Nondisclosure

csmlogo-blackAs many of you are aware, I’ve been pestering CCP Dolan (as has Ripard Teg) since before the CSM 8 elections regarding the specific contents of the CSM Non-Disclosure Agreement (NDA).

I think both Ripard and I agree that the idea that a document signed by people on the CSM can’t be made available for public review is a little odd … but that is the simple fact of the matter, according to CCP’s lawyers.

I submitted two separate petitions for the release of the NDA text, once before the election (Dolan responded that it was being updated for CSM 8 so the original wasn’t worth seeing) and one shortly after the election. Today I got my answer.

CCP Dolan says:

“While our NDA is industry standard, and the specific contents of the NDA are not approved for disclosure I can give you the rough outline that is generally commonly known: Essentially any communications with CCP conducted in private and information handed out by CCP are to be held in secret for 5 years after the last private communication with CCP, unless CCP releases said information publicly or the CSM is permitted to release said information by CCP. This includes all electronic, written, video, and in-person communication. The rest of the NDA is largely procedural.”

So, long story short, any communication whatsoever between CSM and CCP “conducted in private” is to be considered secret and not commentable for 5 years or until public release, whichever comes first.

Now let me tell you why I asked, and a bit about my job in real life. In my RL job I have some level of responsibility for “company secrets” – intellectual property (IP). The primary purposes of an NDA are to protect the IP of both parties for either offensive or defensive reasons, to ensure that the respective companies do not lose competitive advantage in one way or another due to disclosure of that IP. I arrange, review and recommend (or don’t recommend) for signature many of these documents every year, between partnerships of very large companies. I work very closely with our advisors in corporate legal for guidance and support. CCP Dolan is doing the exact same thing.

I think CCP’s legal department was smart. I want to thank Dolan for continuing to pursue an answer, since I know firsthand how difficult it is to get a legal team to take a stand on this sort of public disclosure. I’m sure he had a hard time getting it.

In another part of the response, Dolan suggests that CCP Legal has reasons for not disclosing it due to not wanting confusion with other NDAs that are not CSM-related. My personal opinion: The legal team’s answer is bunk, or at best an excuse. I believe the real reason is that they would prefer to avoid an in-depth analysis of the document by the community, which was in fact my specific intent with the request. So good on them, a good legal team prevented this analysis, even if it makes them look sneaky and like they’re hiding something.

My bet is that that the NDA is designed, as are the vast majority of such documents, to cover specific disclosure of intellectual property. Here’s the template from the Harvard Business School. This means that things like what features will be released, or what plans are for future releases, or what they are doing within the IP as stakeholders, are clearly within a stock “industry standard” NDA. Let’s look at how HBS defines confidential information in their NDA:

(i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies;

(ii) plans for products or services, and customer or supplier lists;

(iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;

(iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and

(v) any other information that should reasonably be recognized as confidential information of the Disclosing Party.

So what if this applied to CCP? What would be covered?

      1. Marketing, financial and business plans. Clearly these must be kept under wraps by the CSM as to disclose them puts CCP at risk as it would any business.
      2. Product plans and customer data. Again, this is obviously under NDA – customer and game release data.
      3. More on technology and information. Again, obvious in the CCP context relative to the underpinnings, infrastructure and releases of games.
      4. More on reports, processes and code. More obvious ties to release info in CCP’s case.
      5. Ah, the nebulous legal catch-all clause. My legal department would redline (cross out and rewrite) this clause if presented by anyone to us.

It is possible in (v) that CCP put in a catch-all “anything you hear from a CCP dev is confidential”. Unfortunately, the CSM is also in a remarkably weak position to redline this clause at time of signature – if they redline it, CCP could simply say, “You can’t be on the CSM without signing it as is.” And thus they would be bound.

Even so, this is likely to be considered overbroad and unenforceable, as it is unlikely to be considered “reasonably recognized as confidential” when talking about disclosure of things that have nothing whatsoever to do with CCP’s IP.

Like what? Disclosure that discussions occurred. Disclosure that a given group was in attendance. Disclosure of who is and is not participating in different activities and who has and hasn’t gotten something done. Disclosure of how the CSM works. Information on how people act or who does what or who said what (where the content is released, the person representing it generally may also be). Or the contents of the NDA itself. I think a CSM member could legally disclose the contents of the NDA. In short, if it’s not about in-game mechanics or features, or CCP business management and measurement, it’s likely either not covered or unenforceable.

But they won’t, and I wouldn’t if I was them. It would likely not be enforceable, but would be grounds for getting booted from the CSM and potentially banned. And other things not covered would likely sour relationships to a level that it would make a CSM member’s job significantly more difficult even if they stayed on.

But I don’t buy it when it comes off like everything is “under NDA”. I hope that people on CSM 8 own it and distinguish between things that are truly under NDA, and things that are simply uncomfortable and likely to cause more problems than they solve by disclosure. The infamous Skype log leak, therefore, is likely (mostly) not NDA-able in the real world, but would have been a grievous breach of trust that effectively would disconnect the offender from the role regardless. I don’t envy the CSM members this line they have to walk.

But I guess that’s not for us to know. And knowing EVE players, maybe I don’t blame CCP for NDAing the NDA.

