PlayFirst

[fusionlab]

Just saw this across at Gamespress.com and thought it sounded interesting...

PRESS RELEASE
FOR IMMEDIATE RELEASE


THE REVOLUTION WILL BE DOWNLOADED: ANNOUNCING PLAYFIRST

Three Industry Veterans from AtomShockwave, Macromedia and Ubisoft Raise $5 Million in Venture Capital to Create New Games Publisher

San Francisco, CA - September 27, 2004 - John Welch, Brad Edelman and Jason Rubinstein are pleased to announce the formation of PlayFirst, a publisher dedicated to a new model of online game publishing. The company has already received five million dollars in first round funding from Mayfield and Trinity Ventures.

"The online game industry is still at its dawn," said John Welch, PlayFirst's co-founder and CEO. "Our management team is bringing a new model of publishing to what we see as an emerging market: popular games. With strong capital, expertise, technology and a focus on this market, PlayFirst plans to bring the best gameplay to all online consumer entertainment platforms - starting with internet downloads."

The three founders bring a wealth of experience to the new company. Welch is one of the architects of the new games business, having most recently built Shockwave.com into one of the top five games portals in the world. The technology and design innovations of Brad Edelman, PlayFirst's Chief Technology Officer, have resulted in the creation of some of the widest-used internet-related applications, including Macromedia's Flash Player, Shockwave Player, Breeze Live, Adobe PageMill and more. Jason Rubinstein, the Vice President of Marketing and Business Development, joins the company from Ubisoft, where he helped establish the company as a top player in all facets of online games; Jason is an industry veteran in the online games, entertainment and technology businesses.

PlayFirst will be a provider of simple but challenging games that become staples of daily gaming life. "We're going beyond the hardcore gamer," Welch said. "We want to reach families, women, and new audiences with games that are easy to play and fun."

"The downloadable games market represents a significant opportunity," said Schelley Olhava, Program Manager, IDC. "We expect purchased downloadable game revenue to exceed $760 million in 2007 in the United States."

"Interactive entertainment on personal computers and other consumer devices have started to supplant traditional forms of media such as music, box office and television," said Janice Roberts, Managing Director at Mayfield. "We see a tremendous opportunity for PlayFirst to expand the market for games beyond today's hard core gamers to the broader market on all relevant platforms."

"At Trinity Ventures, we don't just invest in plans, we invest in people," said Gus Tai, General Partner of Trinity Ventures. "And if anyone has the know-how to make the enjoyment of games as simple and broad as going to the movies or buying music, this is the team to do it. With management experience from companies that represent the best in technology, classic brand development and traditional games publishing, PlayFirst has both the diversity and depth of experience to capitalize on this opportunity."

About PlayFirst, Inc.
PlayFirst, Inc. publishes popular games targeted at the mass market through all online consumer platforms. As internet penetration has grown to 90 million users in the U.S. alone, including 30 million broadband customers, the internet has become a viable distribution outlet for games. PlayFirst produces games targeted at previously untapped demographics including women, kids and ethnically diverse audiences. The company was founded in 2004 by veterans of internet portals, traditional games publishers and technology firms and received venture funding from Mayfield and Trinity Ventures. The company expects to launch its first games online in late 2004 through entertainment portals and other direct-to-consumer outlets. For more information: www.playfirst.com.

About Mayfield
Mayfield provides "Venture Capital with Impact" and shows leadership in early-stage venture investing by teaming with exceptional individuals to create industry-leading companies. With $2.2 Billion capital under management, Mayfield has deep domain expertise in enterprise software, networking and communications technology. Since Mayfield's founding in 1969, the firm has invested in more than 400 companies, completed hundreds of mergers and acquisitions and taken 100 companies public. Mayfield's portfolio of companies includes those that represent the foundation of today's technology economy as well as companies striving to set the technology paradigms of the future. For more information: www.mayfield.com.

About Trinity Ventures
Founded in 1986, Trinity Ventures is a value-added investor that provides capital, networks and resources to early-stage software, services, communications and networked systems companies. With more than $1 billion under management, Trinity Ventures has a proven track record of working in close collaboration with entrepreneurs to build leading companies, such as Extreme Networks, Crescendo Communications, Forte Software, Illustra, Starbucks and Blue Nile. For more information: www.trinityventures.com.

