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

[Frylock]

Have you read the accompanying FAQ? I quoted various bits of it above. What WotC wants is made abundantly clear there in plain English: they want you to discuss your playtest experiences publicly anywhere you wish. They say that explicitly, so there's no doubt as to what they want.

Whether the EULA (which is what it resembles more than anything else) accomplishes that effectively is arguable, but their intention is pretty clear.

Yes, I read their FAQ, and my first draft of the article discussed it. I removed it because a FAQ can't override an enforceable contract. Reliance on it is often misguided unless the contract is unenforceable. However, it's certainly relevant to someone coming from my point of view. Let's assume it's relevant. Here are some interesting quotes.

How will I provide feedback on the playtest materials?
You will periodically receive links via the email address you provide for your Wizards.com account to take surveys about the playtest materials. Just answer the survey questions and hit “submit”. You can also provide feedback through polls contained in many online articles discussing D&D Next. Look for playtest-related articles on DNDNext.com.

So, it appears "feedback" (whatever that means) can be provided, and the means for which is spelled out: Either "respond to our surveys or answer our polls in our online articles." In other words, "feedback" is to be limited to official WotC channels.

Can we run this playtest at home or is it only in stores, like D&D Encounters or D&D Lair Assault?
You are welcome to run the D&D Next playtest at home. However, all members of the group must follow the official sign-up process at DNDNext.com and agree to the terms and conditions for playtesting.

Ahem.

Where can I go to talk to others who are playtesting? Is there a forum or discussion area?

Feel free to discuss your thoughts about your D&D Next playtest experience anywhere. We have also created a dedicated D&D Next playtesting forum on our community site located here: community.wizards.com/dndnext which is a great place to connect with other playtesters.

So yes, according to the FAQ, it's clear WotC doesn't mind you using ENWorld "to discuss your thoughts about your D&D Next playtest experience." Is that different from "feedback"? Maybe. "Feedback" could include things that WotC wants you to keep confidential, such as game rules otherwise not protectable, but perhaps also the content and format of stat blocks, the classes and races included, etc. Your "thoughts" might be restricted to high level, obscure statements like, "Gee, I really like this D&D Next stuff." On the other hand, feedback could simply refer to your "thoughts" when they're expressed to WotC developers directly; however, that would still leave a gaping hole as to what's to be kept confidential, and the FAQ is silent on confidentiality. So, without a clear definition provided by WotC themselves, that leaves things a little difficult to interpret, and a judge would interpret them against WotC (again, assuming a judge would even consider the FAQ).

But now I'm getting to bogged down in legalese again. No one's getting sued. The point is that WotC has made the following statement: They want you to keep things in confidence while publicly discussing whatever you want about those things. I'm trying to interpret that ridiculous statement, resolving the paradox it creates as reasonably as possible, and WotC isn't helping me in the effort.

I understand your interest in interpreting that statement to allow your forum users' right to discuss everything here (excepting copyright infringement, of course), and for now, you're probably right because of the ambiguity and questionable enforceability of the confidentiality clause. However, you should understand that I'm addressing a question that's a bit larger in scope than that, and I suspect WotC might clarify their position in the future. When and if that happens, then we might have to watch our step.

 

[Frylock]

For some reason, I'm not permitted to edit my posts. Please forgive any typos. My laptop keyboard occasionally misses my keystrokes, as I type very quickly.

 

[enrious]

Wizards stopped being my friend with the OPTA and accompanying FAQ.

That out of the way, does epistemology trump law? Or, to put it another way, does the OPTA in any way, shape, or form, place any burden on me to ensure that I'm playing with other people who've signed up for the playtest?

If not, then why does venue matter?

 

[Frylock]

Or, to put it another way, does the OPTA ... place any burden on me to ensure that I'm playing with other people who've signed up for the playtest?

Yes. How much of a burden, I'm not sure, but WotC is telling you to do your homework. Make sure that everyone around the table. I repeat, though, that I don't expect any lawsuits over OPTA.

If not, then why does venue matter?

