"BOING BOING 'CHIPTUNE' CHALLENGE"

OFFICIAL RULES

NO PURCHASE OR PAYMENT OF ANY KIND IS NECESSARY TO ENTER OR WIN THIS CONTEST. A purchase will not improve chances of winning.

CONSUMER DISCLOSURES

Because the Sponsor has not previously sponsored a promotion of this sort, it is not able to predict the number of expected entrants. For the same reason, the Sponsor cannot identify the total number of Entrants who won prior promotions it has sponsored. After this Promotion has ended, and upon receiving an email request from any person, the Sponsor will identify the approximate number of total Entrants and the approximate percentage of Entrants who won prizes.

OPEN ONLY TO LEGAL RESIDENTS OF THE 50 UNITED STATES AND DISTRICT OF COLUMBIA WHO ARE AT LEAST 18 YEARS OLD AND HOLDING A VALID DRIVER'S LICENSE AS OF THE DATE OF ENTRY. PARTICIPANTS CANNOT BE EMPLOYED BY SPONSOR, PRIZE PROVIDER OR ANY OF THEIR AFFILIATES.

By entering this Promotion, each entrant ("Entrant") accepts and agrees to be bound by these Official Rules. Any violation of these rules may, at Sponsor's discretion, result in disqualification. All decisions of the judges regarding this Promotion are final and binding in all respects.

1. PROMOTION PERIOD. Promotion begins June 14, 2010 12:00 NOON ET and ends July 15, 2010 12:00 MIDNIGHT ET ("Promotion Period").

2. ELIGIBILITY. This contest (the "Promotion") is only open to legal residents of the 50 United States and District of Columbia who are at least 18 years old and holding a valid driver's license or state-issued ID as of the date of entry, except officers, directors, members, and employees of the Sponsor, Prize Provider, or any of the Sponsor or Prize Provider, the judging organization (if applicable), or any other party associated with the development or administration of this Promotion, and the immediate family (i.e., parents, children, siblings, spouse), and persons residing in the same household, as such individuals. This Promotion is void outside the 50 United States and the District of Columbia, and where prohibited.

3. HOW TO ENTER. Visit www.boingboing.net (the "Website") during the Promotion Period and follow the instructions to complete and submit the entry form. You must submit a videogame to the Website based on one of the so-called "chiptunes" posted on the Website by Sponsor (the "Submission"). The Submission must be appropriate for viewers of all ages, and should reflect Sponsor's values and sensibility. Entrant must be the sole owner (or have written permission from the owner) to use the Submission in this manner, must have written permission from any people depicted or whose contribution is included in the Submission, and the Submission must not contain any copyright, trademarked or other material that violates the rights of any third party. Entrant represents and warrants that: (a) his or her Submission is the original work of such Entrant, that it has not been copied from others, and that it does not violate the rights of any other person or entity; (b) his or her Submission adheres to the fundamental spirit of the Promotion, and (c) the Submission shall contain no virus, worm, Trojan Horse or other spyware or malware whatsoever. Limit: One (1) entry per person and per e-mail address during the Promotion Period. All Entrant information, including e-mail addresses, is subject to the Privacy Policy of the Sponsor. All Submissions must be received by Sponsor no later than July 5, 2010 12:00 MIDNIGHT.

4. WINNER SELECTION AND NOTIFICATION.

(a) All entries will be judged on or about July 8, 2010. In its sole and absolute discretion, and based upon entirely subjective and personal artistic, aesthetic, intuitive and intellectual criteria and judgments, the Sponsor (through one or more designated persons) will determine the entries subjectively deemed to be "best" and to be winners based on the following criteria: creativity/originality (25%); humor (25%); gameplay (25%); and appropriate expression of the Sponsor's editorial viewpoint (25%). The judges will select one (5) finalists (each, a "Finalist") based on the highest overall score. In the event of a tie, the entry with the higher score in the creativity criteria will prevail.

(b) Any potential Finalist will be notified by mail, email and/or telephone. If a potential Finalist: (i) cannot be contacted; (ii) does not respond within one (1) day from the date the Sponsor first tries to notify him/her; (iii) fails to return the Affidavit and Release as specified in Rule 9; (iv) refuses the prize; and/or (v) the prize or prize notification is returned as undeliverable, such potential Finalist forfeits all rights to win the Promotion or receive the prize, and an alternate potential Finalist may be selected. Upon contacting a potential Finalist and determining that he/she has met all eligibility requirements of the Promotion, including without limitation the execution of required waivers, publicity and liability releases and disclaimers, such individual will be officially declared a Finalist of the Promotion.

(c) All Finalists' Submissions will be posted online at the Website on or around July 8, 2010 and the public will be asked to vote for the overall winner. The one (1) entry with the highest number of valid votes (as determined by Sponsor in its sole discretion) as of July 15, 2010 11:59 PST will be declared the winner (the "Winner"). In the event of a tie, the Winner will be chosen by random drawing between the tied entries. Sponsor reserves the right to confirm (or re-confirm) potential Winner's compliance with all the requirements of being a Finalist set forth above.

