On today’s episode of “This shouldn’t be legal”…
Source: https://twitter.com/A_Seagull/status/1789468582281400792
Fucking bonkers. Between this an McD’s changing their ToS to say using their app waives any right to non-arbitration dispute, something needs to be done about companies trying to effectively write new laws into their ToS. This shit is beyond egregious
Number three combo, hold the freedom please
Sincere thank you for providing what I was referencing 👍
They can write anything they want in a TOS, doesn’t mean it’s legally enforceable.
even then, it’s essentially paywalling your rights. you need to go to court, wait for the matter to be adjudicated, hope it works out in your favor, run out any potential appeals, all while paying attorneys and not being able to do something you’re legally entitled to do. If you can’t do all that, then your rights are moot.
That’s what they want you to think, just start a class action lawsuit. Lawyer love those. Force the companies to respond to the class actions.
Collective mass arbitration is my favorite counter to this tactic, and is dramatically more costly for the company than a class action lawsuit.
https://www.nytimes.com/2020/04/06/business/arbitration-overload.html
A lot of companies got spooked a few years back and walked back their arbitration agreements. I wonder what changed for companies to decide it’s worth it again. Maybe the lack of discovery in the arbitration process even with higher costs?
You can’t “just start” a class action suit. You need to sue, get other people to sue, coordinate, and apply for class action status. That’s more time and effort than an individual suit.
Yeah, it’s time to nip this on the front end though. ToS are such a part of daily life now. They should be regulated to be concise, use standardized consumer-friendly language, and have bounds against non-arbitration and other nonsense like this. This sort of legislation is well overdue.
Having unenforceable or illegal clauses in a legal contract means the contract wasn’t written in good faith, which should void the whole thing. Regardless of any “if parts of this contract are deemed illegal, the rest still stands”.
It would be nice to see more proactive involvement of the legal system with this, like have some people whose job it is to challenge these consumer contracts and standardize them kinda like how some open source licenses are standardized. Modularize it, so instead of writing out the whole “limited liability” section, they could refer to an established one by name. Then each module can be the subject of study and challenge, like if a more limiting one should come with other compromises elsewhere.
I think at that point, most honest companies would just pick a standard license or contract, plus maybe a few modifications and shady ones will have more trouble hiding shit like this in the middle of pages and pages of the same boring shit you’ve read hundreds of times before if you actually do read these things before signing or clicking agree.
At this point, most contracts should probably be unenforceable because few people actually do understand what they are agreeing to, which is supposed to be one of the essential parts of a contract. So many parts should probably have an “initial here to show you agreed to this” at the very least. But I’m no fool, this is likely considered a feature rather than a bug for most of the people involved in making and enforcing these things.
Bingo! It’s written in a “cover my ass” but that ass can get kicked by the courts.
Exactly. Anyone can put anything they want into a terms of service/contract. Doesn’t mean it’ll hold up in court.
If enough people believe that it is, they’re not going to be as likely to fight things that they should be.
Good luck getting it thrown out, that’ll be an expensive legal battle even if you do win.
It’s already been decided in Europe. Terms of service have about as much legal weight as toilet paper. Usually what’s true in Europe is true in California as well so I assume something similar has happened over there.
Ah yes, Europe and California the only two places.
which tv manufacturer was it that updated their eula and if you didn’t agree it bricked your tv?
Roku had a new agreement that if you didn’t agree you couldn’t access the TV
Revo, but they don’t manufacture TVs
I really don’t understand the point of a McD’s app anyways. They have a drive thru
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What a wonderful and poignant aside that adds absolutely nothing to the discussion at hand.
Yeah I don’t know why I thought my pseudointellectual comment was relevant here.
All good; I wasn’t trying to be offensive in my reply and was sincere in calling it poignant. Sometimes I get worked up and make tangents that feel vaguely related too. We’re cool if you’re cool ✌
We aren’t talking about something in production, like this app, we are talking about play testing a game in alpha. I would be upset if this was in a released game, or even like the beta test, but if it’s still under serious development it seems incredibly reasonable to me.
A general NDA is reasonable, sure, but allowing only comments which glaze the game but not those which criticize it is not. I genuinely cannot even fathom how you think the contrary; I don’t mean that in offensive, so if you can articulate why you believe that way I would like to try and understand.
