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

[pemerton]

Frylock, thanks for joining in! I remember your columns on the GSL, which I found interesting and enjoyable. Given what I see as a tendency on these forums to overreact to fairly banal contractual and licence terms, it's good to have a practising lawyer providing ideas and interpretations. (Unfortunately XP is disabled at the moment.)

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.

In Victoria the general limitation period on contractual actions is 6 years, with no difference between oral and written agreements. I don't think other Australian jurisdictions draw this sort of distinction either - we do have writing requirements on some contracts and assignments (derived mostly from the Statute of Frauds) but they're not applicable in this context, and don't affect the limitation period.

a FAQ can't override an enforceable contract. Reliance on it is often misguided unless the contract is unenforceable.

In Australian law, an FAQ could set up an estoppel against the party who published the FAQ, especially in this sort of context in which the contract has been drafted by the FAQ-publishing party without opportunity for negotiation of the terms by the other party.

But I have no idea how estoppel works (if at all) in US private law!

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.

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.

The way I read the confidentiality clause is that they want the text to remain confidential, but want discussion about the text and the experience of playing with it to be public.

That leans towards suggesting that you may not literally cite playtest materials in ENWorld (or other) threads.

I think this is definitely the case. It has produced some slightly odd experiences for me: normally when I want to talk about a contentious rule I will quote the text with a page reference (an academic habit!), but in this case I find myself having to paraphrase, because the OPTA prohibits direct quotation.

When providing feedback to WotC, the situation would obviously be different - in that context, I think quotation would be OK.

WotC is telling you to do your homework. Make sure that everyone around the table

I think if you were playtesting with people who hadn't agreed to the OPTA, you'd be violating the confidentiality clause if you showed your character sheet, or any part of the rules documents, to those people - because under that clause you agree not to "display" the playtest materials.

In other words, the point isn’t in the legal minutia, but rather in interpreting what WotC is asking of you.

Sure, I don't disagree with that at all. My view is that the OPTA is a pretty reasonable attempt by WotC to maintain (i) a degree of control over their IP, and (ii) a degree of control over the playtest. The only way they can achieve (ii), given that they are a private actor, is to try and create rights under contract. Which is what I read the OPTA as an attempt to do.

 

[pemerton]

Even if I bought that (or more importantly thought a Judge would buy that), where in the OPTA does it cover this?

WHere you agree that you won't "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".

If that were true, then you couldn't argue the rules and quote the book to support your argument, since you'd be reproducing the book via soundwaves to your tabletop buddies.

I think.

You're not correct about this. I'm not an expert on copyright under US law (or Australian law for that matter), but I'm pretty confident that mere oral communication won't count as creating a copy, anymore than it does under Australian law. If that were turned into a recording or a broadcast, the matter would be different.

I own lots of books. Reading them aloud is not a breach of the copyright authors and publishers enjoy in respect of them. Reading them onto an audio recording would be a different matter.