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

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.

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.

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.

I see. That’s not what “unenforceable” means. Unenforceable refers to a contractual responsibility that a court would never enforce. There are many reasons why a court would chosen to not enforce a contract but none of them are because a defendant doesn’t have the means to combat it.

See: nolo.com/…/unenforceable-contracts-tips-33079.htm…