5. PRIZE DESCRIPTION. There will be a total of one (1) Grand Prize Winner. The Grand Prize consists of one (1) annual membership to Prize Provider's Safari Books Online service to the Entrant. The approximate retail value of the prize is Five Hundred Fifteen dollars ($515.00) and may vary depending on current pricing. Awarding the Grand Prize is subject to Winner's execution of Prize Provider's standard terms and conditions in connection with its services. Finalists may receive additional prizes as determined by Sponsor in its sole discretion. The approximate retail value of such additional prizes would not exceed One Hundred Fifty dollars ($150.00) each.

6. TAXES. All federal, state and/or local income and other taxes, if any, are the Winner's or Finalist's, as applicable, sole responsibility. As a condition of receiving any prize, an Entrant shall have to fill out all tax documentation required by Sponsor.

7. OWNERSHIP AND LICENSE. All entry materials become the property of the Sponsor and Prize Provider and will not be acknowledged or returned. The copyright in any Submission shall remain the property of the Entrant, but entry into this Promotion constitutes Entrant's irrevocable and perpetual permission, consent and license, without further compensation or attribution, to use, reproduce, print, publish, transmit, distribute, perform, adapt, enhance, or display such Submission in and in connection with the Website, the Promotion, the Sponsor and the Prize Provider and the advertising and promotion of the foregoing. In connection with the foregoing, Sponsor and/or Prize Provider and/or others authorized by the Sponsor or Prize Provider shall have the right to edit, adapt, and modify the Submission. Sponsor disclaims all other rights in the Submission.

8. NO PRIZE TRANSFER OR SUBSTITUTION. No prize or any portion thereof is transferable or redeemable for cash. Any portion of the prize that is not used is forfeited. No substitutions for prize are allowed except by Sponsor and Prize Provider, in which case a prize of equal or greater value will be substituted.

9. CONSENT AND RELEASE. By entering the Promotion, each Entrant releases and discharges the Sponsor, the Prize Provider, the judging organization (if applicable), and any other party associated with the development or administration of this Promotion, their parent, subsidiary, and affiliated entities, and each of their respective officers, directors, members, shareholders, employees, independent contractors, agents, representatives, successors and assigns (collectively, "Promotion Entities"), from any and all liability whatsoever in connection with this Promotion, including without limitation legal claims, costs, injuries, losses or damages, demands or actions of any kind (including without limitation personal injuries, death, damage to, loss or destruction or property, rights of publicity or privacy, defamation, or portrayal in a false light) (collectively, "Claims"). Except where prohibited: (i) acceptance of a prize constitutes the consent of any Winner or Finalist (as applicable), without further compensation, to use the name and likeness of such Winner or Finalist (as applicable) and his/her Submission for editorial, advertising and publicity purposes by the Sponsor and/or Prize Provider and/or others authorized by the Sponsor or Prize Provider; (ii) acceptance of a prize constitutes a release by any Winner or Finalist (as applicable) of the Promotion Entities of any and all Claims in connection with the administration of this Promotion and the use, misuse, or possession of his/her Submission or any prize; (iii) any potential Winner or Finalist (as applicable) may be required to sign an affidavit of eligibility (including social security number) and a liability/publicity/copyright release; and (iv) if prize involves travel or activities, any potential Winner or Finalist (as applicable) may be required to execute releases of the Sponsor from any and all liability with respect to participation in such travel/activities and/or use of the prize. Affidavits and releases must be returned promptly from the date that Sponsor first tries to notify the potential Winner or Finalist (as applicable). If Winner or Finalist (as applicable) is deemed to be a minor under the jurisdiction of his/her residence, any prize will be awarded in the name of his/her parent or legal guardian who must execute the necessary affidavit and release.

10. INDEMNIFICATION. Each Entrant agrees to indemnify and hold the Sponsor, the Prize Provider and their respective affiliates, officers, directors, agents, co-branders or other partners, and any of their employees (collectively, the "Promotion Indemnitees") harmless from any and all claims, damages, expenses, costs (including reasonable attorneys' fees) and liabilities (including settlements), brought or asserted by any third party against any of the Promotion Indemnitees arising out of or in connection with (a) any Submission; (b) any breach by the Entrant of any warranty, agreement or representation contained in these Official Rules or terms of service or in any documentation submitted or agreed to by the Entrant; (C) the Entrant's conduct during and in connection with this Promotion, including, without limitation, trademark, copyright, or other intellectual property rights, right of publicity, right of privacy or defamation; (D) the acceptance, use or misuse of any award or prize; or (E) any virus, worm, Trojan Horse or other spyware or malware of any kind in connection with a Submission.

