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An Email I Just Sent About NDAs

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rcjames14
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I looked over the NDA that you have and it looks fine. Pretty standard stuff. However, I would not like to be bound at this point by an NDA. As a design studio, I need the flexibility to be able to pursue a new design without having to worry that some part of it may have been shared with me by someone else. I do not have any intent to steal anyone else's designs or to pursue the kind of games we discussed in the context of your company, but nor do I want to give other people cause to think that I may have stolen their ideas when I publish games.

Game design is very very flexible. We constantly appropriate ideas from each other, learn from previous designs, innovate and improve upon what each other do. The industry and public are all better off on account of this practice, but what it requires is more ethical rather than legal restrictions. People who steal another people's design wholesale should be held legally responsible... but I personally believe that adapting or appropriating certain mechanics when they do not constitute the body of the design and they are combined in novel ways should not constitute infringement.

However, most NDAs (including this one) do not have the refinement and nuance to permit one without permitting the other. As a result, I would rather not know anything that your company is working on than be in a position where I have to worry that even the smallest aspect of what you share with me, if incorporated into a design I work on independently, would constitute infringement of your rights.

That being said, I would be happy to provide you with any amount of 'blind' advice. If you have questions that you would like me to answer about either the business, game logic or design, then I would be happy to provide you with feedback, suggestions and advice. I would also be willing to sign an agreement with you that gives you legal title to use that feedback without having to further request my permission, but my advice has to be seen as given (in legal jargon) non-exclusively and what I say to you I reserve the right to use myself. I would expect the same from you in return, and then I will let you decide on a case by case basis how much you are willing to share.

Ultimately, more can always be done when people work together and when they trust each other. So, usually an NDA is a good step in that process. But, I think that understanding what I do, what I want to do and how I do things is actually a better basis for trust than any piece of paper. I would like to give you advice and consultation free of charge. If it turns out that you would like me to do more than just advise, then I'd be happy to sign an agreement with additional confidentiality that recognizes the partnership between our two companies and keeps your information private. But, up until that point, I want to still maintain my freedom to design stuff where my mind wanders.

Thoughts?

kos
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Giving advice

You could also point out that the value of the advice you are able to provide is the direct result of your study of numerous existing games and games under development (and, of course, a healthy dose of your own creativity, analysis, etc).
If everybody who ever sought your advice about their games wanted you to first sign an NDA, this would place severe limitations on the advice which you could provide to any of them -- including this person.
Regards,
kos

rcjames14
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Deal-Breakers

kos wrote:
If everybody who ever sought your advice about their games wanted you to first sign an NDA, this would place severe limitations on the advice which you could provide to any of them -- including this person.

That's quite a good point. And weird but true come to think of it. If you acquire enough knowledge to become valuable enough to others, then you can charge for your consultation, but the condition of that consultation would often involve confidentiality, which would no doubt limit the amount of knowledge you can provide others as compared to someone who isn't tying up their mind in non-disclosure. It is ironic then that it is precisely the ones who you would most likely benefit from who are the ones who you would least likely get to do so if the refusal to sign an NDA was a deal-breakers.

On the other hand, there are businesses out there like Goldman Sachs which have so much leverage, that not only do they get paid tremendous sums to advise clients, but their clients agree to let Goldman Sachs use for its own benefit all information which the disclose to it.

In this particular NDA, I also thought five years was a little bit long. This industry moves so fast, I cannot imagine information being relevant and valuable for more than two years. Beyond that time frame you are often not even talking about the same media.

ilta
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it all makes sense to me. and

it all makes sense to me. and they're the ones who came to you, not the other way around, and they aren't offering to pay you. if they don't like it they can go find someone who will sign an NDA (if they can find anyone who will; as has been said, the knowledgeable designers and publishers will know enough not to submit to an NDA).

Dralius
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I think you handled that with

I think you handled that with tact.

If they are that worried you can always send them to me if they need help refining the design.

Development (at) PyromythGames (DOTCOM)

I’ll sign a NDA assuming the other party is willing to sign my billing agreement. I charge $25 an hour with a minimum of 4 hour charge regardless of duties performed. That first 4 hours is paid up front.

Who have I worked for? Sorry Im not allowed to say :)

rcjames14
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What Do We Own?

There are a number of reasons why I don't think you'd want this project. But if it does come up, I'll definitely keep you in mind.

What interests me the most is actually whether other people on this list have a similar perspective on game design. About how we are all petty thieves, but that the world is better off on account of our burglary.

I have signed some very narrowly tailored NDAs in the past, as well as some loose ones with friends in order to formalize what we'd already been doing... But with this one, it occurred to me that I really shouldn't be signing NDAs seeing how flexible game design is. I get ideas from everywhere and so the model where everything is owned, I just don't think it would work for what I do.

