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Don't Worry About Breaking the NDA
cumbom
Member CommonPosts: 544
I posted this in the general forum but thought you all should see it too so we can start hearing all about the travesty this Beta probably is.
Recently
I have seen many instances where people have hinted or threatened that
beta testers are subject to legal action if they break a non-disclosure
agreement (NDA).
There are some things that gamers and beta testers should know about NDAs.
Wikepedia defines a NDA as:
But to what extent are these NDAs even binding?
A NDA is a form of contract and not all contracts are legally binding.
For a contract to be legally binding it must:
many beta testers may not be of competent capacity because they are too
young in their jurisdiction to legally enter into a contract, but for
everyone else if all elements of the contract are there, the contract
is legally binding.
For instance if you are a beta tester for a
game such as, oh I don't know, Roma Victor and you sign a NDA, then you
are giving them consideration, that consideration being that you will
not reveal anything about the game.
But what consideration are they giving you? For this NDA to be legally binding the consideration must be mutual.
A
gaming company might say that the consideration is that you are allowed
to play their game, but the truth is that the purpose of a beta tester
is to BETA TEST
regardless of the fact you get to try the game you are doing it in the
capacity of a suedo employee. It is extremely unlikely that this
argument would be considered valid in court.
Imagine if you went
to work for someone and they told you they don't have to pay you
because the priviledge of working for them is consideration and
compensation enough.
Probably not a valid employment contract huh?
So
if you signed a NDA and are not recieving any consideration as per the
agreement, then you are not bound by it in any legal sense, however the
company is completely within its rights to strip you of your beta
account and access.
Now while reading on the forums of MMORPG.COM I came accross a developer who, jokingly or not I'm not sure, mentioned the option of suing for libel.
Gamers, and testers, and the general public should be informed as to what exactly constitutes libel or slander.
Libel
and slander are what constitute defamation. Libel is defamation that
can be seen, such as in writing, printing, effigy, a movie, or a
statue. Slander is any defamation that is spoken and heard.
But for something to actually be considered defamation it must first and foremost BE FALSE! If what is said is not false then it is not defamation and cannot be libel or slander.
Now
this is just the basic principle and main defense to any libel or
slander suit. Particulars may vary in different jurisdictions, but this
demonstrates that as long as what you say is true you are protected.
Gaming
companies these days, like many other companies tend to rely on the
ignorance of their consumers in order to have them act or agree to
things that they have no real right to do.
In Ontario, where I
reside, I liken the actions of companies to that of Landlords here who
constantly include cluases in Leases that contravene the Tenant
Protection Act.
For example it is not permitted for a Landlord
to ask for post-dated cheques, or require the tenants sign an agreement
that they will have no pets in their apartment, but these are very
standard clauses that are still in the majority of Lease Agreements.
It
is important to note that players who are paid to beta test a game are
recieving consideration and so the NDA is a legally binding contract.
Also if a gaming company agreed to pay every beta tester 1 cent for
their accepting the NDA then the mutual consideration would be
fulfilled and the agreement would be legally binding.
Why Non-disclosure Agreements Mean Squat
Recently
I have seen many instances where people have hinted or threatened that
beta testers are subject to legal action if they break a non-disclosure
agreement (NDA).
There are some things that gamers and beta testers should know about NDAs.
Wikepedia defines a NDA as:
a legal contract between at least two parties which outlines confidentialityGaming companies often require beta testers to sign NDAs or agree to them in some electronic form.
materials the parties wish to share with one another for certain
purposes, but wish to restrict from generalized use. In other words, it
is a contract through which the parties agree not to disclose
information covered by the agreement. An NDA creates a confidential
relationship between the parties to protect any type of trade secret. As such, an NDA can protect non-public business information.
But to what extent are these NDAs even binding?
A NDA is a form of contract and not all contracts are legally binding.
For a contract to be legally binding it must:
- Be signed by someone of competent capacity.
- Have a lawful purpose.
- Contain consideration for all parties involved.
many beta testers may not be of competent capacity because they are too
young in their jurisdiction to legally enter into a contract, but for
everyone else if all elements of the contract are there, the contract
is legally binding.