11. OTHER TERMS AND CONDITIONS. (i) Promotion Entities not responsible for entries that are lost, late, misdirected, incorrect, garbled, or incompletely received, for any reason, including by reason of hardware, software, browser, or network failure, malfunction, congestion, or incompatibility at Sponsor's servers or elsewhere. In the event of a dispute, entries will be deemed submitted by the authorized account holder of the e-mail address submitted at the time of entry. "Authorized account holder" is defined as the natural person who is assigned to an e-mail address by an Internet Access Provider, online service provider, or other organization (e.g., business, educational institute) that is responsible for assigning e-mail addresses for the domain associated with the submitted e-mail address. (ii) Sponsor, in its sole discretion, reserves the right to disqualify any person tampering with the entry process or the operation of the web site or otherwise attempting to undermine the legitimate operation of the Promotion. Use of bots or other automated process(es) to enter or vote is expressly prohibited and may result in disqualification at the sole discretion of Sponsor. (iii) Sponsor further reserves the right to cancel, terminate or modify the Promotion if it is not capable of completion as planned, including by reason of infection by computer virus, bugs, tampering, unauthorized intervention, force majeure or technical failures of any sort. (iv) Promotion Entities are not responsible for errors in the administration or fulfillment of this Promotion, including without limitation mechanical, human, printing, distribution or production errors, and may modify or cancel this Promotion based upon such error at its sole discretion without liability. In no event will Sponsor be responsible for awarding more than the number of prizes specified in these rules. (v) PROMOTION ENTITIES MAKE NO WARRANTIES, REPRESENTATIONS OR GUARANTEES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, AS REGARDS THIS PROMOTION OR THE MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY PRIZE OR ANY COMPONENT OF ANY PRIZE. (vi) CAUTION: ANY ATTEMPT BY AN ENTRANT TO DELIBERATELY DAMAGE THE WEBSITE OR UNDERMINE THE LEGITIMATE OPERATION OF THIS PROMOTION MAY BE A VIOLATION OF CRIMINAL AND/OR CIVIL LAWS, AND SHOULD SUCH AN ATTEMPT BE MADE, SPONSOR RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES) FROM ANY SUCH ENTRANT TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION. (vi) The value(s) of the prize(s) set forth above represent Sponsor's good faith determination of the approximate retail value(s) thereof, and the actual fair market value(s) as ultimately determined by Sponsor and/or Prize Provider, are final and binding and cannot be challenged or appealed. In the event the stated approximate retail value(s) of a prize is more than the actual fair market value of that prize, the difference will not be awarded in cash or otherwise. No substitution or compensation will be given for any portion of the prize that is not used. (vii) If any provision of these Official Rules is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Official Rules and shall not affect the validity and enforceability of any remaining provisions. Headings and captions are used in these Official Rules solely for convenience of reference, and shall not be deemed to affect in any manner the meaning or intent of these Official Rules or any provision hereof. (viii) All provisions of these Official Rules which, by their express or implied terms, are intended to survive the termination of the Promotion, shall do so.

12. SPONSOR'S RIGHT TO DISQUALIFY: At any time during the Promotion, the Sponsor reserves the right, in its sole discretion, to disqualify and remove any Submission for any reason including, but not limited to, if the Sponsor believes that such Submission, or any component thereof, contains any inappropriate content, infringes the rights of any third party, violates any applicable laws or regulations, is harmful to any Sponsor's or Prize Provider's business, goodwill or reputation, or otherwise does not meet the requirements set forth in these Official Rules. The decisions of the Sponsor on this and all matters relating to the Promotion are final and binding. The Sponsor reserves the right at its sole discretion to disqualify any Entrant or the vote of any individual found to be (a) tampering or attempting to tamper with the entry process or the operation of the Promotion or the Website, (b) violating these Official Rules, (c) violating the terms of service, conditions of use and/or general rules or guidelines of any Sponsor property or service, or (d) acting in an unsportsmanlike or disruptive manner, or with intent to annoy, abuse, threaten or harass any other person. Further, the Sponsor reserves the right to disqualify any Submission which, in the Sponsor's sole discretion, is deemed to be offensive, libelous, slanderous, inflammatory, or otherwise inappropriate in any way for this Promotion. NONCOMPLIANCE WITH ANY OF THE OFFICIAL RULES MAY RESULT IN DISQUALIFICATION. ANY VIOLATION OF THESE OFFICIAL RULES BY AN ENTRANT OR ANY BEHAVIOR BY AN ENTRANT THAT WILL BRING SUCH ENTRANT OR THE PROMOTION ENTITIES INTO DISREPUTE (IN THE SPONSOR'S SOLE DISCRETION) WILL RESULT IN SUCH ENTRANT'S DISQUALIFICATION AND ALL PRIVILEGES AS AN ENTRANT WILL IMMEDIATELY BE TERMINATED. CAUTION: ANY ATTEMPT BY AN ENTRANT OR ANY OTHER INDIVIDUAL TO DELIBERATELY DAMAGE ANY WEBSITE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROMOTION MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS. SHOULD SUCH AN ATTEMPT BE MADE, THE SPONSOR RESERVES THE RIGHT TO SEEK DAMAGES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW.

13. SPONSOR NOT RESPONSIBLE FOR ERRORS. This Promotion utilizes and relies upon various communication technologies, the proper functioning of which is entirely beyond the control of Sponsor. This Promotion also utilizes and relies upon the services of various companies, including but not limited to Internet service providers, electrical utilities, and wireless telephone service providers, the performance of which is entirely beyond Sponsor's control. Sponsor is not responsible or liable in any way for the consequences of incorrect, inaccurate, interrupted, defective, or untimely transmission or transcription of entry information, or for any human error, technical malfunctions, lost data, transmission line failure, wireless service gaps, power outages and spikes, computer hardware and software errors and malfunctions, computer viruses and glitches, Internet or wireless service inaccessibility, or any other technical, electronic, transmission, computer error or malfunction or similar error or malfunction. Should any communication by Sponsor impose a substantively unreasonable burden on Sponsor or yield an unanticipated windfall for one or more Entrants that presumptively was not intended by Sponsor, such communication is deemed to have been null and void and of no effect.