I agree that it should just be an NDA to be the most fair. But keep in mind I’m responding to someone who is claiming this is beyond egregious and that there should be laws against this.
It’s just not a big deal. It makes sense for them to say that you can’t disparage the game, because it’s in alpha, but why would they restrict good press? If you find this to be disagreeable, it’s alpha and you can just wait for release.
While I find it disagreeable, I don’t see anything to be outraged over, as avoiding it is as simple as not playing a game in alpha.
Unlike the mcdonald’s example where it is actually a released product.
I work for a video game company, and I promise you’re being far too generous about their motives. This NDA prevents press from doing press. If the alpha is bad, they’re not allowed to say how or why it’s bad, at all.
I understand exactly why they are doing it; what you say comes as no surprise. It’s 100% part of my point.
Coming from software development, including a small amount of game development, I understand how trash alphas can be, especially if you introduce users/players. So it seems reasonable that if the point of the alpha is to flush these bugs/exploits out, which is the point, then restricting the players who are allowed in from disparaging a far from complete game is not some ridiculous overreach everyone here seems to want it to be.
I’m on publisher QA side. Every so often, around this time of year, my company does closed internal playtests for games that are on the pre-alpha release candidate (usually it’s the ones they expect to be blockbusters). Generally when a pre-alpha RC is selected for this, a very small subsection of the game is highly polished to give Users an honest preview of what the devs expect the launch game to be. Obviously since it’s in alpha a lot of things will be changed and there are a lot of game breaking bugs to be found still, but the general experience should still be up for discussion if it was bad. I know it’s possible to imagine a game in alpha as released, because part of my job is to give professional feedback to the producers without ever mentioning unfinished or bugged aspects of the game.
Okay, if they want to bug test, there’s DECADES of accepted practice. Paid/intern bug hunters or playtesters, with an airtight NDA. They’re there to stress tests and find issues, there needn’t be a public facing element.
Marvel want free bug testers, and to get the hype train moving - but don’t want to pay for actual testers who work quietly, and want only positive commentary. Marvel want an astroturf campaign to push preorders, not actual genuine discussion or bug testing.
I’ve been part of public alpha releases, and generally they don’t allow streaming or public commentary, outside of the invite-only forum/discord channels - BECAUSE THEY WANT THE FEEDBACK TO FIX ISSUES.
Marvel want free bug testers, and to get the hype train moving - but don’t want to pay for actual testers who work quietly, and want only positive commentary. Marvel want an astroturf campaign to push preorders, not actual genuine discussion or bug testing.
Okay, then the problem is with the people doing the work for free, not with Marvel realizing that people will do it for free.
The issue is that the people who do this work for free are not like you, and want that early access. . .either for strictly personal reasons or because it benefits them financially (such as is the case with streamers).
If your alpha is trash, then:
- Your game isn’t actually ready for alpha
- Make people sign an NDA to playtest it, don’t release a “public closed beta” contingent on this non disparagement agreement bullshit
Most people (except for you, apparently) can see right through this kind of thing. The only reason you’d make someone sign a legally binding document saying “you’re not allowed to say bad things” is because you know there are bad things to say. If there are bad things to say and you know about them, the correct move (from both a technical and PR perspective) is to fix the bad things before allowing your game to be played publicly. Preventing people from talking about the bad things won’t magically get rid of the bad things.
Your game isn’t actually ready for alpha
Alpha testing is, by definition, testing on unreleased code. Even though they are offering the testing to some select group of people, it’s still considered un-released.
The only reason you’d make someone sign a legally binding document saying “you’re not allowed to say bad things” is because you know there are bad things to say.
False dichotomy. There is also the possibility that you realize, from experience, that when you start introducing users, unexpected shit happens.
They could do the alpha testing completely internally, or they could give some super fans pre-access with more restrictions on what they are allowed to say. Would I prefer they be able to speak their mind? Of course. But I get why the company would do this and it’s really a complete non-issue.
Sure, they could do an NDA, or they could also get free publicity. It’s reasonable for them to choose the latter, and if you don’t like it, it’s reasonable for you to wait for release.
Preventing people from talking about the bad things won’t magically get rid of the bad things.
Yeah, that’s pretty clearly not the point. They presumably want to fix the bugs without them counting against them in the court of public opinion.