###

Media Contact
Eddiemae Jukes
Kohnke Communications
415-777-4000
eddiemae@kohnkecomm.com

[ggambett]

From http://www.playfirst.com/tos.html, emphasis mine

5. Submissions Policy. You may submit to us any games or game proposals ("Games") that are owned and created by you. You represent and warrant that the Games do not infringe any patent, copyright or trademark rights of any third party or misappropriate any third party trade secret. You hereby grant to PlayFirst a perpetual, fully-paid and irrevocable right to freely use, disclose, reproduce, modify, create derivative works of, publicly perform, publicly display, license, and otherwise distribute and exploit the Games in any manner determined by PlayFirst, entirely without obligation or restriction of any kind.

Does this mean what I think it means?

[Jack Norton]

Gabriel, now you understand why I say "Hard to find a good publisher" ?

[alfie]

Gabriel, now you understand why I say "Hard to find a good publisher" ?

That clause is a joke, retaining such a policy is going to be detrimental to their success.

These people are a complete contrast to Grab.com (see in the news section of this site). I know who my money would be on to succeed and the likelyhood of dealing with

Alfie

[Redclaw]

PlayFirst will be a provider of simple but challenging games that become staples of daily gaming life. "We're going beyond the hardcore gamer," Welch said. "We want to reach families, women, and new audiences with games that are easy to play and fun."

Forget playfirst, they should be honest and just call themselves match3colors.com

[princec]

The clause is also pretty much illegal under UK law and would get them a sound hammering in court.

Cas

[botman]

Their website is brown.

[arcadetown]

This is from guys that are veterans in submissions sites people. Ever heard of atomfilms / shockwave.com? John Welsh is the ceo there. Know a few guys with content on shockwave.com and they got nice deals. Probably simply covering their butts on all cases for legal purposes. Besides, if you submit a free demo what do you lose? One thing that's odd is the terms are somewhat different than from AtomShockwave...AtomShockwave Agreement... see # 8

[Dan MacDonald]

I guess it depends on what derivitive works mean, screenshots and gameplay videos? I don't think any online publisher is dumb enough to actually ask for your IP. No one is going to bite if that's the case.

[EpicBoy]

I don't think any online publisher is dumb enough to actually ask for your IP.

That's why they aren't asking. It's just stuck into the contract and they hope you won't notice.

[Jason Chong]

I think it means if you give them your 'Super Puzzler' game, they can create a 'Super Puzzler 2' game out of the first. No ?

[Bluecat]

The first part of the agreement isn't too bad. It basically covers PlayFirst the right to market and distribute the game.

You hereby grant to PlayFirst a perpetual, fully-paid and irrevocable right to freely use, disclose, reproduce,

I don't like the perpetual and irrevocable aspect of it, but I suspect this is just par for the course when it comes to contracts. I don't know what fully-paid means either, but I'd have a lawyer look at it first in any case. But these bits:

• modify, change the game? Take out the developers logo?
• create derivative works of, create a sequel, use the characters in your game in another, in other words use your IP.
• license, does this mean they could get another developer to make a sequel thus cutting you out of the profit stream?
• and otherwise distribute and exploit the Games in any manner determined by PlayFirst, PlayFirst can do anything they want with your game in any manner,
• entirely without obligation or restriction of any kind. and not ask you first for your permission, and perhaps without the obligation to pay you a thing.

They concern me. Now I am not a lawyer, so this may not be what is being said, but this is how it reads to me. It looks very, very one-sided in PlayFirsts favour, and I would suspect that if PlayFirst decided to take control of your game, the contract would give them no problems in court.

Hopefully any indies considering this will have a lawyer look at it first.

[Redclaw]

I don't like the perpetual and irrevocable aspect of it, but I suspect this is just par for the course when it comes to contracts.

Not in any contract I've signed...

There should always be a material breach termination clause, and in my opinion a no cause termination clause (typically with a longer notice/wind down period).

Though I'm guessing their paper contract will be significantly more in depth than the demo submission thing.

[tolik]

Their offer starts to sound like cellular business where you have developers, middle-size content aggregators and max-size content aggregators. If you are not "branded" enough (or you don't have good relations with anybody in there), nobody from max-size guys will pick your game.
Since the mid-size aggregators are scared to lose the niche because of the thousands of cell developers, they cut off the copyrights from the developer (read: ElkWare) games so max-size (and operators) will not ignore the mid-size and will not go to the proven developer.

