Slashdot Mirror
EULA In Games
kakibesar writes "AVault has kicked up an article that takes a look on that lovely little screen that you see when you typically install a game, the End-User License Agreement. Basically it details why companies use EULA in games, as well as what you're giving up when you click on the 'I Agree' button."
What this ignores is that reverse engineering falls within the bounds of fair use. The publishers of a game can retain ownership all they want, but reverse engineering is supported under U.S. law (and others too, I'm sure). Thus many EULAs are misrepresenting the law (at worst) or attempting to get you to agree to give up rights which you would normally have (at best).
It's too bad for software publishers that users have such rights, but it's unethical for them to attempt to strip away a user's rights or trick users in this manner.
Don't get me started on screenshots, either - if you own the copyright to a document you created with Microsoft Word, why don't you own the copyright to a screenshot of a game you created with Quake or Rainbow Six? In both cases you're starting from the default document/game provided with the software, but you add and subtract things creatively from the document/game until you have something that's truly unique. This will only become more of an issue as games become less linear and start to dynamically generate entire worlds for you to explore.
Your right to not believe: Americans United for Separation of Church and
"Moreover, EULAs play an important role in curbing software piracy"... "EULAs inform end users that making extra copies is not permitted (except for backup purposes) and that the software publisher is serious enough about enforcing this point to provide a written notice."
Ooh, a pages-long written notice written in such meaningless legal-ese that most people couldn't understand it if they even bothered to read it! Ph33r!!!
That'll be almost as good a deterrent as writing 'Do not make illigal copies of this disk' on Microsoft Windows CDs!
If companies want to clarify thier point, they should do it in a way people can actually understand and will see and read. Example:
This program can only legally be installed on one computer.
Ten words. Make it, say, 18-point and show it in the background as files copy. This will 'inform' people.
Michael
...another comment from Michael Tandy.
"Goodness me, how unlike the FBI to abuse the trust of the American public." -- The Onion
EULAs, like old deed stiplations from the 50s that restrict the race that owners can supposedly can sell to, are in all non-UICTA states, nothing but legal fiction.
One of the most fundimental tenets of contract law is that you must be aware of the terms of a contract before you commit to it. EULAs do not appear until after sale, and thus are entirely invalid, whether you click "I agree" or not.
Some more creative laywers have tried to get around the law by saying "If you don't agree, you can return the product for a full refund". However, even if you *could* return the product this way (which you typically can't), this would not be enforcable. You paid your money, the store gave you the product. That was the contract.
The only part of EULAs that are enforcable are terms that are generally against the law anyway - like copyright violations. But those are enforcable with or without EULAs.
90% of civil contract enforcement is based on intimidation and taking advantage of legal ignorance.
"By playing this game, you hereby give up your right to have a life outside of video-game playing, and shall spend hours on this game until completed. You shall also spend every waking hour that is not spent playing this game, talking about how cool this game is to all your friends, even if they do not have the system required to play the game."
Or you'd think that was in there, by how some people act.
After reading the EULA for Quake 3 I was so incensed that I drafted and mailed a statement denying my aquiescence to the contract to both Loki and to a friend who could witness that I did my best to show that I do not accept the terms stated in the EULA if it ever came to a legal proceeding.
I consider that having paid for the product, that I own it; and if someone tries to modify that ownership after it has already been alienated by including the text of a contract in the box that states among other things that I won't ever sell the product to someone else, there isn't any reason at all that I should accept that contract.
I made it completely clear in my letter that I do not accept the contract, and I urge anyone else who feels the same to send a similar message.
Interestingly, I did eventually get a mail back from Loki with some free legal advice, so I wrote back a reply reiterating my argument, stating that I did not accept their argument, and that I was willing to test our difference of opinion in court if necessary.
But I mostly did that because Q3A is the most onerous of EULAs I have ever seen. Other EULAs leave a lot to be desired, but they don't usually take away basic rights that you have in owning the copyrighted material and grant you nothing in return.
(Loki tried to argue that by using the product I had to agree to the license. But use of a product is not a protected copy right, so I disagree with their argument; I am fully within my rights to use a copyrighted work, whether I've agreed to a contract or not. IMHO, of course. IANAL.)