I can’t help but think that if this sort of thing proliferates that it will essentially hamstring reviews. This particular agreement might be just because the game is in alpha, but it’s part of a broader trend of ToS/EULA wishlists that are so restrictive that they’re probably illegal already buy in order to test that you have to go to court against a huge, overpaid legal team which leads to people having their basic rights violated.
This is a slippery slope fallacy “if they are allowed to do something mild and legal now. . .well, it will just lead to terrible violation of our rights in the future!”
What undermines your point is that if they try to put these illegal restrictions on many people, violating their basic rights, then they are opening themselves up to large class action lawsuits.
If it’s still in alpha, then a standard non disclosure should be fine.
A non-disparagement clause is overkill.
I could agree that it’s overkill, but that doesn’t warrant the outrage we’re seeing here. IMO of course. If this is really offensive to you, just wait for release. Considering it’s FTP so this doesn’t apply as much, but I would recommend even waiting until way after release to buy a game.
It’d be a lot more reasonable if they simply said “No public discussion of this game, period”
Trying specifically to squelch the negative comments so any claims can go unchallenged is bullshit and entirely unreasonable.
Sure, more reasonable and fair. But this is neither unreasonable nor particularly unfair, as long as it’s restricted to the alpha. If you find it bad, don’t play it, and understand that what opinions come out of alpha are biased by this. I would recommend taking all reviews that come out of any alpha with a huge grain of salt.
they shouldnt be releasing it to streamers and youtubers to play, in alpha, on their goddamn channels, while muzzling them in how they can respond to issues that present themselves during their video/stream, if they want to “protect” (shut down any legitimate criticism concerns) their “alpha” (free advertising)
I agree with you. But this is basically a non-issue, which is my point. If you don’t want to be restricted, don’t play the alpha. Why is this so hard for some people to accept? Again, we aren’t talking about a released product, but some playtesting.
The problem is that unless the agreement explicitly states that the non-disparagment section applies only to the test playtest, the agreement would essentially place a gag order on that creator for the life of the game.
Sure I agree that would be wrong. But I also think that would be unenforceable.
What makes you think that? The language is fairly boiler plate and easily enforceable. We, “the company”, give you, “the creator”, an asset, “a free game copy”, under the condition that you promise not to do or say anything that could diminish the value of the asset. Not only is it enforceable, it leaves room for compensatory damages if you are found in breach of contract.
But it’s just the playtest that is free, not the actual game itself? If they are giving the playtest AND the actual game for free then yeah that makes more sense, but otherwise I think it would likely be considered unconscionable for playtest access to mean they can’t criticize the full game they (eventually) paid for, and thus it would likely be unenforceable.
That is certainly something that can be argued in court, and the case might be very strong…but you’d still have to take it to court. Something else to consider is that if the agreement isn’t clear about its limitations, then it can be argued that it isn’t limited. All the company has to do is send you a key to the full game when it’s available and they are technically still in compliance with the agreement. It would not matter if you tell them that you do not wish to participate anymore, or that you bought your own copy, you’d still be bound.
I haven’t read the entire agreement, so I don’t really know nor do I care to. But I suspect that it would squarely fall under protected speech once the game has gone public and they’ve “purchased” it.
Early access to a game is not an asset you can “un-receive” just because you purchase your own copy later. Of course, you could make arguments against the terms being overreaching in court, but not many creators have the resources or desire for a legal fight.
Other creators chimed in and said that they brought up the section in Discord and legal said they’d look into it. To me, this just seems as lazy copy and paste that they were warned about but did nothing about. Now they have a possible PR disaster on their hands unless they take swift action.
PS: Apparently section 2.6 is way worse but it hasn’t been shared yet.
Of course, you could make arguments against the terms being overreaching in court, but not many creators have the resources or desire for a legal fight.
This is what I mean by unenforceable.
What exactly do you mean by “protected speech”?
Protected by the law.
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No way they can enforce that. I hope nobody is going to intimidated by this.
This isn’t a “we’ll sue you” clause, it’s a “we’ll never do business with you again” clause
Which is usually unwritten but understood. It’s wild that they put it in writing.
Well normally they just tell you you aren’t allowed to talk about the game period. This is a slightly relaxed position from that stance.
Yes but it still looks bad because it’s saying “you can talk about it, but only if you say nice things”. A full embargo would’ve made more sense and wouldn’t have raised any eyebrows. This current contract leads me to believe it’s a shit game.
