someone else, that can be an issue for them (because facebook is a monetized platform). Multiple the number of users on facebook ... and you get the idea. On the other hand, there are very real concerns about the scope of some of those licenses and what companies might be doing.</p><p></p><p>But this didn't make sense. This looked like it was a simple fan contest. I think there are very good arguments that companies should not be running these types of contests at all, but ... I think it was intended to solicit non-professional work for fun, not for any sinister purpose, and that the use of standard licensing language did not make it evil. And yet, no one had posted the language they used ... or had gotten hold of Phil Ken Sebben.</p><p></p><p><em>2. D&D Beyond was using marketing software to generate the contest and the terms & conditions (T&C).</em></p><p></p><p>If you look at the actual T&C for the contest that is linked to in the OP, something pops out immediately- it's not ... quite ... right. It's apparent in all sorts of ways, but I'll use a single example. Remember that whole spiel about protecting companies and litigation in the U.S.? As soon as you look at this document, you'll see paragraph 12- which is "Disputes." Notice that it refers to the United States, twice. Both that the laws of the United States are used, and that an action will be brought in the United States. That's profoundly weird. I'm not going to go into why- but it is super weird (and you can look at the Apple one I posted to see what a normal one would look like).</p><p></p><p>So I looked at the last thing that was run by D&D Beyond- it wasn't a contest like the art contest, it was a sweepstakes. The T&C are linked to as well. And you know what? It was the exact same. They were using the same weird language for both. Even though sweepstakes and contests are not the same thing, and come with different issues. </p><p></p><p>Which meant that this wasn't a case of evil derpcorp stealing art, but something far more interesting and weird. And that's where we get to Gleam.</p><p></p><p><em>3. Gleam makes all your marketing dreams come true. </em></p><p>Gleam is the company, based in Australia, that runs competitions (contests & sweepstakes, so I don't have to keep writing that). They have a gorgeous website, and if I was into marketing, I would totally buy what they are selling. You can integrate with social media, I'm sure that there are synergies involved, and there might even be a pivot to video somewhere. I am starting to make jokes again- but it really does look like some cool marketing software that would help drive engagement and (holy grail time) get more information about the users. Cool cool. </p><p></p><p>However ... Gleam lets companies (like D&D Beyond) run competitions on social media and have those embedded in your website in under three minutes. And part of doing that is that they will create the T&C for you through a template. That's right- no one made the T&C. It was auto-generated. Which is why ... it's weird. </p><p></p><p></p><p><strong>4. What really happened?</strong></p><p></p><p>I don't know. But if I had to hazard a guess, I would say that people in marketing in D&D Beyond (and/or people running the social media) found this great new way to drive engagement. 'Cuz it is! And no one cared about the T&C, which was auto-generated, until it became a controversy. Once it became a "thing" someone higher up the food chain (D&D Beyond was owned by Curse, but apparently Fandom bought them?) probably looked at the T&C and said, "Woah now. Let's take a big step back." But it wasn't really about the art, ever. Sad as it is to say, I am quite sure almost no thought was given to the contest itself. They had a successful sweepstakes, and then someone said, "Hey, let's celebrate some fan art ... and drive engagement!" </p><p></p><p>Given that it likely really isn't about the art, a limited-time irrevocable license (one year from the competition) along with a more carefully-crafted real T&C would likely alleviate the issues. But who knows? That's up to them. </p><p></p><p></p><p><strong>5. Is there any big picture takeaway?</strong></p><p></p><p>Kinda. I'm not really into the whole "social media" thing (or the whole "social" thing) but I do know that there are a lot of competitions on the internet, and there seem to be more and more of them. If I had to hazard a guess, I'd say that there are competitions that don't even bother with weird T&C, or aren't in compliance with something, somewhere, and may be doing the things that these rules are meant to prevent (fraud, etc.). Be careful out there, and look to reputable places.</p></blockquote><p></p>