14. ARBITRATION; WAIVER OF ANY RIGHT TO JURY TRIAL. This Promotion is subject to all applicable federal, state, and local laws and regulations. Issues concerning the construction, validity, interpretation and enforceability of these Official Rules shall be governed by the laws of the State of California, without regard to any principles of conflict of laws. All disputes arising out of or connected with this Promotion will be resolved individually, and without resort to class action. Any claim, dispute, or demand by any Entrant (or any parent, legal guardian, or authorized representative of any Entrant), actually or allegedly arising from or in any way related to this Promotion or these Official Rules or any related content on the Website, shall be resolved by binding arbitration in Los Angeles County, California, before ADR Services, Inc. or a comparable arbitration tribunal selected by the party initiating the arbitration. All questions as to whether or not an issue constitutes a matter arbitrable hereunder shall themselves be settled by arbitration. The arbitrator shall have the discretion to permit discovery, upon a showing of good cause, but such discovery shall be limited to requests for the production of documents and up to three (3) depositions per side, each of which is not to exceed two (2) days. The arbitrator shall apply the substantive law of the State of California. Any arbitration award shall be final, binding, and conclusive upon the parties and their privies. All of the parties knowingly waive any right to trial by jury of any issue in any arbitration brought pursuant to this provision. To the extent permitted by applicable law, all judgments or awards shall be limited to actual out-of-pocket damages (excluding attorneys' fees) associated with participation in this Promotion and shall not include any indirect, punitive, incidental and/or consequential damages and in any event, no party may be awarded punitive damages more than three (3) times the amount of proven compensatory damages, no matter how large or small such compensatory damages may be. The arbitrator may require the non-prevailing party to pay some or all of the costs of the arbitration incurred by the other, including such party's share of the arbitrator's fee. Should any Entrant (or any parent, legal guardian, or authorized representative of any Entrant) demonstrate that he or she is unable to afford any fee needed to institute any such arbitration, Sponsor will advance the monies to do so.

15. PRIVACY. By entering the Promotion, each Entrant agrees to the Sponsor's use of his or her personal information, as described in Sponsor's Privacy Policy, presently located at http://www.boingboing.net/policies.html#Privacy

16. WINNER LIST. For a list containing the names of the Winner and Finalists, send a self-addressed, stamped envelope, within six (6) months of end of the Promotion Period, to: Winner List, "Boing Boing 'Chiptune' Challenge", c/o Happy Mutants, LLC, 60 29th Street #662, San Francisco, CA 94110, Attn: David Pescovitz.

17. SPONSORSHIP. This Promotion is sponsored by Happy Mutants, LLC, 60 29th Street #662, San Francisco, CA 94110.

18. PRIZE PROVIDER. The Prize Provider in this Promotion is Safari Books Online, LLC, 1003 Gravenstein Highway North, Sebastopol, CA 95472.

Comments from previous thread

Anon #1 11:47 AM Monday, Jun 14, 2010 Reply

too bad the contest is US-only. i'm an aspiring videogame designer / musician from chile and was very excited until i read the rules.

hacky #2 12:26 PM Monday, Jun 14, 2010 Reply

Why must I waive the right to a jury trial to enter?
The rules read something like the EULAs boingboing has commented on in the past.
Still, great contest. Can't wait to see what people come up with.

KeithIrwin #3 1:00 PM Monday, Jun 14, 2010 Reply

As someone who writes flash games as a hobby, I was considering entering, but I have a personal rule to never, ever, ever, ever, ever agree to contracts with mandatory binding arbitration clauses. Mandatory-binding arbitration is terrible and I want nothing to do with it. So, sorry, but I won't be entering the contest if those are the terms.

hacky #5 1:17 PM Monday, Jun 14, 2010 Reply

Why must I waive the right to a jury trial to enter?
The rules read something like the EULAs boingboing has commented on in the past.
Still, great contest. Can't wait to see what people come up with.

Rob Beschizza #6 1:18 PM Monday, Jun 14, 2010 Reply

It's just a boilerplate small print for contests.

The Mudshark #7 4:26 AM Tuesday, Jun 15, 2010 Reply

7. OWNERSHIP AND LICENSE. All entry materials become the property of the Sponsor and Prize Provider and will not be acknowledged or returned. The copyright in any Submission shall remain the property of the Entrant, but entry into this Promotion constitutes Entrant's irrevocable and perpetual permission and consent, without further compensation or attribution, to use, reproduce, print, publish, transmit, distribute, sell, perform, adapt, enhance, or display such Submission for any purpose, including but not limited to editorial, advertising, trade, commercial, and publicity purposes by the Sponsor and/or Prize Provider and/or others authorized by the Sponsor or Prize Provider, in any and all media now in existence or hereinafter created, throughout the world, for the duration of the copyright in the Submission. Sponsor and/or Prize Provider and/or others authorized by the Sponsor or Prize Provider shall have the right to edit, adapt, and modify the Submission in their sole discretion.

Great idea for a contest in principle, but no thanks! Not that I´d be eligible for entry anyway.

Rob Beschizza #8 5:20 AM Tuesday, Jun 15, 2010 Reply

Mudshark, you quoted the wrong paragraph! That's the one that means the submitter keeps the copyright in their entry, but gives us permission to publish it. What is objectionable about that?

