Thanks for your comments and questions about my article. I want to clear up a few things. First, the point of this article isn't the unenforceability of the agreement. The point of this article is trying to understand what WotC wants of you whether it's enforceable or not. However, on the subject of enforceability, I go into much more detail, involving far more legalese than you want to read, in a couple of responses to questions posed on the
Loremaster thread. In short, WotC isn't in the business of suing its playtesters because they're playtesting, and I’m still torn over the question of whether consideration is valid. If you really want to understand why, go back to the
Loremaster thread. Again, though, whether it’s enforceable isn’t the point. What you, as friends of WotC, want to know is what they’re asking of you.
So wait, I'm still unclear (or maybe just incredulous) on one point: we're not supposed to be discussing the playtest at all outside of official channels? The lawyer guy advises not even talking to other playtest groups about your experience. So the entire ENWorld New Horizons forum is breaking the OPTA? Or am I missing some fine legal distinction?
I did not advise you against talking with others. As so many of you have pointed out, I doubt the (written) contract is valid, so obviously I’m not advising you on how to behave under it. I’m simply stating what I think WotC is trying to say with it. However, I do provide my interpretation of the language:
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First, it appears that having after-playtest discussions via email, even with your playtest group, are in violation of this agreement. The ridiculousness of this conclusion would probably prevent a court from punishing you, and I’d be very surprised if WotC actually opposed it. Still, they probably should have taken the time to make this clear.
Moreover, as I point out later (and Morrus states in response to you), that term contradicts another within the document. Ambiguities in contracts are interpreted against the drafter. In other words, because WotC drafted the contract, and because the terms contradict, a judge would likely say you’re permitted to have those discussions. However, it’s unlikely a judge would ever get involved because WotC isn’t really trying to keep you from discussing your playtest with other playtesters. That’s not the point. The point is that WotC wants you to have "written" discussions with playtesters
not in your group on their site so that they don’t miss any of your feedback (and, most likely, so that they can exercise control over the discussion). Whether they can reasonably expect to enforce this (valid contract or not) is a whole other issue and beyond the scope of my article (though they are using the leverage of IP law to help in that regard).
In my opinion, you have clear permission to discuss D&D Next anywhere you like as long as you don't reproduce or redistribute the materials.
I know you desperately want this to be true
, and it probably is because of the ambiguity in the contract. The permissive nature of the statement is merely allowing you to shift the burden of reporting feedback to a single person in your group. You don’t have to report feedback unless you want, but if you do, you’re given permission to do so (by the Feedback session) on WotC forums. That being said, it seems odd that you interpret a “confidentiality” provision as giving you permission to discuss anything you want publicly. How could that possibly be correct? In what way does that maintain confidentiality?
Taken as a whole, the only reasonable interpretation is that WotC wants you to keep written communication on official WotC channels, but oral communication (i.e., those where it’s impossible to redistribute physical copies of their materials) are fair game. Again, it’s so sloppily written, I doubt anyone’s getting sued, and I doubt WotC really cares. They’re just trying to keep as much written conversation in house as possible.
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?
This is off-topic for me, because,
as I said in the article, OPTA doesn’t address online play. However, I did briefly mention it and answered your question in the article. It’s different in theory only. If you’re making a good faith effort to play by WotC’s rules, you’ll easily be able to do that if everyone playing is sitting in front of your face with their own copies of the materials (though even this could be fudged, obviously). If you’re playing online, there’s no way, even in theory, to check that. This is more about WotC playing the odds, doing the best it can to assure compliance in a situation in which is impossible to do so.
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.
LEGALESE ALERT: In Virginia, when there’s an unsigned written contract, but clear evidence of an intent to contract under those terms, an oral contract can arise with exactly those terms. Nevertheless, the written contract is deemed void, and this is no small distinction. In Virginia, written contracts have a 5-year limitation, but oral contracts have only a 3-year limitation. So, in Dixon v. Hassell & Folkes, P.C. (Va., 2012), even though the oral contract was deemed to be identical to the written contract, because it was unsigned, the written contract didn’t really exist. Thus, my statement in the article that, even if unenforceable,
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you can fairly use it to predict whether WotC will choose to send a C&D or sue, and whether a court would take their side or yours if push came to shove.
I also remind you of this quote:
Me said:
As a license, it's subject at least in part to state laws, so I’m making some broad statements that might not apply in your state, using Virginia law only as an example. I probably can’t address the OPTA’s impact on your playtest thoroughly. Nevertheless, I’m willing to try because I'm reporting what I suspect to be what WotC is thinking.
In other words, the point isn’t in the legal minutia, but rather in interpreting what WotC is asking of you. Your discussions should be focused on that, unless you're trying to find technicalities on which to screw WotC.
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.
I’m not sure about my position either. Again, I point you to
my discussion in the comments.
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.
Interesting point, and given that WotC drafted the contract and it’s drafted rather poorly, it certainly could be interpreted this way. I’m not convinced it
must be interpreted this way, but within the context of the entire agreement consisting of, among other things, a confidentiality term permitting public discussion (????), I’d say that interpretation is likely to fly. Nevertheless, I stand by my statement that WotC would prefer that you provide feedback on their forums so they have easy access to them. That's the question I was asked to answer with
the article.
Thanks to all of you for your comments. However, I respectfully request that all further feedback on my article be restricted to the Loremaster forum.
Just kidding.