[QUOTE="Snarf Zagyg, post: 8364468, member: 7023840"] After reading your comment (t/y) I realized that perhaps, in my usual desire to make the funny (and get my good friend Phil Ken Sebben some work), I might have buried the lede or made things not completely clear. Some things that might seem obvious to me (which is why I put up the links and source documents) may not [I]pop [/I]and be obvious to everyone else; I guess I should have realized that given there is a whole 'nother thread about it. Bad on me! Here's the very brief sketch of what the OP is "about"- [B]A. Background[/B] [I]1. There are 50 states and a federal government. [/I]If you don't live in the US, you may not realize that every ... single ... state ... has a different legal system. Different legislature, different courts, different laws. While there is some degree of homogenization, things that are lawful in one state can be unlawful in another state, and a court in one state would uphold a contract that a court in another state would not uphold (for example). In addition, there is a federal government (the US government) which is kind of an "overlay" of different laws, and different courts, with a different legislature. [I]2. Sweepstakes and contests have always caused problems. [/I]Sweepstakes (enter to win a free car!) and contests (the best 10 photos will win a prize) have been a source of problems throughout US history for two primary reasons- first is gambling. Because there is very little to distinguish between a sweepstake and a lottery (or other forms of gambling, like the 'numbers racket'), and because gambling has long been unlawful in the United States, there are a lot of laws to make sure that there's no gambling going on. In addition, sweepstakes and contests are a tradition point of fraud- promising prizes that don't exist, used to lure shoppers into store and then the "prize" will go to the store manager, or contests run to solicit entry fees ("We want to see how good your art is!") with no actual contest. [I]3. States and the federal government have a multitude of ways of regulating sweepstakes and contests. [/I]Legislatures are reactionary; something bad happens, and "there has to be a law!" So as all of this gambling and fraud was publicized for decades and decades, laws were passed- and they are different in different states, and different for the federal government (which I will ignore from now on, other than to say that the FTC concerns itself with these issues). So in one state, a person might have promised a huge prize that didn't exist, and that state passed a law requiring sweepstakes organizers to post a bond. In another state, they might have specific rules about contests & sweepstakes involving alcohol. Other states might have barred the "get you in the door" sweepstakes (no requirement to visit a store). And so on. [I]4. The different states are really different. [/I]But it doesn't end there- in addition to the specific laws on sweepstakes and contests, the state will have more general laws that might apply- and these laws vary from state to state. Finally, if there are terms and conditions- which will be a unilateral contract (the sponsor offers a prize, the participant accepts the offer by entering the contest), the contract will be construed by state laws ... which are different. [I]5. If it's that hard, how can companies run these things? [/I]Well, reputable companies protect themselves through a contract. And back in the old days, it wasn't that hard. A company would start small, and run some type of thing, and no one would care if they weren't obeying every single rule. As they grew, and became more of a target, they were still located within a single state- so they didn't have to worry about all of the states. If they continued to get big, and were operating around the US, then they were big enough to hire fancy pants attorneys to make sure they were covered if they wanted to run a nationwide sweepstakes. But you can immediately see the problem- it's not the old days. Today, with the internet, even the smallest businesses are selling across the US (and sometimes around the world). And the contests and sweepstakes? Yeah, those will have a much bigger reach. [B]B. The D&D Beyond Controversy[/B] [I]1. D&D Beyond was pilloried for acquiring the rights to all the art entries in a contest.