The one people are annoyed about is the one concerning arbitration. While arbitration is used by sleazy car dealers and the like, here it seems quite reasonable to ask you to promise not to sue us. Can anyone envisage a reasonable circumstance where you would like to take us to a very expensive jury trial for giving away free stuff?

The Mudshark replied to comment from Rob Beschizza #9 6:13 AM Tuesday, Jun 15, 2010 Reply

I hope I haven´t interpreted the paragraph wrong but to me it seems to say that once the entry is submitted, it remains the entrant´s property, but can be used, enhanced (whatever that means, to me it means modified), even sold by the sponsor without further compensation or attribution.

So in my understanding an entrant could possibly create the next Tetris and not see a cent of it after receiving the competition prize.

Again, sorry if I misunderstood this, but if I did, maybe you could clarify.

ben #10 6:17 AM Tuesday, Jun 15, 2010 Reply

I dunno what all the tizzy is aboot, but I'm fairly certain we couldn't resell/license/distribute the games for profit in any case since most of the music uses a Creative Commons BY-NC-SA license. Unless you get special permission from the author, of course.

Only now wishing I could draw. My WarioWare DIY art looks like it belongs to a 4yr old. :) But I have come across many free sprite collections over the years, seems like a good chance to use them.

Rob Beschizza replied to comment from The Mudshark #11 8:14 AM Tuesday, Jun 15, 2010 Reply

I can understand that the presence of 'sell' in there is disturbing, even if it is just designed to protect us from malicious lawsuits.

That said, we're about to post the games for free with permalinks right here anyway. We have no intention whatsoever of profiting by ever selling the entries (or preventing particularly good ones being sold by the creators or any publishers they may work with)

As Ben says, even if you don't trust us, it's all limited by the fact that we can't sell it anyway because it's all about building on the work of others, who gave us permission to use their music for the competition but not to sell it.

Furthermore, if someone wanted us to take down or withdraw an entry, we'd do that, too.

David Pescovitz replied to comment from The Mudshark #12 9:38 AM Tuesday, Jun 15, 2010 Reply

We have revised item #7 in the rules to clarify our intent, which is simply to be permitted to use the submission in connection with the site and this promotion. You own the copyright to your submission. Thanks.

The Mudshark replied to comment from Rob Beschizza #14 1:05 AM Wednesday, Jun 16, 2010 Reply

I would trust boingboing not to steal an entrants work. What is also not clear to me in the text is that it refers to the "sponsor and prize provider", which in this case could be Safari Books Online, who I would have no reason to put my trust into like I would into boingboing.

Im going to quit now because I have the feeling I´m being annoying and I don´t live in the U.S. and therefore am not eligible for participation anyway. Thanks for your answers!

David Pescovitz replied to comment from The Mudshark #16 9:45 AM Wednesday, Jun 16, 2010 Reply

@TheMudsark, If you feel uncomfortable with the possibility that Boing Boing or Safari Books Online would promote, showcase, and praise your game, you are probably wise not to enter even if you could.

KeithIrwin replied to comment from Rob Beschizza #18 2:46 PM Wednesday, Jun 16, 2010 Reply

Here's a simple situation where I might sue you: you violate the terms of the agreement by taking my submission, removing my name from it, and selling it to someone else as your own work. Do I think you're likely to do that? Well, no, I don't, but if you should do it, I certainly would prefer to have the right to sue you. And although you could argue that that would be outside of what's covered by the arbitration clause, the clause also says that what's in the scope of the clause will be decided by arbitration.

Also, maybe you would bring me to arbitration: it does say "all disputes". If you were to, for some reason, come after me for something I did, then I would much rather that I keep the legal rights which I would have in a court of law than to be beholden to the whims of an arbitrator.

Also, you refer to a "very expensive" jury trial. Most of the people who have looked into it have actually concluded that arbitration is, on average, more expensive than lawsuits. It's certainly a lot more expensive than small-claims court. In general, companies use mandatory binding arbitration clauses because arbitrators almost always find in favor of the corporation rather than the consumer, and even when they don't they often limit the awards so severely that it does the consumer no good.

If you don't understand how terrible arbitration is in practice, then it just means that you haven't been paying attention. From a consumer perspective, consumerist.com posted this excellent post which describes what it does to consumers choose-your-own-adventure style: http://consumerist.com/2009/02/mandatory-binding-arbitration-the-worst-choose-your-own-adventure-ever.html

But if you want a serious cautionary tale, you can read about the couple whose new house was so poorly built that it needed $150,000 worth of repairs. After a convoluted process of arbitration claims, attempts to sue in real court, and arbitration counter-claims, they were eventually awarded $26,000, which was less than the $30,000 in arbitration fees they had to pay. http://consumerist.com/2007/08/tremont-homes-sells-rotten-lemon-provokes-victimized-homebuyer-into-five-year-consumer-crusade.html

So, yeah, I'm sorry, but mandatory, binding arbitration is a terrible, terrible thing and I'm not willing to take any risk of getting tied up in arbitration. Now, in the comments, you seem to be saying "just trust us, we won't do anything bad" and honestly, I do trust you. But it doesn't sound from the terms you've given that you trust us. And, well, trust has to be mutual to be worthwhile. And if we really trust each other, then we don't need things like mandatory binding arbitration clauses. So if you want me to enter, you can change your terms to not have one. If don't want to change your terms, then I won't enter. It's a simple enough situation and I won't have any hard feelings either way.

