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."

Comments

reverse engineering

[ethereal]

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. Keeping this protection is at the core of what differentiates owning the software from licensing it. If software companies ever had to transfer ownership of their work when they sell it, it would be impossible to prevent people from taking it apart and figuring out how it ticks. But because these are license agreements, and intellectual property ownership continues in the law to reside with the company, game companies can prevent rivals from stealing their software innovations for their own purposes.

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.

EULA enforcability is a fiction...

[StevenMaurer]

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.

Re:Returning software

[mr]

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.

The EULA defending paper

[Sloppy]

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.

Proponents of not using EULAs fail to recognize that most purchasers of mass market software have little knowledge of their rights under copyright law. Most of these customers have probably never heard of the doctrine of first sale, the doctrine of fair use, or section 117 of the Copyright Act.

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!

Moreover, EULAs play an important role in curbing software piracy. Despite the attempts of software industry groups to teach the public that copying a software program onto a second computer is equivalent to stealing a second copy of the program, many people still confuse the ease with which one can copy with a right to copy.

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 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.

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:

Rather than relying on their own negotiating skills or knowledge of the relevant law, most users are better served by relying on the contract doctrine of unconscionability, the contract principle that agreements should be construed against the drafter, the copyright doctrine of misuse, consumer protection laws, and the intense competition within the software market to obtain advantageous terms in acquiring software. The personal computer software market has been particularly unforgiving of companies that try to license software on unreasonable terms. The information superhighway magnifies the negative public relations consequences for software publishers who are perceived as behaving badly; criticism on the Internet and on computer bulletin boards is swift, blunt, caustic, and spreads quickly. Software end users have even formed associations to monitor and influence the license terms offered by software publishers. As one user association official explained, "[l]icensing issues cannot be a barrier to accepting new technologies. If so, it's only the vendors who will suffer."

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.
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Obvious Question: Who read the EULA?

[chancycat]

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?

Re:Obvious Question: Who read the EULA?

[rabidcow]

I sometimes (well now ya know what I do Friday nights...) read through them, but I have a note here to anyone writing anything that needs to be read:

NEVER WRITE WHOLE PARAGRAPHS IN ALL CAPS. I WILL NOT READ IT. I DON'T CARE HOW IMPORTANT IT IS, LEARN TO USE BOLD OR DIFFERENT FONT SIZES. ALL CAPS PARAGRAPHS ARE EXTREMELY RUDE.

My Email to the Author

[ewhac]

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:

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. Keeping this protection is at the core of what differentiates owning the software from licensing it. If software companies ever had to transfer ownership of their work when they sell it, it would be impossible to prevent people from taking it apart and figuring out how it ticks. [ ... ]

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:

They argued that most people have no interest in looking under the hood of their software. But software publishers who sold their product outright would have to assume that some people would, and raise the price for everyone accordingly in order to be confident of recouping their investment.

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:

• There is no restriction on terms. The vendor can declare anything they want,
• There is no adaquate notice given to the consumer that an onerous, binding contract is being formed,
• There is no adaquate notice of the terms of the contract,
• The contract attempts to alter the terms of the transaction after the fact,
• Assent to these contracts is established by the most tenuous -- almost unconscious -- acts.

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

Re:Good luck...

[Kingfox]

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.

How About A User's EULA?

[The Groundhog]

Has anyone ever dreamt up the EULA from a consumer's position? Maybe someone should, in order to let all the software companies know exactly what we consumers want to agree to.

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

EULA vs. Warranty

[Corgha]

From the article:

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." ... and so on.

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.

Returning software

[yamla]

So if I read an EULA (after opening the box, of course) and decide I do not agree to it, what is my recourse?

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?