I see the same thing here. "Hey, your game is cool. We'll put it on namehugesite under our name, you'll get the money, we'll have the brand and even more money".

This is truly arrogant, but I hope these guys just try to scare-off crap-end developers (ms paint + visual basic) by such disclaimer.

[Jack Norton]

This is truly arrogant, but I hope these guys just try to scare-off crap-end developers (ms paint + visual basic) by such disclaimer.

Well they managed to scare even Photoshop+C developers

[fusionlab]

It looks like they've got plans to move into the networked console and mobile phone markets eventually...there's a Q&A with John Welch right here:
http://www.gamespot.com/news/2004/09...s_6108681.html

[Dan MacDonald]

I've met John Welch in person before, he's a very sharp guy and didn't strike me as a rip off artist. Somtimes I think these Terms of Service are just copy paste from some generic source. Has anyone tried to contact playfirst for further information?

[cliffski]

Why do people put such stupid terms in contracts. Developers arent thick (especially the talented ones) we can read, and we can say no. I've lost count of how many times I've ignored a publisher because they listed a load of legal crap that was totally one sided. And the amount of times I've had to ask for stuff to e taken out of contracts.
These people just try it on. If you have a good game with selling potential, you can pretty much get any clauses you don't want ripped out of your contract. They just hope you wont ask.

[Scorpio]

We've known John Welch for a while and he came by our office last week to talk about what's going on at PlayFirst. He's a great guy and we're looking forward to working with him in the future.

John is really pumped about getting his new company off to a great start and I'm sure any contract issues could be worked out quickly and easily with him and his team.
-Scorpio

[Dom]

Sadly thre are enough people who do blindly sign, usually on the assumption that any deal is vital, and if they start arguing terms it will be taken away. There is no such thing as a 'standard contract' - it's really the first draft that shows what their ideal terms would be. You re-word it to show your ideal terms, and then discuss the differences and come to a mutually agreeable arrangement.

Be prepared to spend 3 months or so discussing various points in any contract, and always get a good contract lawyer to check it out. If whoever you are dealing with is genuinly interested in you and your products then they will be flexible - it is a negotiation after all! If they are trying to take you for a ride then they won't be. Its a bit like asking for an advance to find out how serious they are.

As far as submission terms go, I wouldn't submit any of my stuff to them on the grounds of that. I have submitted to other sites, but they tend to have much fairer terms (explicitly saying that they will only use it for promotion & marketting, and that you can request removal with sufficient notice).

Its a jungle out there...

[Jack Norton]

These people just try it on. If you have a good game with selling potential, you can pretty much get any clauses you don't want ripped out of your contract. They just hope you wont ask.

Yes really!!!
Then when you remark "why you put this?" they say "ho nothing, we can cancel that".
Yeah but WHY did you put it then if isn't so important?
My behaviour has changed a lot in last times. Now if I see a contract which has TOO many bad points together, I simply refuse without giving explanation.
THEY know why I refused but of course pretend that I was crazy to refuse such a wonderful contract

[tentons]

Somtimes I think these Terms of Service are just copy paste from some generic source.

Call me skeptical, but surely they wouldn't raise $5 million in investment and then copy and paste some generic terms of service?

[Bluecat]

We've known John Welch for a while and he came by our office last week to talk about what's going on at PlayFirst. He's a great guy and we're looking forward to working with him in the future.

John is really pumped about getting his new company off to a great start and I'm sure any contract issues could be worked out quickly and easily with him and his team.
-Scorpio

Perhaps one of you fellows who do know John well, could throw him an email and point him to this thread. Perhaps pointing out that we're not all raving loonies**, but are serious developers who are genuinely concerned with the TOS on his site. It would be good to get his input into this thread.

cheers

John

**Of course being a raving loonie and a serious indie developer is not necessarily mutually exclusive and sometimes helps.

[Dan MacDonald]

Call me skeptical, but surely they wouldn't raise $5 million in investment and then copy and paste some generic terms of service?

You'd be suprised, I had a job offer from a company that had recieved a round of funding in excess of 30M and their CTO was still responsible for sending out offer letters....

