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Non-Disclosure Agreements: A Necessary Evil

As consoles become more connected, so too does our access to unfinished games. I’m not talking about day one patches (they are an issue unto themselves), but rather the increasing number of betas to which we now have access. I can’t for the life of me remember any other time when gamers were given access to test game builds so early and so often. Maybe it has always been like this and I’m finally paying attention, but it doesn’t really matter because that’s not what I want to talk about.

Instead I want to talk about those damn Non-Disclosure Agreements that always seem to be attached to betas, and how despite being annoying, they are a necessary evil. To those of you who are unaware, a Non-Disclosure Agreement (NDA) is exactly what it sounds like: an agreement between the Publisher/Developer and the player who in exchange for access to the beta provides feedback, does not disassemble or tinker with any of the game’s mechanics/systems, and does not leak, disseminate, distribute, or otherwise disclose any information about game not otherwise made public by the Publisher or Developer. There is more to it than that, but you get the idea. In general, it is only the latter part of this list that will impact the average gamer, and by agreeing to the NDA means no tweets, videos, articles, etc. about the beta or you risk having your access revoked. And by preventing beta participants from sharing their experiences outside of authorized channels, Publishers and Developers stand a better chance of preserving and protecting their unreleased intellectual property.

Fundamentally, NDAs exist because it means that other Developers or Publishers can’t just go ahead and blatantly rip off an idea that might be a central mechanic/component to a game undergoing a beta test. This actually resonates quite well with what we are currently seeing with Day Z and The War Z. If, for example, Day Z were in a closed beta phase until say the standalone version was released (yes, I know, not possible because it is in fact a mod but just pretend), then Hammerpoint Interactive would, hypothetically, have had to wait and see what those behind Day Z had done before releasing a seemingly blatant rip-off. The ill-will Hammerpoint has garnered over these last few weeks is well deserved, and has really damaged the legitimacy of The War Z as a game (if it were ever legitimate to begin with) because, fortunately, people recognize it for what it is.

This really does beg the question: if some ideas are so important that they need to be protected by an NDA, then why even release a beta to begin with? Well there are a few central reasons that really do make betas a worthwhile venture. First and foremost, a beta is almost the purest way to get feedback from a target demographic. This has benefits for participants too because chances are if you are participating in a beta, you are interested in the game to begin with, and the game can be tweaked according to your feedback, giving you a finished product more in-line with your interests. Beta participants also represent an unpaid labor force that can, while providing feedback, help test a game for bugs.

With all of that said, at times I can’t help but feel a little annoyed with NDAs. So what’s bothering me about NDAs despite their usefulness? There are two issues. For starters, the language itself really is irritating. We are, by now, used to entering into various online agreements, whether it be EULAs or NDAs, that in exchange for agreeing to the terms of the agreement offer us use of an online service.  It’s not so much that we have to agree that is the problem, but that the language is so often riddled with legal jargon that the terms of the agreement itself are so unclear, so convoluted that it leaves more questions than answers.

When an NDA is involved, it is always a better option to play it safe and say nothing at all rather than risk a violation. Sometimes it seems that this is how publishers and developers like it, and want it, as it keeps their intellectual property that much more secure. Just keep your mouth shut and go about your business or risk losing your spot in a beta or further legal ramifications. For some, their spot in the beta doesn’t matter, but for others, who take the NDA seriously, it does because it can also damage their legitimacy and credibility.

(Just as a brief aside, this is why I am a huge proponent of Creative Commons, which among the many things it attempted to achieves, actually puts its licensing agreements in plain language.)

That language issue leads into my next grievance with NDAs. An NDA means that any participant in a beta cannot talk about the beta to anyone who is no participating in it, which affects someone like me who has a bit of a platform to give my opinion about video games. And yes, if you haven’t guess already, I am part of a beta on which I’d like to share my opinion. No, I won’t say which one or anything about it.

Suffice it to say that in attempting to adhere to an NDA which, given its language, I do not fully comprehend, I feel unfairly silenced. It’s not like I, or any others, want to speak about a beta for nefarious purposes; in fact it’s quite the opposite. I only want to talk about how excited I am about the direction a game is headed.

Unfortunately, this is the way it has to be. The platform that I have to express opinions can be viewed by anyone and any details that are divulged are there for anyone to read. While this is a great feature that helps democratize the internet, it is also why an NDA is that much more important for Publishers or Developers who are interested in protecting details, mechanics, systems, or ideas in their games.  After all, we don’t want to see any Developers or Publishers blatantly steal and rip off the hard work and ideas of others because of some leaked information found on the web. We don’t want to see another Day Z/War Z scenario unfold, and that is exactly what an NDA can help prevent, at least until those details protected by the NDA are released by either the Publishers or Developers themselves.

I understand why Publishers and Developers institute Non-Disclosure Agreements for beta testers—I really do. And when I first started writing this article, I very much wanted to write about Non-Disclosure Agreements in betas and how they have outlived their usefulness—an antiquated relic that doesn’t jibe with a Web 2.0 world that emphasizes accessibility and sharing over secrecy. But the more I thought about it, the more I looked at things from the other side (that of the group or interest issuing the NDA) I came to bit of a realization: they are a necessary evil that protects intellectual property and prevents the theft of that information for financial gain.