As 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?
- 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.
- Product plans and customer data. Again, this is obviously under NDA – customer and game release data.
- More on technology and information. Again, obvious in the CCP context relative to the underpinnings, infrastructure and releases of games.
- More on reports, processes and code. More obvious ties to release info in CCP’s case.
- 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.