The strange world of the NDA

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Mathew McCurley takes you through the world running parallel to the games we love and enjoy, full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

The non-disclosure agreement, commonly known as the NDA, is a document that the MMO world has come to rely on as a bastion of secrecy, trust, and tempered information release. As the stakes are raised with every new MMO hitting the market and larger beta tests a new necessity, the NDA has come into a new era all its own. The video game industry has never been a stranger to the NDA and, as you might expect, the MMO industry is definitely a friend to this type of agreement.

With private closed betas of MMOs becoming the new normal, sometimes it's very difficult to keep the lid on all of the information your beta provides to the masses. One of the most important public relations tools is the slow drip of information that comes out to hype a new MMO before its release date. Keeping that slow drip going without your stalwart beta testers leaking screenshots, posting anonymously about content, or taking the conversation to inappropriate venues can hurt the precious hype time you've worked so hard to cultivate.

Blizzard is no stranger to harsh NDA issues and secrecy concerns. Back during the alpha for Wrath of the Lich King, huge amounts of information were leaked about the expansion, prompting Blizzard to make uncharacteristically harsh comments toward the leakers. Many people still have the enormous Cataclysm leak still fresh in their minds, as the friends and family alpha/beta of Catacylsm was fileted on the internet, opened for the world to see from every possible angle.

As with most Lawbringer topics, this one began with an earnest email about asking Blizzard's permission to stream beta and PTR content. The short answer is that streaming and recording WoW is usually fine with some caveats that are explained in the machinima rules. It boils down to not putting WoW machinima content behind a pay wall, not making inappropriate, pornographic content, and keeping your sponsor screen time limited. There's more, of course, but that's the gist. As for NDAs, that is a completely different story.

Here's the email that started this off:

Thanks for the email, Artemas. For live and PTR content, there are no real limitations to streaming or recording content as long as it conforms to the aforementioned machinima rules Blizzard has provided. Any more than that and you're going to want to send Blizzard PR an email asking for permission for whatever it is you are looking to record or create.

As for NDAed betas, that's a completely different story. When you enter a private beta, you will usually have to agree to a game tester's agreement of some kind that will more likely than not contain non-disclosure agreement clauses and requirements. These are non-negotiable.

Really, at the end of the day, what single, run-of-the-mill beta player is going to negotiate a deal over NDA terms? You'd be surprised, actually. Some esteemed community members, popular game figures and personalities, and more can and do participate in special NDA-breaking allowances that the game's developers and publishers are cool with. But then that really isn't an NDA breach if they say you can do it, right?

The fact that you agree to these NDA provisions shouldn't alarm you or even be an issue. The simplest way to never run into NDA language is to honor the NDA. Just don't talk about the game. Don't be cute with it. Game developers have more eyes and ears in places that you probably think, and beta access is routinely terminated for people who leak information out from under the NDA. While the NDA is a document that you agree to, I think more importantly, the NDA is a mutual respect between gamer and developer.

When The Old Republic came out of NDA earlier this month, I was amazed at how little information got out about the game. Maybe I wasn't looking in the right spots. Maybe I didn't press the issue in my own mind. I had the same response and reaction to the announcement of Mists of Pandaria at BlizzCon this year. We knew so little about WoW's fourth expansion that I wish I could say more about our predictions. Although I totally did call cross-faction pandaren. While Mists of Pandaria isn't in beta yet, it still has NDA components at Blizzard proper, which goes to show you the respect employees have for their products as well as their desire to keep their jobs.

What the lack of leaked information tells me is that more and more gamers are respecting NDAs in a big way. While the NDA is sort of a clunky, weird solution to showing a game off and then spilling the beans when the veil is lifted, it's what we have right now, so we work with it. The advertising cycle of a game is milestoned through vigorous NDA release dates, and careful information "gives" happen according to a strict timeline, if you have a diligent producer.

No NDA? Why?

Some games just don't have an NDA during their beta phase. If I am remembering correctly, StarCraft II didn't have a lengthy beta NDA, but the reasoning behind the decision not to include an lengthy NDA was because of a radically different reason. Some games do not benefit from the information drip. StarCraft and Brood War were already huge e-sports titles that rocked the competitive gaming scene to its core. The prevalence of StarCraft in South Korea is monumental, to say the least. StarCraft II's beta was home to the burgeoning e-sports viability of the game, where the best casters and community members came out to showcase how awesome, competitive, and groundbreaking the new installment of StarCraft would be when it finally hit the tournament circuit. In the case of StarCraft II, no NDA gave more press than an information drip because of the nature of the game's place in the industry.

Bark versus bite

NDAs have the unfortunate consequence of having lots of bark and little bite. For instance, you're probably not going to get sent to prison over leaking information from the recent closed beta of Star Wars: The Old Republic. Your account will get banned or suspended, you'll probably be on the Bioware hit list for the rest of your life, or the Cupertino police department will break down your door and search your house, but the ramifications are not the "lock you away" type. Sure, there are always the cease and desists and the legal threats and the ramifications that come with that, but for the average player, the concern is access.

That being said, breaking an NDA is one of those unwritten cardinal sins of the video game industry. A company like Blizzard prides itself on the slow drip, the perfect execution of a marketing strategy that builds massive amounts of hype and buzz, sending players into a tizzy for information. Don't break your NDAs, kids. While they might not seem like the most important pieces of the puzzle for you, they are the world to those poor public relations and producer teams that are working this slow drip to perfection. The cynic in me wants to say that some developers hide behind an NDA to ward off bad press, but that's their prerogative, not ours. If a game is crap, you'll know it shortly after release, and if a company hid behind a non-disclosure for the sake of tricking you into purchasing a less-than-adequate product, you know who to never trust in the industry again.

I hear a lot of people say, "Well, I'd like this game better if they were just open about it." Sure, I understand that part of the equation -- we like being informed and enjoy watching the transformation from idea to shippable product. That's what the player wants. That's not always what the developer wants. The NDA is less about enforcement of a punishment for being "that guy" and leaking tons of information. The NDA is a codification of the respect that beta testers have for the developer or publisher that is indispensable during the beta process. Honor that respect.

Before we go, I wanted to answer an email that popped up during my discussion about the WoW Annual Pass:

Thanks for the email. When I said that you could pay all of your year commitment at once, I was referring to the fact that you could purchase enough game time from the Blizzard store, add it to your account, and you'd be set to go. I am sorry for the confusion. However, with the release of the WoW Annual Pass, I would think a year subscription deal would be pretty cool. Pay for your year up front and all that with a new discount. I understand the reasoning for six months as the max, though.

Have a wonderful long weekend (if you've got it), and I'll see you all next week.

This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wowinsider.com.