Why Microsoft is Right and Breaking NDA is Wrong

Gamers who leaked alleged footage from an unannounced ‘Gears of War’ beta have been “temporarily” banned from Xbox Live

Earlier this week, I, and many other news outlets, published articles about Gears of War Ultimate Edition‘s apparent leak onto XboxDVR. After the footage blew up from all the coverage, the two gamers behind the leaks found themselves to be in a world of hurt after bans with unclear durations were given by¬†Microsoft.

Why Respecting NDA Matters

For those who don’t know, NDA stands for NonDisclosure Agreement. That’s legal talk for an agreement to keep whatever it is you’re playing or talking about on the down low. So if both players who leaked the footage signed NDAs, (which they did) they knew full well what they were getting into when they uploaded it. As many people have pointed out, it’s very easy for someone to get excited over beta testing a big name title like Gears. Regardless of how jazzed someone might be to play such a game, though, both players voided a legal contract that they had signed. Remember, breaking agreements such as this can lead to legal proceedings that could cost the players greater than $100,000 if Microsoft and Black Tusk wanted to sue and proved what they did cost them greater than one million dollars in damages (which would be incredibly difficult in this case). Ultimately, these players should be lucky all they’ve received (so far) is a $400 dollar slap on the wrist.

And the remaster
A screen grab from the leak earlier this week

Bear Claw’s Take:

Think of these leaks like when a reporter is given information but is told to keep the information “off the record.” At that point, the reporter has an option: accept the free information but don’t publish it, or print it and knowingly break a code of ethics and, more importantly, the law.

Now apply the analogy. These gamers signed (likely through email) an NDA which stated they would not share, publish, etc. any of the content they’d be testing. They probably were forced through several difficult and annoying hoops in order to obtain the Gears beta before they played it, too. So why, oh why, would you ever in your right mind think publishing footage of the game is any different from printing off-the-record information?


When all of this is said and done, I still feel the gamer inside me feeling giddy that I’ll be able to dive back into the world of Gears soon. Still, I can’t help but feel like people have to be incredibly foolish to not expect massive ramifications for leaking sensitive information. With just about on month left until E3, gamers can probably expect a legitimate announcement from Microsoft and developer Black Tusk very, very soon.

What do you think about about the way these leaks were handled? Was Microsoft too soft? Too hard? Was the temporary ban done to keep other leakers from feeling tempted to do the same thing? Let me know in the comments or on Twitter!


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