Yeah, I think they normally do full embargoes for that exact reason.
Embargoes do get a bit of backlash sometimes, but not nearly enough.
When I am aware they are a huge red flag for me in any case.
Embargoes do get a bit of backlash sometimes, but not nearly enough.
Why should a full embargo get backlash? They are trying to get input for an understanding, controlled population before unleashing it on a wider public. The whole idea is that the preview is not representative enough to start setting expectations for everyone. But it is far enough along to get the general idea and get feedback to address.
I am constantly testing pretty well known products in advance of their release and they are frequently crap. Like one thing I’m working on hasn’t been able to work at all for a week due to some bugs that something I did triggered and they haven’t provided an update yet. However when they actually are available to the general customers, they are pretty much always solid and get good reviews. If I publicly reviewed it, it could tank this product even though no one could possibly hit most of the stuff that I hit.
A full embargo seems fair. The selective embargo seems like an unfair idea, but also is a bad idea. If everyone knows they are allowed to talk about it, but only the good parts, then people will be speculating on what is not said. One product I tested had someone fanboying so hard about it they were begging the product team to lift the embargo so they could share their enthusiasm. They said no, they didn’t want partially informed internet speculation running until they could address all aspects of the product publicly, and frankly there was too much crappy parts even if he was over the moon over the product and didn’t really use the bad parts.
I suppose I could see being uncomfortable with the “testers” also being the likely “reviewers”, because your are developing to the tastes of specific reviewers and tailoring for a good review in the end even if those reviewers aren’t fully representative of the general population. It’s easier to get a few dozen key influencers happy by catering to them/making them feel special, than releasing a product and hoping you hit their sensibilities.
I hope there is a bunch of really sarcastic positive reviews, listing everything they hate about the game as if it’s what they really love about the game.
The ToS forbids satirical reviews. I’d start a review by reading out this portion of the ToS and then make a list of things I hate, just saying I’m not allowed to talk about this aspect of the game, or this aspect of the game, etc, etc.
Judges are smarter than that. So are juries.
A judge would probably throw this out long before it went to a jury.
Yeah, I sometimes forget that the law isn’t a code to be broken with this One Neat Trick. That goes double when you are going up against power.
Yep, this is the move 👍
It’s a mobile game from NetEase. I think it’s a excellent opportunity to be a madlad and review it like that because fuck them.
Aww boo hoo I can’t review any more of their shitty gacha games?
It must be a REALLY good game. Only the best games that were already going to get high reviews would ever resort to such a policy
“I signed a contract that forbids me from saying anything negative about this game. I am therefore contractually obligated to say nothing”
This game doesn’t ruin your entire day by playing it for even a second.
By the contract, you couldn’t say anything detrimental about the game, so such a statement would still be forbidden. Whether such a vague limitation on what a content creator can say would hold up in court is a different thing.
Shows that they have amazing confidence in their product. This is the same to me as saying “We know it sucks so please don’t say so if we give you this key.”
My first thought is: This is probably a shitty game because if it was good, they wouldn’t be worried.
They are probably concerned because management has decided that the game should be shown off even though it’s probably not ready. This is that kind of clouged together solution.
As per usual it just seems to have blown up in their gormless faces.
It says not to leave “subjective bad reviews”. As in, objectively bad is fine.
It also says you can’t compare it to other games “maliciously.” What the fuck does that even mean?
“Marvel Rivals is just as bad as Cyberpunk 2077 at launch.”
???
We just have a give a positive spin
“The game is really good at sucking”
“This game would definitely win an honorary award for ‘Games I don’t Care About’”
“This Christmas I would gift the game to all my cousins whom I hate”
Good whom.
It’s going to be relentlessly compared to OverWatch. It’s basically an OverWatch clone with Marvel characters.
Oh my bad.
“It’s just as bad as OverWatch 2.”
Not being able to make satirical comments about any game-related material would mean nobody could say something like, “Controlling Iron Man feels like fighting Jarvis for control of the suit”, or “Storm is as effective as a light breeze”
Care to clarify what is objectively bad? Like, an example
My understanding is that Digital Foundry type of performance review is fine, but comments on how the control feels laggy or the game is a lower-tier copycat of Overwatch are not okay.