The Mudshark replied to comment from David Pescovitz #19 2:02 AM Thursday, Jun 17, 2010 Reply

If you feel uncomfortable with the possibility that Boing Boing or Safari Books Online would promote, showcase, and praise your game, you are probably wise not to enter even if you could.

I can imagine you´re offended because I believe you have nothing but good intentions. My statement was not about what I believe you´ll do but about what the competition rules enable you to do. Dangling the promotional power of boingboing in front of me and disinviting me from competing for raising an issue that is being discussed on boingboing on a daily basis seems in turn unfair to me.

Rob Beschizza replied to comment from KeithIrwin #21 1:39 PM Thursday, Jun 17, 2010 Reply

Arbitration in a consumer rights context is indeed often abusive. But this is an entirely different context -- a competition giveaway. You know you can't get screwed by us, and even restate your trust that we won't even try to. We're not selling you a house or a car, as in the examples of evil arbitration clauses you offer. You know that our motive is to stop frivolous lawsuits from people who imagine they were harmed by the (mostly virtual!) prizes, or by the suggestion they might receive one. Yet you insist on elaborating this idea that you'd enter the competition if only you could sue us afterward.

What's frightening is the casual litigious malice implied by this kind of thinking. I don't doubt for one moment that you truly believe that it's a matter of principle, either. That's why it frightens me.

I was leery about having competition rules, because we've never used them before. I argued bitterly against it because I anticipated that it would generate concern-trolling. But I can see now why we must: to protect us from exactly the sort of 'competition chaser' lawsuits we were warned about. If nothing else, your comment has convinced me that someone out there really might sue us for not giving them a T-shirt with our logo on it.

We're asking people to spend a few hours or days creating something wonderful, expressly without asking them to assign to us anything other than the publication rights necessary to promote their work, and arranging prizes as an incentive. That anyone's response is to try and figure out how they might sue us pretty much signals that it's just a bad idea to host competitions and giveaways at all.

David Pescovitz #22 3:35 PM Thursday, Jun 17, 2010 Reply

Thanks, Rob. And I, for one, am eager to see the bleeping amazing games that our readers come up with!

KeithIrwin replied to comment from Rob Beschizza #23 1:23 AM Friday, Jun 18, 2010 Reply

Litigious malice? You make it sound as though I'm asking for the right to sue you. I have the right to sue you currently. Having the option to use the courts to objectively settle disputes is a fundamental right of a civil society. You're asking me to give that right up as a precondition to entering your contest. And even though this isn't a consumer context, it's still a case where you're the one choosing the arbiter. The most commonly chosen arbiters rule in favor of the party which chooses the arbiter 98% of the time or more (they like repeat business). They are kangaroo courts, not objective proceedings. They have no rules of evidence and most of them have no appeal.

So, am I saying that I will only enter this contest if I can sue you afterwards? Well, yes, but I don't see what's surprising about that. I can sue you before I enter the contest, so why should entering the contest change that? I only want the right to sue you in case you guys screw me over. You're asking for the right to screw me over without me having any recourse. I don't think you're planning to screw me over, but the obvious question is: if you're not planning to screw me over, then why are you asking me to give up my only recourse if you do? If you aren't planning to screw me over, then why set up the rules such that if you do screw me over, I can't fight back? If you just want to reduce frivolous lawsuits, you could have an arbitration-first clause rather than a mandatory-binding-arbitration clause, for example. There's lots of things you can do, most of which don't just take away my normal rights.

And really, I don't know why you said that I know that you guys can't screw me on this. That's the complete opposite of what I said. I know that I could get screwed by you and described at least two ways you guys could screw me over: stealing my stuff or starting a dispute with me which has to be arbitrated. I don't believe that either of these are likely to happen because I do basically trust you, but I can be wrong. And if you did one of those things, I certainly would want legal options. That's not malice. I don't think that you're going to come to my house and hit me either, but I'm not willing to promise not to call the cops if you do. That doesn't mean that I'm trying to figure out how to call the cops on you, it just means that I don't want to give up my options for responding to things that you might do. I don't think that you will do them, but I might be wrong. I mean, if you had a contest where you would come visit my house, would you make one of the conditions be that I wasn't allowed to call the cops? After all, no one wants to be arrested unnecessarily. Especially if the charges are spurious. But would you give me terms that said that if I felt you were breaking the law, that I had to call a private security guard from a company of your choosing? Because this is pretty much precisely analogous to that. I don't think that you'd come to my house and assault me, but I wouldn't be willing to agree ahead of time not to call the cops. Sure, there might be people who frivolously call the police on people, but you you don't deal with that by requiring that people you visit agree ahead of time not to call the cops. Likewise, there are people who file frivolous lawsuits, but requiring that someone you want to work with promise a priori not to sue you is too much to ask because if you do something bad to them, then they have no recourse. Because some people might do something bad to you, you're asking everyone to give up any recourse they might have if you do something bad to them.