LibBT: BitTorrent for C - small - fast - clean (Now Versio
If the EULA says to return for a full refund of you don't agree, and the vendor refuses a refund because you didn't agree, aren't they violating the agreement? Wouldn't that void it, since you disagree and they disagree, there is no agreement. Now that the box is in your hands, with no licensing agreement you own it.
(Microsoft) won't take its software back.
Can you blame them? If you were Microsoft, would you want your software?
The problem with EUAs are that they are not contracts, yet most governments treat them every bit as binding as your mortage agreement which took seventeen signatures and nine attorneys to validate.
The law has thrown away common sense when it comes to information. In every other type of contract or agreement in the world you need either a) a face-to-face handshake or verbal assent, or b) a signature. Only in the software world do you get licenses that say "by using this software you agree to...".
If a company wishes to provide a level of permission to the user equal to or greater than what copyright provides, then a click-through or shrink wrap license is fine. But if they desire to remove any rights that you already possess, then they need to get your explicit consent.
Sure, getting signatures and stuff is going to crimp the style of software manufacturers. But so what? The industry practice of unilaterally imposing private law (a contract) on me crimps my style as well! If I purchase a box from a third party retailer, I expect full legal rights to use the contents in any lawful manner.
Imagine the following license inscribed on the barrel of a number two pencil: "By using this writing instrument, you agree not to let any other party use the instrument, nor disassemble the pencil for any manner; this pencil may only be used in conjunction with approved writing surfaces; you must surrender the pencil upon demand."
A Government Is a Body of People, Usually Notably Ungoverned
Software: Pagekeeper
:-)
EULA return policy: The place where you bought it, or us for full refund.
So, I wrote an e-mail...and got no response. Called, and was told there was no way to return the software. Asked for names, then asked to speak to a supervisor.
Said supervisor said they would call back. VP called back in 2 hours, said "no". Asked him to place that in writing, and mail that "no" to me.
3 days later, VP called back and gave me the address to send the software back to.
Sending back software is a good idea, but it takes alot of time and effort to obtain the end goal. And some (Microsoft) won't take its software back.
If it was said on slashdot, it MUST be true!
The paper defending EULAs that he links to and quotes is more interesting than the article itself. The part where they explain (*cough*) why copyright laws are insufficient is particularly riddled with bias and newspeak.
Oh, that is just so lovely and thoughtful. Those rights granted under copyright law are so obscure and full of legalese; people need a nice simple and easy-to-understand EULA. Take people's rights away from them, so that they will have a better understanding of what rights they have left! I like how they use the word "teach" where they mean "bluff". Copyright law prevents unauthorized redistribution. Copying something onto many computers that you own, is not redistribution. You're still the only one who has it. EULAs do not "inform" the user that they have fewer rights than would otherwise be granted under law; they stipulate it. EULAs cause those rights to be lost (if the user agrees).I could go on and on picking at this piece of crap, but I think I'll save my bile for another time and enjoy the rest of the day.
Oh, and in addition to bullshit, there's one interesting passage that brings a sincere grin to my face:
Take heed, MPAA! I happen to agree that sufficiently unconscionable terms, when exposed to enough light, have the potential to influence the perceived value of a product. It is interesting that DVD movies come with so many restrictions and downright secret terms (such as the conditions for authorization to circumvent, as required by DMCA) that are not mentioned on any EULA that comes with them. One could speculate that the purpose of DMCA was to make it so that MPAA didn't have to include nasty-looking EULAs with their product, which would scare away consumers. Cockroaches love the dark.---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Is it really? Let's look at the three statements that the article identifies as being most common in an EULA.
1) "First, there is always an assertion of the company's copyright and ultimate ownership of the intellectual property represented by, and associated with the game"
Is this really necessary? Either the company owns the code or it doesn't. What the end user happens to think about the matter is of no effect. If someone steals my car, will I not be able to press charges unless I had previously made the thief agree that the car was mine? Proof of ownership is not a matter for EULAs, but for property law, unless you think I should put a sign on the car door saying "By touching this car, you agree that...."
2) "Second, there is always a promise that the game (or its associated documentation) will not be copied or shared" Again, this is not a matter for EULAs, but rather for copyright law. I am not prevented from photocopying a book or the work of a professional photographer by an EULA or even a copyright symbol, but rather by copyright law.
