D&D 5E Protection from Chaos Part XI: The D&D Next Online Playtest Agreement

[enrious]

I agree with you here. And, as Morrus says, it's under review, and I imagine that, by the next round of playtesting at the latest, we'll see some change here. I could be wrong, but, I remain somewhat optimistic.

I'm hoping that they will clarify and make it less restrictive. I think it's a matter of who wins - the left hand or the right hand.

However, as to your F2F experience - did you provide the character sheets for everyone? Anyone who brought any material obviously had signed the OPTA, so, that's a pretty sure way to tell.

Actually, I know this to not be true after a comment overheard and verified of a naughty method of obtaining the materials without signing/agreeing to the the OPTA. In fact, the link in the OP mentions another.

As it was, no, I did not provide any sheets - they were printed out ahead of time and I thus have no knowledge of their origin.

Now, if you handed your printouts to someone else, my reading of the OPTA would interpret that to mean that you are actually obligated to ask if they've signed in since you've agreed not to share with anyone who hasn't signed.

Am I off base with that?

My reading of it actually precludes even this - "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."

I don't see any permission to give such materials to people who are also signatories.

Even if they don't have printers...

 

[pemerton]

Where he talks about the lack of signatures and identification rendering it unenforceable. How does that compare to a common EULA, which also has no signatures or identification?

I teach private law at an Australian university, though equity and trusts rather than contract.

In general, it's not a requirement under Australian law that a contract be signed. Even if the terms of the contract have been reduced to writing (as in this case) there's no general requirement that it be signed.

I don't know much about EULA agreements. I know there is a fair bit of hostility towards them among IP academics, but not because they are not valid contracts, but rather because they are valid contracts whereby users get duped into waiving rights that they otherwise would enjoy under the general laws of IP.

As to the bit about absence of consideration rendering the agreement not enforceable as a contract, I'm not sure I agree with that either. WotC provided something to me: namely, they sent me an email with a link to a site where I could download some documents, and then they hosted that site. In return, I provide something to them: a promise to abide by the terms of the OPTA.

The idea that my receipt of the documents isn't valuable consideration because I have to do the (unpaid) labour of playtesting strikes me as weak, given that I am under no obligation to undertake any playtesting.

I would also tend to favour a different construction of the "Feedback" clause from that offered by the columnist: I don't think that it is imposing a burden on playtesters. The burden on playtesters is imposed via (i) the background law of IP, as the columnist explained, and (ii) the confidentiality clause, which - to the extent that it is effective - limits what you can say about your playtest experience.

The Feedback clause, as I read it, is actually a promise from WotC to the playtester - as the preamble states, they normally do not accept feedback, but on this occasion they promise to accept it. I'm not sure what that promise is worth - for example, suppose that they in fact refused to accept your feedback, and you sued them for breach of the OPTA, I'm not sure that the damages you'd receive would be very high! Why do WotC make this promise? Perhaps to increase the consideration that they are providing to the playtester, in order to better underpin the contractual character of the agreement.

I also noticed the bit about "designated forums" for feedback. This seemed contradicted to me by the clause at the end which said you were welcome to discuss your thoughts publicly: "Notwithstanding the foregoing, you may publicly discuss your thoughts regarding the D&D Next Playtest Materials and your playtesting experience." How do those two stack up?

As I've just explained, the Feedback clause isn't a burden on the playtester. It's a promise from WotC to recieve playtesters' feedback. It gives you, as a playtester, a right to have your feedback received, in spite of WotC's normal practice (as stated in the preamble to the document) of not receiving feedback.

Regarding the online playtesting. My understanding at present is that the restriction is in place because it entails reproducing the content of - at the very least - the adventure, and they don't want people who haven't essentially agreed not to republish (prepublish?) it being able to see it (the non-effectiveness of that notwithstanding - that's what the intention is). However, they are reviewing that at present.

This strike me as right. Going online almost by definition involves producing copies of some of their IP - it will be copied as text or image or as a digital encoding of an oral recitation of it - and they don't want that to happen.

For similar reasons I assume they wouldn't want people tape recording or videoing their playtest sessions.

 

[pemerton]

My question about a possible conclusion being drawn about prohibiting online play is that strangers (who may not have signed up for the playtest) may participate and therefore be exposed, but how is that any different from my offline experience?

I thnk the issue about online play is that it involves copying their materials - by reproducing it in text form, or by reducing an oral version of it to digital form.

 

[pemerton]

I believe the legal analysis published above to be wrong in this regard.