In the context of a game, let’s say a clearly outdated graphics engine that everyone can agree on looks very dated. Or game-stopping bugs. Constant crashes. Etc.
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Graphics aren’t the same as aesthetics.
The graphics can be objectively bad in so far as the technology used may be out dated, less sophisticated, or slower than other implementations.
Aesthetics (how everything looks) are subjective.
Game kills all life on earth when starting
This is utter hogshit, but also seems relatively easy to work around. “I am legally forbidden from sharing my opinions on the quality of Marvel Rivals.” is a pretty clear and succinct review that technically flies under their legal fuckery.
Basically makes any test results null and void
How? The agreement restricts public statements, not negative feedback as a whole.
or providing subjective negative reviews
I’m not sure what your argument is here but it doesn’t seem solid. How is a reviewer supposed to do their job?
The Closed Alpha playtest isn’t an invitation to publicly review, it’s an invitation to playtest. They’re trying to gather data and feedback on an inherently feature-incomplete and unpolished game to help with development. There are going to be private channels for feedback and the playtest data itself is like feedback so public channels are redundant. Obviously Marvel is also just trying to dodge criticism, but that’s not a mutually exclusive reason.
Yeah this seems to be something people are missing. These tests sometimes prohibit all reviewing and commenting in their NDAs (including positive ones). It’s a playtest, not a beta, review copy or pre-release.
You sure? Post doesnt stipulate
these ass hats know what they are risking. they just plan for a “sorry we got caught” apology ready if needed in the hopes that they get away with it.
You might be right. This might not have been a mistake. Some creators in the Twitter thread said that they brought it up ahead of time but the company sent those agreements out as is anyway.
Thanks for the link, just posted it.
This is market manipulation at its best. The whole board should be jailed for it.
This is market manipulation at its best.
yes
The whole board should be jailed for it.
no
no
Yes
No
Maybe
so
Every reviewer who signed this should post a review, but of the business practices and why not to buy the game.
engage in any discussions that are detrimental to the reputation of the game
You would literally break the contract
Arguably it’s not detrimental to the reputation of the game, but the company.
“Great game. Never buy it.”
“It’s a game. Don’t buy from them.”
Nope. They would be talking about the company not the game.
Which discourages people from buying the game, thus hurting the game.
“Good game, but the company behind it is shit and required me to sign this contract. <Insert contract clause>. Remember this whenever your reading the totally honest reviews about how good the game is.”
When they reach the aspects of the game that they didn’t like they can just say “let’s skip this next part about CTF mode, because I signed a contract” and let the viewers deduce what they deduce.
They saw what MKBHD’s honest reviews did to Fisker and Humane and said “can we stop that from happening?”
As stupid as it is, it doesn’t stop a creator from simply demonstrating issues, without commentary. Just show people the issues and don’t remark on them.
That being said, nobody should sign this. Trying to forbid people from making satirical remarks? What the crap?
They literally can’t do that. Satire is a protected right under the first amendment. Anyone can make public satirical remarks regardless of signing that contract.
You are aware that first amendment protects speech from government actions/bodies only. It’s not something you can use against a private business (there are other laws for discrimination.)
The point of the contract is that if one is in breach the company can sue for damages and potentially remove the offending media.
The suing process would be through a legal body such as a court system, in this case federal court since the media is on the Internet, therefore the contract doesn’t hold any legal binding. No federal court would uphold a contract that violates the first amendment.
Contracts adhere to laws and rules just like any other legal document. You can’t just put whatever you want into a contract and have it be binding.
Sure, but that term does not violate the first amendment since the government didn’t stop you from saying it, so would hold up. You might be able to get it thrown out due to something else, you would need a lawyer for that.
That contract will have penalties for violations, and those are what you would be subject to if in violation.
That’s not how that works. The contract is in and of itself a violation of the first amendment. Therefore it has no legal binding. They wouldn’t be able to remove the offending media from any platform or sue for damages if someone breached the contract.
If there are internal ramifications due to a breach of contract that’s something that could be handled internally, such as the content creator not being offered any review materials in the future. But a contract wouldn’t be necessary for that either way.
Moreover, specifically for satire, there are whole acts in the law advocating for it. There is absolutely nothing, no clause or agreement that would ever prohibit someone from publicly satiring any given entity. Regardless of any contract.
federal court
lmao