3) "The third promise every game obtains from the user is that they will not try to reverse engineer or modify the product in any way using the program they've received." This is a more debatable matter, and one I'm not going to get into in this post, except to bring up the "car with the hood welded shut" example and to note that while such provisions are of course beneficial to the software company, they have questionable value to society as a whole.
Why is it that the software market enjoys this unique priviledge of a prohibition on reverse engineering? (Yes, I know that computer make it a little easier, but that is beside the point.) I understand that software developers don't want people ripping off their ideas, but is this really good for society? What if, for example, Gillette had sued Shick for ripping off the idea of the disposable razor and thereby locked up the disposable razor market? "Your honor, we submit that it would have been impossible for Schick to develop a disposable razor without reverse-engineering ours. We even have evidence that a janitor at Schick corporation once saw a Gillette razor!"
Instead, Gillette has to rely on making better and better razors, which I would argue is good for the consumer and society as a whole. (Just think of all the extra trees we'd have to cut down to make toilet paper to dab up the blood from the nicks and cuts from straight razors.)
Anyway, this is all a tangent (it looks like I "got into it" anyway), and I suddenly feel the need to shave.
Maybe there should be a poll on this - How many Slashdotters actually make it through the first paragraph of a software EULA? For games, I don't think I've ever read a EULA. For some of the more expensive software, sure - I may have read a page's worth. Who, really, WHO? -reads these things?
Evan - needs to hit preview before submitting
The following is an email I sent to Bruce Rolston, the author of the article.
______________________________________________
Shrinkwrap license "agreements" are a hot-button issue for me, so I was disappointed when I read your article, "Look Before You Click" (linked to by Slashdot).
I wrote an editorial putting the case against such "agreements" over four years ago, which was published in MicroTimes. The text is on my Web site:
http://www.best.com/~ewhac/belarfnq/shrinkwrap.htm l
I have two primary objections to license "agreements" as currently practiced.
First are the terms of the "agreements" themselves. Those which are not a redundant statement of existing law I find to be completely without any ethical foundation whatsoever. In particular, I most strenuously object to anti-reverse-engineering clauses. Indeed, you make reference to these clauses in your article:
That's correct. I argue that it should be impossible to prevent people taking apart their software, at least within the scope of mass-market software that is sold over-the-counter.
The software industry spends billions every year on research and development. But as large as this sum is, billions more are invested by auto manufacturers in the development of new cars. When finally released for sale, auto manufacturers routinely purchase the products of their competitors, take them apart bolt by bolt, and figure out how they were designed and built. And they use the knowledge gained from this to improve their own products.
The auto industry doesn't have a problem with this practice. I therefore fail to see why the software industry has any business objecting to the very same practice.
You also cite the writings of Microsoft's legal department:
Frankly, I'm surprised that you re-printed this; it is devoid of logic, or even common sense.
There is no logical path between taking apart your software and software prices rising, any more than there is a path between opening the hood of your car and car prices rising. Indeed, the argument can be made that allowing people to take apart their software will drive prices lower, since people will more readily be able to analyze and identify jewels from junk, thereby lowering the price of junk (#include <gratuitous_microsoft_bash.h>).
Furthermore, the fact that most people have no interest in opening the hood of their software -- or their car -- in no way justifies obstructing people who do. Humans are naturally curious; they are going to take stuff apart and figure out how it works. It is an unalterable fact of the marketplace. Tune your business model accordingly.
My second primary objection to EULAs is the mechanism by which these so-called "contracts" are put in force. In short, any vendor anywhere can place any restriction on you they wish, without reasonable prior notice, and bind you to it using the most tenuous forms of assent.
Frankly, I should not have to take a contract attorney with me every time I go shopping at Fry's. The mechanism used by these "agreements" is fundamentally unethical, and wide open to egregious abuse:
If shrinkwrap "agreements" are enforceable, then what is to prevent retail sales of any item being replaced by "licenses?" Consider what would happen if Sears started selling their hammers only under "license:"
You see two hammers on the wall. One is the Craftsman Personal Hammer; the other is the Enterprise Edition Hammer. The Personal Hammer comes with a "license" forbidding you from using the hammer to build objects intended for sale, or Sears will sue you. The Enterprise Hammer "license" allows you to build object for sale, provided you kick back to Sears 1% of the gross sale price. The Personal Hammer costs $30.00; the Enterprise Edition Hammer costs $500.00. As far as the hammers themselves are concerned, in all material respects, they are identical.