Agreed, as I explain in my post above. I'm also a bit doubtful about the claim that there is no enforceable contract due to the lack of signature and insufficiency of consideration. But perhaps the law of Virginia is less permissive in these respects than is the law of Australia.

 

[enrious]

I thnk the issue about online play is that it involves copying their materials - by reproducing it in text form, or by reducing an oral version of it to digital form.

WOTC sez:

"Can I run an online game via email, Skype, Google Hangout or a play-by-post forum?

No, you may not run an online game on third parties sites at this time."

If I run a game via Skype that does not make use of any feature of Skype save the audible component (i.e. we're talking), then how are we "reducing an oral version of it to digital form."?

If the argument is that the voice is translated into 1s and 0s, then are there prohibitions against audibly/digitally recording a game session?

 

[Zireael]

A friend of mine was going to write an article in Polish about his perception of D&D Next playtest. I was going to sign up and contribute to it... but then the article linked by the OP showed up.

We were going by the FAQ and we did understand that "writing about D&D Next mechanics is OK as long as we don't C&P"...

So, can we write an article - stuff like 'The armors work poorly because there's no reason to use medium armor; heavy armor is nearly useless because the bonus doesn't outweigh the lack of Dex bonus' etc. - or not?

Note, we discuss specific points of D&DN, but we don't Copy and Paste the rules themselves...


I'd reallly like an answer...

 

[pemerton]

If I run a game via Skype that does not make use of any feature of Skype save the audible component (i.e. we're talking), then how are we "reducing an oral version of it to digital form."?

If the argument is that the voice is translated into 1s and 0s, then are there prohibitions against audibly/digitally recording a game session?

You answer the question yourself - the audio statement of the rules/materials is recorded in digital form.

And yes, as I posted above, I think that video and audio recordings (digital or otherwise) would also be precluded as unauthorised copies.

 

[JeffB]

This is my whole point

If WOTC were smart, threads like thiis would not need to exist. It only confuses and aggravates people who want to talk up the game.

 

[Hussar]

/snip
My reading of it actually precludes even this - "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."

I don't see any permission to give such materials to people who are also signatories.

Even if they don't have printers...

That's a bit different though. Printing out a character sheet and filling it out is not a "derivative material". The part you quote is about you taking the playtest document and making your own game (derivative material). Using something for the purpose for which it is created is not derivative.

At least, that's my understanding.

This is my whole point

If WOTC were smart, threads like thiis would not need to exist. It only confuses and aggravates people who want to talk up the game.

I agree with the frustration, but, let's be realistic as well. WOTC cannot afford to screw this up on the other side either. If they did what Paizo did and have a completely open playtest, everybody and their brother would be printing a "D&D The One After" within days of release.

Paizo could get away with it in 2008 because, at that time, who was Paizo? Some little d20 company that wanted to retread d20. And, since most of the mechanics were already OGL, they couldn't really do a whole lot about it. Sure, people could have make PathLooker, but, at the time, no one knew that it was going to be as successful as all that.

Go back to the early days of 3e and you'll see Sword and Sorcery Press smacking "Core Rulebook" on the cover of their d20 product. That was something that got nixed in a hurry. In today's environment, loopholes like that could be very damaging.

So, WOTC's kinda stuck between a rock and a hard place. They can't simply have no restrictions because that's suicidal from a business stance, but, any restriction they make will be viewed very critically, mostly because they have so little customer good will to burn.

 

[filthgrinder]

I don't mean to call into question the expertise of the article's author, but I think this might not be his area of expertise. Law, and even contract law, is a broad field, and very complex.

To echo Morrus, how does this differ from a EULA? By information provided by the article's author, those are also missing key elements to make it enforceable. They are missing, named parties, signatures, consideration, etc.

I think we, as a gaming community, need to look for a second opinion from someone who specializes in this field.

We need to remember that WotC is owned by Hasbro, a publically traded corporation. As such, they have obligations to their share holders to protect the value of their brands. "Giving away" elements of the game, is something that their legal team is required to review, and make sure is done in a careful, considered way, that protects the brand, and the intellectual property of that brand. Just putting up zip files of PDFs and saying, "Go have at it" may be seen as the way to do it, by us arm chair quarterbacks, but that might not really be the case. Providing a playtest agreement is smart and probably the right way to do it.

That being said, some parts of this analysis strike me as odd, since they contradict normal business practices (companies providing an EULA). I'd like to hear the input from someone who works in the legal department of a software company authoring EULAs and see their thoughts on it.