Outside of the mandatory-binding-arbitration clause, I have no problem with your contest terms. I agree that what you're offering to do is very reasonable. I totally appreciate that the terms you've set out are otherwise good terms. But along with that, you're also offering me a possibility that I could get sucked into a kangaroo court whose judgments would be legally binding and unable to be appealed. That's a very scary prospect even when the possibility is quite remote. If I don't enter your contest, the odds of that happening are zero. And, besides, the arbitration clause almost nullifies the rest of the terms because if you violate any other part of the terms, I'd have to go to arbitration to deal with it (and pay for arbitration for that matter).

I understand your motives in wanting this clause, but you're also living in a fantasy world if you think that the existence of that clause is going to magically protect you from frivolous lawsuits. People can still file frivolous lawsuits. All this does is prevent people who want to file frivolous lawsuits against you from participating in your contest, or more to the point, it only means that if someone participates in the contest then any frivolous lawsuits they file will be dismissed because they didn't follow the arbitration clause (rather than some other reason) and your lawyer will still have to show up to argue that. Plus they now can take you to arbitration on frivolous claims. They're not that likely to because it costs more money, but they might if they think that they can snow the arbiter. After all, there's no discovery process or normal rules of evidence, so maybe they can pull a fast one.

Also, and I mean this question completely seriously, what in my comment convinced you that someone might file suit over a t-shirt? What in my comment was even vaguely relevant to that? Why do you assume that not wanting to give up my right to sue means that I want to sue? I don't want to sue. I'd hate to sue anyone. It looks like no fun at all. But I want to have the right to in case I need to. You're like those people who assume that everyone who thinks that drug laws should be relaxed must be a junkie. There's even been a post on Boingboing about that train of logic and how problematic it is.

So anyway, I don't feel like you've actually been listening to me. I feel like you're arguing against some imaginary straw-man. So, frankly, I'm finished. I'm a computer science professor who writes flash games as a hobby especially during his summer break. I'm a long-time reader of Boingboing. I've never sued anyone and hope to never have to. But I don't think that these terms are good or acceptable terms because of (and only because of) the mandatory binding arbitration clause. When I said originally that I had sworn to never, ever, ever, ever, ever agree to anything with a mandatory binding arbitration clause, I meant it. I'm not making an exception for you just because your motives are pure and I like you. These clauses are a bad idea regardless of context and I'm not going to agree to them for you or anyone else. "Courts" without enforceable rules or accountability are a terrible idea. I think that these are bad terms. I won't accept them. I don't think that anyone else should either. Although I never have sued anyone, I think that the right to sue is important. And if that has through some convoluted logic convinced you that these are the right terms, then, well, bully for you, I guess. I really don't follow, though. I will continue to work on the Flash games which I have been working on and I'll do what I have been doing: put them up on places which have terms which I can agree to.

And if you want to keep telling me how fair and reasonable and necessary the clause is and how much it makes you feel safer, you can feel free, but I don't think I'm likely to buy it. You can have your contest. I'll have my civil rights. We'll all be happy.

Antinous / Moderator #24 1:38 AM Friday, Jun 18, 2010 Reply

1) Take ball.
2) Go home.

Rob Beschizza #25 6:54 AM Friday, Jun 18, 2010 Reply
"So, am I saying that I will only enter this contest if I can sue you afterwards? Well, yes, but I don't see what's surprising about that. ... I know that I could get screwed by you and described at least two ways you guys could screw me over: stealing my stuff. "

If you're worried that we could screw you, you shouldn't enter in *any* case.

You've identified the point where we differ. As it's a giveaway with no fee or risk to the entrant and the prizes are logins and t-shirts, we think suing us over it would be intrinsically malicious, except in absurd scenarios which anyone reasonable knows we couldn't create.

Given these circumstances, we want you to agree to kangaroo court if you want to play our game. That way, we're less likely to have to spend tens of thousands of dollars demonstrating these circumstances in court. We recently beat a frivolous lawsuit with our first legal motion: and yet the bill exceeded $70,000.

So when you say we 'haven't been listening to you,' Keith, know that we have. We just *know* that it's a kangaroo court and intentionally put it there to scare off "competition chaser" lawyers.

You can complain all you like about the universal evil of arbitration, but all this 'you could screw me' lawsuit talk only reminds me that people really do sit there thinking an awful lot about suing over trivial matters.

"what in my comment convinced you that someone might file suit over a t-shirt?"

The prizes here are useful tools, but still tokens of appreciation rather than valuable items with resale value. You mentioned us stealing entries, but prizes are what people usually sue over in competition lawsuits, allegedly.

"All this does is prevent people who want to file frivolous lawsuits against you from participating in your contest"

*facepalm*

4 Comments Add a comment

KeithIrwin #1 9:41 PM Friday, Jun 18, 2010 Reply

I honestly appreciate the last post and feel that you are listening, but I still don't think that you're seeing this from the perspective of the entrants.

If you're worried that we could screw you, you shouldn't enter in *any* case.

If I followed that logic, I'd never do anything with anyone. My insurance company could just take my money and then refuse to pay claims. My employer could let me work and then not send me a paycheck at the end of the month. There are always plenty of ways for people to screw each other over. But when you fail to live up to the terms of a contract this is resolved via lawsuit. That's how it works. Without the possibility of enforcement by the courts, a contract is just a gentleman's agreement.