[Ruby]

Hi this is Jason with PlayFirst. The reason we have that clause in our TOS is because our lawyers were adamant that we have it in there. They argued that it's a preventitive measure so that people don't submit anything and everything to us, then sue us later if we publish a game that has any resemblance to what was submitted. Sadly that happens sometimes and larger publishers have standard terms like this in their NDAs. We truly welcome submissions and hope that if you want to propose games to us, you'll drop us an email, tell us about your company, and ask to execute a mutual NDA. I hope this clarifies things!
----------------
Jason Rubinstein
PlayFirst
www.playfirst.com

[Dan MacDonald]

Hi Jason, I'm glad someone from Playfirst showed up. As a bunch of jaded developers we can get rather one sided at times.

With regards to the TOS, It seems that there has to be a better way to do business. As I read the existing terms it seems that all intellectual property rights the indie developer may have are assigned to Playfirst by merely submitting a game. Owning your own intellectual property is perhaps one of the most defining characteristics of Indie developers and arguably one of the greatest assets they have. Without that leverage indie developers make themselves venerable, without the resources to defend themselves they have little recourse if a publisher decides to exploit the success of the developers IP for their own benefit.

I realize that this is not the intention of the individuals involved with Playfirst and the last thing on your minds is ripping of indie developers. However I do not feel that it is sufficient to have this form of "understanding" between the publisher and the developer and have something totally different reflected in the legal documents.

Surely there is a way to write the contracts such that there is a "win-win" arrangement that is good for both the publisher AND the developer. Keep in mind that your average indie developer simply doesn't have the time or resources to actually pursue a frivolous lawsuit

[Mark Fassett]

Hi this is Jason with PlayFirst. The reason we have that clause in our TOS is because our lawyers were adamant that we have it in there. They argued that it's a preventitive measure so that people don't submit anything and everything to us, then sue us later if we publish a game that has any resemblance to what was submitted. Sadly that happens sometimes and larger publishers have standard terms like this in their NDAs. We truly welcome submissions and hope that if you want to propose games to us, you'll drop us an email, tell us about your company, and ask to execute a mutual NDA. I hope this clarifies things!

Well, one thing that seems to be slipping by you is that that clause effectively gives you everything related to my submission without your having to pay for it. You won't be seeing submissions from me until you tell your lawyer to take a hike.

[Chris Evans]

Unfortunately, I have to side with Mark. I was interested in submitting my game to PlayFirst as well, but I just can't risk it with the way your current submission contract is written up.

I worked very hard to develop the characters in my game and I don't want to sign any contract (especially submission contract at that) where another company could use my IP without my consent. I'm sure you guys are honest, but who's to say you group of guys will always be at PlayFirst. After all, you guys came from other companies. You guys again could move on to bigger and better things and your successors at PlayFirst could abuse (or simply exercise) some of seedy clauses in the submission contract I signed.

Like I said, it's not worth the risk. For now, I'll be quite content submitting my game to the other online portals/distributors who don't have such ridiculous clauses in their submission agreements. Most of them don't even have such clauses in their distribution contracts...

[cliffski]

I've said it before and I'll say it again:
lawyers are useless idiots.
They cause far more problems than they solve. I have never employed a lawyer to check a contract, either my games stuff, or music stuff (used to be a session guy). If I can't understand a contract, I ask for it to be reworded in english, but usually its pretty obvious what it means. Why pay some creep $100 an hour to read something for you?
As for including this clause, it seems like some lawyer trying to justify his hourly rate, while at the same time screwing your business. I see exactly the same stuff happening at that big nameless develoepr I work for...
As for my indie stuff, I've signed games to RealGames, eGames and Take2, and I'm very particular about what I'm signing. Having some blanket contract clause that looks like you are signing away your life just puts off all the developers with worthwhile products (you will still get lots of tetris clones eagerly submitted though, and if your lucky a few color-matching puzzle games).
Take out the clause. Its just going to kill your business. And sack the idiot lawyer who 'insisted' it go in.

[Jack Norton]

Of course I agree with Mark, Chris and Cliff.
Only a fool would submit a game with such a clause... unless you change it I doubt you'll get any games from serious developers. You could get crap games from desperate devs that don't sell 1 copy/month, if that is what you need...