Would you tolerate this? Would you take Sears' "contracts" seriously, especially if there were no record of you actually signing it? What if your minor child bought you the hammer as a gift? Whom does the "contract" bind?
"Well," I hear you say, "I'll just buy one from Home Depot." Surprise, surprise, they just changed all their hammers over to the same scheme last week. Further investigation reveals that you can no longer buy a hammer any more; you can only "license" them.
Relying on the doctrine of unconscionability is also a non-starter. Litigating a contract dispute is ruinously expensive, even if you're in the right.
The idea is worse than ridiculous, it is dangerous. The opportunity for abusing consumers is monumental. It is in fact already happening. DVD CCA is suing Jon Johansen (a foreign national) for his work on DeCSS, the DVD descrambling code; the suit is predicated on Johansen's alleged violation of Xing Software's "license" forbidding reverse-engineering. Mattel managed to arm-twist an out-of-court settlement out of Eddy L. O. Jansson and Matthew Skala for developing and publishing a program that decrypts the blocklist of CyberPatrol, a censorware package; the attendant "license" forbids reverse-engineering.
This method of forming contracts is grossly unethical, and should not be allowed to stand. It is for this reason that I do not, and have never, taken license "agreements" seriously.
There are many other points in the article I could raise, but this is already too long. At the very least, I hope, in part two of your article, you will give time to the opposing viewpoint. My sincerent thanks for your time.
Schwab
Editor, A1-AAA AmeriCaptions
Obvious response...
I would like to see someone install M$ Office with the installer and have it work.
Hopefully I didn't put any [] around my words.
EB's actual return policy is to give a full refund for the software if all of the original packaging and materials are present. You have ten days with a receipt.
And, back when I worked at EB on the weekends, I saw a few people return games based on the EULA. Including most copies of Microsoft's MMORPG, Asheron's Call. From what I understand, it has a very restrictive EULA regarding ownership of characters and such.
not read the eula? never hit I agree? because anything the install does you can do by hand. Sure it's a heckuva lot harder, but you know what is installed where, you aren't viloating the agreement, you never clicked or even saw it..... Never have I seen any kind of packaging that states you must run the install.exe as the only means of installation.....
Would go a bit like this:
"...With my purchase of (insert vendor name here)'s software, the vendor agrees and acknowledges that
-I will be installing said software on all CPUs that I own.
-I will be making as many backup copies as I deem necessary.
-I have the right to create,own,and patent new works with vendor's software (e.g. screen shots, peotry, documents, art, methods of computing, etc.).
-I will allow friends and family to use vendor's software as long as the computer it is installed on is owned by me.
-The vendor must protect my privacy (protect my registration information, may not sell my registration information to anyone)
-the vendor must provide me with reasonable software support and maintenance,
-the software soure code is held in third-party escrow and will be provided to me should the vendor go belly-up.
-etc, etc,etc...
It never rains in Seattle... -Mike
To the law, clicking "I agree" is different than buying a toaster, even if you wait to flip through the warranty papers back in your easy chair at home: you've still bought that toaster. (The difference has been that most appliance stores would take your toaster back if it turned out you disliked the warranty for some reason: computer retailers have often been less understanding.)
The other (real) difference is that the warranty on the toaster amounts to saying "If you do certain things, we don't have to replace this toaster", whereas a toaster with an EULA might say "You may not allow your friends to make toast with this toaster. You may not toast anything but white bread in this toaster. Once you plug this toaster into one outlet, you may not move it to another outlet. By opening the box to this toaster, you agree that if this toaster explodes and burns down your house, we are not liable, even if we knew about the exploding-toaster bug. This toaster and any toast you make with it remain the property of Hyper-mega-toaser-co, Inc."
The typical EULA is nothing like the typical Warranty. The former attempts to retrict the ways in which you may use a product, while the latter just says that if you do stupid things with the product, the company is not liable for any damage you might cause.
I know that Future Shop will refuse to take back the product. And we know that Microsoft normally won't either. So what can I do?
Can an EULA possibly be enforcable if it is impossible for me to reject it? Is it up to the retailer to ensure that I am able to reject it? Or is it up to the manufacturer to refund my money if I will not accept the license? Anyone know?
Oceania has always been at war with Eastasia.