When there is an actual tangible product, or as copyright law calls it, an expression of an idea, then I think that stealing is poor form even where it isn't illegal. But NDAs cover ideas themselves and so they kind of circumvent the wisdom of generations that says that ownership over an idea is a bad thing.

Of course, given that the counter party most likely got its own ideas from other people, probably most of their ideas are not technically confidential as per the NDA, but the burden of proof would be on me to prove that those ideas were already in the public domain or belonged to someone else. And I simply do not have the time nor desire to do that.

Perhaps there are a lot of positions where an NDA makes sense, but as my livelihood depends upon my ability to think up new ideas and create products from them, it seems like I would be depriving myself of the capacity to make money by exposing myself to an NDA that could cover any manner of ideas that in some way relate to my field.

Really... In the end, I didn't sign it because I met with the counter party and I don't really trust them. So... My gut already told me what to do. But my need to at least write a response got me thinking about what my role in the industry is and how NDAs are used by business types to try to own what by law is declared unownable... Ideas.

Of course, it's a double edged sword for us designers... Since what cannot be owned also cannot be sold, we have to constantly figure out exactly what we do own and justify our work to others to live. I just don't think ideas are it.

Dralius
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Nude.Dancing.Antelope.

People are accustomed to Corporate America or at least their perception of it. From my experience most business people are honest and would not steal anything but there are enough corruption to tarnish the image. That coupled with the misconception that a board game will make you a millionaire overnight makes people paranoid. They think that they have a million bucks and there is someone just waiting to cheat them out of it.

I have worked in this field for 8 years now and have not seen a substantiated claim of game theft by a professional. I’ve seen armatures do stupid things like try to sell their own hand made edition of Settles of Catan on ebay but I count that as different animal. Even so I understand that some people no matter what you say or do will not trust you. It’s just their way. Because of that I am not offended by NDAs and will sign them as long as their terms are not outrageous and it is necessary to do business.

I don't know enough about your situation to say this person is trying to claim an idea as thier own but it may be so.

When it comes to business my problem is im too honest. Not only do you not need an NDA to keep me from speaking about your game, I will do that if you just ask, you may not need my services. I have talked many potential customers out of hireling me with my patented ‘This is how the game industry works’ speech. When they find out that producing and selling a game is hard work with thin margins they either give up or find someone who will give them back their rose colored glasses.

rcjames14
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Different Expectations

Dralius wrote:
That coupled with the misconception that a board game will make you a millionaire overnight makes people paranoid.  They think that they have a million bucks and there is someone just waiting to cheat them out of it.

This is more or less the reason that I don't trust the person. Not because I think that they are corrupt, but because I don't think that they understand that the specific ideas that they want to protect are not as valuable as they think they are.

For a variety of reasons which I don't need to go into here, based upon our conversation, I came to believe that the NDA covers ideas which are neither narrowly tailored, original nor valuable.  And since, in my mind, an idea has to be all three in order for anyone to attempt to claim ownership of it, I anticipate problems over expectations in the future. 

Since I am in the business of developing games and the fact that the specific games that I like to design, skillsets that I have and my work experience overlaps well with what the person wants to do was the basis for our meeting in the first place, it is not unlikely that I will end up designing something at sometime in the next five years that comes close to what they want to do. This will likely happen regardless of whether I know what they are doing or not and almost certainly will not be influenced by what they disclose.

But I don't want to be a position where they might see something that I develop in the future and, because they don't understand how the information in the NDA doesn't actually constitute information which can be protected or they worded it in such an open ended vague way, suddenly think: gee, that was my idea, where's my money.

BTW, the medium in question was mobile social online apps.

Dralius
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Anti-Social Online Apps.

rcjames14 wrote:
BTW, the medium in question was mobile social online apps.

Hmmm, that may be outside my purview. I am not too big on FarmVille type of games. They are just distractions without any drama. You can’t lose as long as you keep up with them which to me is quite dull.

InvisibleJon
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A classy reply...

rcjames14 wrote:
I looked over the NDA that you have and it looks fine. Pretty standard stuff. However, I would not like to be bound at this point by an NDA.

Game design is very very flexible. We constantly appropriate ideas from each other, learn from previous designs, innovate and improve upon what each other do.

However, most NDAs (including this one) do not have the refinement and nuance to permit one without permitting the other.

That being said, I would be happy to provide you with any amount of 'blind' advice.

Ultimately, more can always be done when people work together and when they trust each other.

Thoughts?

Very, very well-written and classy. You could have just blown them off, and instead you took the time to craft a great and generous response. Makes me proud to know you, if only by internet association.

Nice work.

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