[/I] If you look back at the thread, and the D&D Beyond controversy, you see that the issue (as Morrus put it in the OP) was that "Competitions where the company in question acquires rights to all entries are generally frowned upon[.]" As presented, this was one of those, "Yay, labor" moments. Which I can totally get- I literally just wrote a long post about how people should hold companies more accountable for their labor practices. And it sounds terrible, right? "Evil derpcorp outsourcing all their art for a pittance; working artists get screwed again." ...And yet, I didn't quite understand it. Because America is a litigious place, and companies need to protect themselves. For example, any service you use that allows you to upload your photos will have very expansive licensing rights for those photos- you are welcome to look at facebook/instagram, google photos, or ... any single place. Part of that makes sense- if you upload a photo to facebook that you made, you have the copyright in that. If facebook shares that photo to someone else, that can be an issue for them (because facebook is a monetized platform). Multiple the number of users on facebook ... and you get the idea. On the other hand, there are very real concerns about the scope of some of those licenses and what companies might be doing. But this didn't make sense. This looked like it was a simple fan contest. I think there are very good arguments that companies should not be running these types of contests at all, but ... I think it was intended to solicit non-professional work for fun, not for any sinister purpose, and that the use of standard licensing language did not make it evil. And yet, no one had posted the language they used ... or had gotten hold of Phil Ken Sebben. [I]2. D&D Beyond was using marketing software to generate the contest and the terms & conditions (T&C).[/I] If you look at the actual T&C for the contest that is linked to in the OP, something pops out immediately- it's not ... quite ... right. It's apparent in all sorts of ways, but I'll use a single example. Remember that whole spiel about protecting companies and litigation in the U.S.? As soon as you look at this document, you'll see paragraph 12- which is "Disputes." Notice that it refers to the United States, twice. Both that the laws of the United States are used, and that an action will be brought in the United States. That's profoundly weird. I'm not going to go into why- but it is super weird (and you can look at the Apple one I posted to see what a normal one would look like). So I looked at the last thing that was run by D&D Beyond- it wasn't a contest like the art contest, it was a sweepstakes. The T&C are linked to as well. And you know what? It was the exact same. They were using the same weird language for both. Even though sweepstakes and contests are not the same thing, and come with different issues. Which meant that this wasn't a case of evil derpcorp stealing art, but something far more interesting and weird. And that's where we get to Gleam. [I]3. Gleam makes all your marketing dreams come true. [/I] Gleam is the company, based in Australia, that runs competitions (contests & sweepstakes, so I don't have to keep writing that). They have a gorgeous website, and if I was into marketing, I would totally buy what they are selling. You can integrate with social media, I'm sure that there are synergies involved, and there might even be a pivot to video somewhere. I am starting to make jokes again- but it really does look like some cool marketing software that would help drive engagement and (holy grail time) get more information about the users. Cool cool. However ... Gleam lets companies (like D&D Beyond) run competitions on social media and have those embedded in your website in under three minutes. And part of doing that is that they will create the T&C for you through a template. That's right- no one made the T&C. It was auto-generated. Which is why ... it's weird. [B]4. What really happened?[/B] I don't know. But if I had to hazard a guess, I would say that people in marketing in D&D Beyond (and/or people running the social media) found this great new way to drive engagement. 'Cuz it is! And no one cared about the T&C, which was auto-generated, until it became a controversy. Once it became a "thing" someone higher up the food chain (D&D Beyond was owned by Curse, but apparently Fandom bought them?) probably looked at the T&C and said, "Woah now. Let's take a big step back." But it wasn't really about the art, ever. Sad as it is to say, I am quite sure almost no thought was given to the contest itself. They had a successful sweepstakes, and then someone said, "Hey, let's celebrate some fan art ... and drive engagement!" Given that it likely really isn't about the art, a limited-time irrevocable license (one year from the competition) along with a more carefully-crafted real T&C would likely alleviate the issues. But who knows? That's up to them. [B]5. Is there any big picture takeaway?[/B] Kinda. I'm not really into the whole "social media" thing (or the whole "social" thing) but I do know that there are a lot of competitions on the internet, and there seem to be more and more of them. If I had to hazard a guess, I'd say that there are competitions that don't even bother with weird T&C, or aren't in compliance with something, somewhere, and may be doing the things that these rules are meant to prevent (fraud, etc.). Be careful out there, and look to reputable places. [/QUOTE]
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