For instance if you are a beta tester for a
game such as, oh I don't know, Roma Victor and you sign a NDA, then you
are giving them consideration, that consideration being that you will
not reveal anything about the game.
But what consideration are they giving you? For this NDA to be legally binding the consideration must be mutual.
A
gaming company might say that the consideration is that you are allowed
to play their game, but the truth is that the purpose of a beta tester
is to BETA TEST
regardless of the fact you get to try the game you are doing it in the
capacity of a suedo employee. It is extremely unlikely that this
argument would be considered valid in court.
Imagine if you went
to work for someone and they told you they don't have to pay you
because the priviledge of working for them is consideration and
compensation enough.
Probably not a valid employment contract huh?
So
if you signed a NDA and are not recieving any consideration as per the
agreement, then you are not bound by it in any legal sense, however the
company is completely within its rights to strip you of your beta
account and access.
Now while reading on the forums of MMORPG.COM I came accross a developer who, jokingly or not I'm not sure, mentioned the option of suing for libel.
Gamers, and testers, and the general public should be informed as to what exactly constitutes libel or slander.
Libel
and slander are what constitute defamation. Libel is defamation that
can be seen, such as in writing, printing, effigy, a movie, or a
statue. Slander is any defamation that is spoken and heard.
But for something to actually be considered defamation it must first and foremost BE FALSE! If what is said is not false then it is not defamation and cannot be libel or slander.
Now
this is just the basic principle and main defense to any libel or
slander suit. Particulars may vary in different jurisdictions, but this
demonstrates that as long as what you say is true you are protected.
Gaming
companies these days, like many other companies tend to rely on the
ignorance of their consumers in order to have them act or agree to
things that they have no real right to do.
In Ontario, where I
reside, I liken the actions of companies to that of Landlords here who
constantly include cluases in Leases that contravene the Tenant
Protection Act.
For example it is not permitted for a Landlord
to ask for post-dated cheques, or require the tenants sign an agreement
that they will have no pets in their apartment, but these are very
standard clauses that are still in the majority of Lease Agreements.
It
is important to note that players who are paid to beta test a game are
recieving consideration and so the NDA is a legally binding contract.
Also if a gaming company agreed to pay every beta tester 1 cent for
their accepting the NDA then the mutual consideration would be
fulfilled and the agreement would be legally binding.
SWG RIP
moctodumegws
Can't WAIT!
Comments
Thanx for an interesting read.
I also questioned the 'legality of the bind' with respects to the NDA for the 'stress test', which is just text on a loading screen.
What I found more of a concern were the terms 'expelled from the communities', a threat that I think is the real driver behind players remaining silent and maintaining this NDA.
EDIT: Spelling
i doubt that people ever even feared legal action if they broke NDA. Biggest worry is that you would be kicked out from beta and access, and risk getting any future beta invites. Also, many belong to some guild or clan and one breaking NDA could end up whole guild being kicked out.
SWG RIP
moctodumegws
Can't WAIT!
Nice write-up Cumbom. A couple of points are incorrect but they are fundamentaly valid.
1 Cent is not sufficent compensation to be considered a salary for work proffered. For example in the US if the company wants to pay you to beta test then if you do it full time they have to meet minimum wage standards, 1 cent won't hack it and no court would allow that as just compensation. I doubt even a court in China would buy that one.
Additionally entering into an illegal agreement (such as your pet clause you mention) makes a contract invalid. You can't legally enter into an illegal agreement, cut and dried and I know of no civilized country that allows this to happen.
As I have said before on many boards for many years, the average MMORPG and gamer is totally ignorant of the law and believes everything they read / hear on the net. These companies CAN'T write law and nothing you do in their games is "ILLEGAL" but you read people constantly saying that an exploit (another pet peeve of mine) is "ILLEGAL" and that you can be sued. Well ROFLMAO.
Anyway, time to pop some more popcorn and continue watching the slow motion implosion of Deceit and Lie.
SWG RIP
moctodumegws
Can't WAIT!