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10 Responses to Nondisclosure

  1. You beat Ripard to the punch. I think you supplied better analysis than he would have been able too.

  2. Ali Aras says:

    As a CSM, the things I feel comfortable commenting publicly on (without, in general, checking on NDA):

    1) My feelings on a given change or proposed change, either publicly announced by CCP or brought up by a player. If my feelings are influenced by NDA’d material or hinge on NDA’d questions, I will attempt to avoid discussing that consideration, usually by sticking closely to the scenario presented by CCP or the person talking to me. If I know the feelings of other CSMs and know they’re comfortable with me relaying, I’ll sketch out the whole debate, if one exists.

    2) How CSM in general is going. I prefer not to call out individual people publicly, at least not at this stage, as there’re still things that can change. That’s a personal and not legal feeling. I do feel perfectly comfortable exposing the innards of “here’s how CSM chats go down”.

    3) A general status: “CSM is currently Doing Something, Something is going Well”. As you point out, the purpose of an NDA is to protect IP (and in the case of the CSM, to prevent cheating). If you can’t possibly gain any advantage from know that Stuff Happened, I feel comfortable telling you that it did.

    Nice writeup 🙂 Good to have the analysis from someone who deals with NDAs in real life as well; while I’ve been bound by other do-not-talk kinds of restrictions, I wasn’t elected for my knowledge of contract law.

    • Rhavas says:

      Thanks Ali – This seems like a good set of common-sense CSM guidelines. Unfortunately I’ve seen previous CSM members take the stance that anything and everything that doesn’t have a specific CCP-drafted devblog can’t be discussed. Of course you know the NDA better than I do, having signed it. I think you and Ripard (and maybe others, I don’t follow the various forums so others in those arenas may be doing so too) are doing a very good job of walking the line. Keep up the good work.

      Also disclaimer: I’m not a lawyer either. I am the “internal customer” to both our Legal and Contracts teams – I am the liaison between us and the external IP collaborator. They keep me from getting in trouble and I keep them from making things so restrictive we can’t get the intended job done. 🙂

  3. Jester says:

    Yep, excellent write-up! Better than I would have done.

  4. Get elected to CSM, get send NDA to sign. Refuse to sign NDA, Disclose contents of NDA. Get banned from re-election for CSM.

    • Rhavas says:

      Not only get banned from re-election, but get kicked from the current CSM. You don’t sign they’re entirely within their rights to not let you continue even if you were elected.

  5. You’re absolutely right, there is no NDA covering the NDA, and we could probably release the document without any lasting legal repercussions, since there is nothing in the NDA that explicitly bans release of the NDA. And that’s just it – to be honest, even if one of us released the NDA tomorrow, it would be one of the most anticlimactic endings to a long drawn out conversation that takes place year after year. It’s incredibly boring and plain, very simple (Single page for CSM7 – 2 pages for the CSM and CPM) – and contains very little explicitly banned items. Its not a document that would shed any light on what the CSM/CPM can and can’t talk about, because its simply too generic.

    You mention the “Nebulous legal catch-all” clause as if its a possibility they snuck it in there….and I’ll tell you straight up, the *entire* CCP NDA is a single nebulous catch-all with a few mentions of timeframe and not disclosing “proprietary information” without much more detail than that. This year’s was a bit more verbose, but still completely a boilerplate document that could literally apply to a thousand companies and/or products.

    It all comes down to simple courtesy and professionalism in the end – lack of real legal repercussions aside, the reason no one’s about to cough it up if CCP doesn’t care to release it is that nothing is worth trading away one’s ability to work with them behind the scenes in order to “leak” the worlds most boring piece of paper.

    The way the NDA works is simple – CCP has the CSM/CPM sign a nebulous catch-all clause, and than gets to decide the rest of the year what is proprietary information and what isn’t. It’s all verbal from than on – CSM members simply ask what we can and can’t talk about. If CCP says no, we respect that – whether or not there’s anything in the NDA explicitly banning the sharing of that particular information. No CSM member that was asked to keep something confidential is about to go “YES BUT THE NDA DOESNT TALK ABOUT IT SO IM JUST GONNA SHARE IT ANYWAYS”.

    This extremely broad scope of the NDA combined with on-the-fly decisions about what is considered “proprietary” information is what leads to the constant intrigue amongst the community – but really its the professional courtesy we employ that allows us to continue doing our job, not the document itself. That often gets shorthanded by CSM members into “That discussion is NDA’d” even though we all know there’s nothing about Moon Goo or Supertitans in the document. This is hardly the same as intentionally tossing out a smokescreen to cover material we have been given permission by CCP to share but selectively choose not to, which is really what I think the community is still the most paranoid about when they use the term “hiding behind the NDA”.

  6. Lei Merdeau says:

    Hoping you get a call from EVE legal to review the NDA.
    Sounds like you have the expertise to tweak the wording so it doesn’t freak CSM members so much.

    • Rhavas says:

      I’m no lawyer, just a guy who works with a lot of them. Also based on Hans’ comment it sounds super generic, meaning that CCP wants the result we are seeing, which isn’t surprising. And CCP has 95% of the leverage (and that’s being generous to the CSM). So in the end it is what it is; I think the CSM are legally bound by a lot less than they think, but the bottom line is that the CSM serves as CCP allows, not as the playerbase desires, and that means being overcautious about “under NDA” is how the CSM members may act out of self-preservation.

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