You've identified the point where we differ. As it's a giveaway with no fee or risk to the entrant and the prizes are logins and t-shirts, we think suing us over it would be intrinsically malicious, except in absurd scenarios which anyone reasonable knows we couldn't create.

I think where we disagree is the definition of the word "couldn't", to be frank. What you're saying here is essentially: since we (boingboing) have to live up to our side of the terms, obviously you will never need to sue us. But the whole point of a lawsuit is to provide remedy when you don't do what you say you're going to. By taking that away, if you should break your side of the terms, my only recourse is to hope that a kangaroo court likes me.

And I completely understand that you're worried about people suing you frivolously related to whether or not they got prizes. I have no interest in ever doing that and would gladly waive my rights to sue you over contest results or prizes or any such. But the terms aren't limited to that. I'd have to waive any and all rights to sue you for anything related to this contest. So if you stole my game and sold it to someone else, if you filed a copyright on my game, if you sent me a bill for $100,000 for "game promotion and publicity" and sent me to collections for not paying it, in none of those situations (which I think we can both agree would ordinarily merit a lawsuit), would I be allowed to sue you. None of these are things that you couldn't do, just things that I don't think that you'll do. But I want to have options even if my judgment is wrong. Even if I think that you won't do this, I can't know that for sure.

The arbitration clause makes the whole contract a one-sided affair. Realistically, you would no longer have to live up to your side at all. I would be bound by an iron-clad contract enforced by slanted arbitration. You are effectively not bound at all and instead are protected by slanted arbitration. Once that clause is there, we are not really in a contract. I am in a contract. You can do whatever you want. That doesn't really seem fair.

And if you think that that's the most effective way to protect yourself against frivolous lawsuits, then the cost you're going to have to pay is people who want a fair deal and pay attention to such things are probably not going to enter.

Here's a related question. You presumably have a contract of some sort with Boingboing (the corporate entity). Does it have a mandatory binding arbitration clause? If not, would you accept one as a part of your employment contract?

The Mudshark replied to comment from KeithIrwin #2 7:12 AM Saturday, Jun 19, 2010 Reply

KeithIrwin, your last post quite clearly states what bothers me about the rules, thanks!

@Rob Beschizza & David Pescovitz:
I would appreciate if you could acknowledge that no one who's posted about his issue is acting out of malice or "concern trolling". I'm certainly not. I admit I didn't choose an appropriate tone in my first post, not appreciating the work you put into even doing a contest and I'm sorry for that. I do appreciate your work, and hope and think that great results will come out of it.

My concern is still the same though. I have had creative work stolen from me before and wasn't able to do anything about it. It was a painful experience. And I'm not talking about money either, but about someone else taking my work as their own.

I wouldn't have thought that it would happen at the time but it did. I wouldn't expect you to do it either. But I can't understand how you can expect people who don't know you personally to blindly trust you just because you're you.

I'm far from being a legal expert, but I imagine it would be possible to write the rules in a way that protects both you from frivolous lawsuits and the entrants from having their work stolen. And again, I wouldn't expect anyone to have plans on doing either. I would despise anyone for doing so.

I don't like the fact that rules like these have to be written down at all and I certainly would enjoy a world where everyone is trustworthy. The fact that I do pay thought to this issue doesn't mean I'm malicious or think you are, the reason is I have, in fact, been robbed of my work by malicious people before.

Peace.

Rob Beschizza #3 10:07 AM Saturday, Jun 19, 2010 Reply

But Keith, context matters. In this competition, us breaking our side of the terms *can't harm you* -- it can only possibly deprive you of a cheap prize or a few hours labor banging out an idea in Game Maker or Flex that you'll likely publish free of charge on the internet before you even submit it to us to be posted at Boing Boing.


"So if you stole my game and sold it to someone else, if you filed a copyright on my game, if you sent me a bill for $100,000 for "game promotion and publicity" and sent me to collections for not paying it"

Everything you describe here is an abstraction of vanishingly unlikely practical circumstances you know won't occur, but which let you imagine that arbitration might serve any purpose here other than to frighten off nasty lawyers. 

You really shouldn't go through your life treating all principled decisions as equal-risk -- it will drive you mad. It's like getting angry at little mom and pop shops that make you spend $5 if you want to use your credit card. 

Arbitration is the only thing our lawyers say protects competitions effectively from frivolous lawsuits that would cost us tens of thousands of dollars. I don't like having to have rules, but see if you can guess how our decision matrix works! The only practical answer for us, if you're right about it scaring everyone away, is that we simply can't promote others' creativity in this way because our exposure to liability can only be limited by rules that they find impossible to work with.

That's fine -- we'd just do a "Kind of Bloop" setup instead where only invitees can participate. But that would be a shame.

"I  would gladly waive my rights to sue you over contest results or prizes or any such."

After all this, you'd rather *totally* give up these civil rights without *any* form of redress, rather than accept the *option* of arbitration?  OK! You, Keith Irwin, are singly and solely released from rule 7. If you enter the competition, you waive your rights to sue us over contest results or prizes or any such. 

Your game better be a damned good one!

Rob Beschizza #4 8:56 AM Sunday, Jun 20, 2010 Reply

However! We've removed "sell" from the fine print to make absolutely clear that we aren't going to.

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