Because by restricting venue to in-person games, you're bound to make sure you're playing with "legal" playtesters even if you aren't trying. What you do with that knowledge is another matter.

BTW, as a follow up to my previous response to Morrus, I found another statement from the FAQ that's important:

Am I allowed to make copies of the playtest materials or publish parts of them on my blog?

As part of your participation in the D&D Next playtest, you must agree to our playtesting terms and the Online Playtest Agreement, which prohibits copying, excerpting, redistributing and the misuse of playtest materials. (This does not limit participants from making copies of playtest documents for the sole purpose of sharing them with their gaming group provided they have all signed up to playtest D&D Next.) For more information, see the Online Playtest Agreement.

In other words, personal blogs that discuss the actual content of the playtest materials are a no-no. That leans towards suggesting that you may not literally cite playtest materials in ENWorld (or other) threads. All you can do is make high-level statements about your experiences. Again, this is all subject to ambiguity, the FAQ doesn't override the contract, and the contract has serious problems with it. I'm not forming a legal opinion, or even suggesting WotC will send you a letter, but rather expressing what I think WotC wants from you. Maybe they should clarify that, but because they don't really care, they probably won't.

 

[Matt James]

Interesting Tweet. When did this thread turn into a controversy?

[MENTION=25792]Trevor[/MENTION]_WotC [MENTION=32417]MikeM[/MENTION]earls Any chance you'll address the controversy over the OPTA? [MENTION=1]Morrus[/MENTION] could fill you in if you aren't aware. #dndnext

 

[pedr]

In the OPTA you agree not to (among other things) "publish ... or transmit" the materials.

I think it is clear that the agreement means that each person is responsible for their own copies of the material and that - odd as it may seem - no-one should give character sheets or any other material to anyone else, even if they have positive knowledge that the other party has also agreed to the OPTA.

Playing the game over any form of telecoms network (except, perhaps, the public telephone network) is difficult to legally distinguish from 'transmitting'. You are sending the material (whether in aural or text format) to a third-party which is has not agreed to the OPTA, and that third party is then transmitting it to the recipients.

I must admit, I would have expected the Confidentiality section to include a clause whereby you agreed in terms to 'keep the material confidential'. I believe the earlier NDAs had that kind of language.

One thing that's important to note - confidentiality has a separate existence to copyright. I believe that you can agree to keep confidential things which are not capable of being subject to copyright (such as the recipe for Coca Cola, as Frylock mentioned on Loremaster). While it seems odd that a 'public' playtest could have confidentiality attached, each person who has agreed to the OPTA has agreed to some form of confidentiality clause and is probably prohibited from using the information gained from participating in the playtest for an alternative purpose. WotC will never have a copyright in any of the new mechanics in D&D Next (as distinct from the expression of those mechanics) but I think that participants in the playtest have agreed not to make use of those mechanics, for instance in any game they are designing, even though were it not for trade secret/confidentiality rights they would have the legal right to do that. Someone who has not accepted the OPTA is not bound by it, and has not agreed not to make use of that material.

As an aside, I think I also disagree with Rob about the consideration point, but as he says it's a) not clear and b) not actually important - if the agreement isn't binding, we have no right to copy the files from WotC's site to our computers or make physical copies by printing them.

(But I'm a long way from being an IP/trade secrets expert!)

 

[Frylock]

(But I'm a long way from being an IP/trade secrets expert!)

I don't know. That wasn't bad.

 

[enrious]

Interesting Tweet. When did this thread turn into a controversy?

Doesn't have to be a big affair. Indeed, M-W defines it as:

A discussion marked especially by the expression of opposing views

 

[Frylock]

Trevor Kidd Responds

FYI, Trevor Kidd has responded to my article. If you're interested, please go here. I imagine that this won't be the last we hear from WotC on this, but for now, it's our only official response.

 

[enrious]

FYI, Trevor Kidd has responded to my article. If you're interested, please go here. I imagine that this won't be the last we hear from WotC on this, but for now, it's our only official response.

Lot of interesting things on that page.

I'd like to thank you and Trevor for the time spent.