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Selling Your (MMORPG) Soul
Gnpatton writes: "Here is an article about the recent ruling in the Blacksnow/Mythic case. It talks about the EULA (End User Licence Agreement, that thing that you never read) and about how this case might affect the rest of the software industry, not just with game companies. From now on, you might just want to read the EULA before you click 'accept'."
Of course, this doesn't apply to all pre-installed software. A number of programs that come now require you to agree to an EULA before you are allowed to use the program, but what about Windows or any software that is pre-installed that doesn't require you to do so? If the user never clicked 'Accept', can he/she still be bound to the EULA as if he/she had clicked it, merely by using the software?
what if i don't agree and want my money back? do you think i could go up to best buy and say "hey man bought this game becasue it looked cool, but I don't agree to the EULA so can i have money back?" i'd be laughed out of the store. i say if a software co. want us to abid by their EULAS then they must print their EULAs in easy to read (for those that have poor eyesight) printing on the outside of the box, and we must agree to the EULA before we purchase software. OR they need to force stores that do not accept open software returns to start taking returns. Either way the software co. loses, either giveup precious advertising space on their software package, or try and do battle with the stores that pimp their software out.
Image if you were buying a bed and you were asked to sign an agreement first.
Or rather, imagine if a tag on the underside of the bed read "You agree to the agreement on our website just by laying on this bed." And courts upheld it because of some obscure twist of logic (the way they say making a copy of the software you bought in RAM is a copyright violation).
As for this ruling, well, is it for the SERVICE or for the SOFTWARE. If it's for the service, the position isn't as clear, because you didn't buy anything, you agreed that if you do such-and-such, the service will be provided to you, and if you don't do such-and-such, it won't.
But if the EULA on the purchased SOFTWARE was found to be binding, we're in DEEP SHIT TROUBLE, you better believe it.
Software End-User: Ha ha! I found a way to use the software in a way that Microsoft doesn't want, but still meets the terms of the EULA!
Microsoft HQ: Ieee! They found a loophole in our EULA! Quick! Mutate the EULA terms every 15 seconds! On my mark... go!!
End-User: Ahhhhhhrg!! They're mutating EULA frequencies! I can't keep up with the changes! I might be violating them and I won't know! *KNOCK KNOCK* Uh oh, it's THE KNOCK! The cops are here! *dragged away at gunpoint*
Microsoft HQ: Whew, that was close! Reduce EULA rotation frequency to the usual once per day.
I guess I don't have sufficient legal background to be talking, but my common sense tells me that this is absurd. You buy some software, but before you can use it you're required to give up some rights that you have been given? The doctrine of First Sale (conceived, iirc, in a case about contracts printed in books that said you couldn't resell the book) seems to apply here as well: why should you be forced to give up some of your rights in order to use a product you've bought?
JBuilder has it in their EULA that by using their software, you waive your right to a trial jury in case you file any suits against them. Basically, the purpose of these EULA's are to rid the companies of as much liability as possible and still have control over their software as they see fit. Personally, I don't blame them, and as long as people continue to agree to them and just whine about it (as opposed to doing something), it'll continue. Eventually, I'm sure restrictions will be made, but not until something that REALLY screws up PR between the public and someone like, say, Microsoft, happens. So, anyway, just read your EULA's once in awhile. It's almost funny how much crap you're actually agreeing to just to use a little bit of software.
Danish != nationality
Heh. Cute, Timothy.
Especially considering the shit the Slashdot crew pulled when "Fascdot Killed My Pr" sold his account. And that was with no EULA at all to support you. You just screwed with him.
At least with a EULA we know our rights.
Dragging people kicking and screaming into reality since 1996.
EULA's that have the text inside the box where you can't see it until you've agreed to it aren't enforceable, that has been decided in the past (IIRC, likely someone here who remembers the exact case). That's why most boxed software has some sort of seal on the software media itself stating that by breaking that seal you are agreeing to the terms - by then you have the box open, and can read the terms enclosed. That arrangement is likely to be enforceable. As long as that seal is intact, and all of the other contents are as they were when you got it, most retailers will take it back - they may have to, as those licensing terms almost always state that if you don't agree, you need to return the software unopened to the point of purchase for a refund. (They've all got shrink wrap machines, they'll usually just put it right back on the shelf before you've even made it out of the store. Doesn't mean that it will be easy, just possible.) If you broke the cd seal (or opened the little bag the floppies were in, if you remember that far back), the retailer will usually assume that you made a copy and are trying to rip them off, and refuse to take it back. Besides, then it's much harder to sell it to the next guy as new. Moral: don't open that seal if you don't want to be stuck with the software or the EULA.
The click-thru EULAs have the text right there on the screen, so there's no excuse that a judge will accept for not reading it. Particularly those that make you hit some odd key or a non-default button to continue, so that you can't argue that you'd accidentally hit enter too many times and never even saw the EULA screen. Even getting a kid to do it won't work, since they would be considered to be acting as your agent. A minor who bought the software with his own money and clicked thru *might* get out from under, since he can't be bound by a contract and his parents were not involved (which would bind them, if not him), but don't bet real money on it.
Really, by arguing under what circumstances the EULA is or isn't binding, we're already conceding the biggest point: that a licensing model should even apply at all to software. I'd much rather see it treated under the law as a book or CD, my property to dispose of as I please subject to the doctrine of first sale. I can tear out pages, draw on it, loan it to friends, whatever I want. That's the fight we need to focus on, not minor little bits regarding the fine details of consent without a paper signature.
You're just jealous 'cuz the voices talk to *me*
Most EULA's today have a clause that says something to this affect
"Any minor that agrees to this contract, and uses or installs software most obtain consent from a legal parent or guardian"
With this in hand, it is difficult to say 'but my kid installed it' as LEGALLY the kid cannot use or install it without your permission. Notwithstanding this a good company lawyer could say that a reasonable parent would monitor the programs that a child installs on your computers.
This is sure an issue that will feed the lawyers for a while
Medevo
The aricle's author(s) complain that you now have to read an agreement before agreeing to it. Well, no shit einstein! That has always been the case, so this ruling adds nothing new in this regard. What is more interesting is that the EULA was upheld as a whole.
The article doesn't make it clear whether it was the "license" for the service or the actual software that was upheld. The difference is important. I never played whatever game Mythic was producing, but I do know that if you play Diablo, you need to agree to the terms of use of Battle.net separately, if you choose to use it.
Having the terms of use of an online service upheld is reasonable since you have the ability to read the agreement and agree to it prior to using/subscribing to the service, or disagree with it and choose not to use it.
The same is not true for shrink-wrap "licenses". You cannot read the agreement prior to buying the software. By opening the box and installing the software you automatically agree to the "license"... oh, but to see the "license" you need to open the box and install the software! Now, supposedly if you disagree, you can take the software back to the store and get a refund -- but we all know how well that works... So, in effect, you are coerced into accepting whatever terms the software vendor feels like putting in the "license".
The courts have traditionally been sceptical when it comes to enforcing the so-called EULAs. The two supporting cases that I know of are Step-Saver v. Wyse Technology and ARS v. Software Link. There is, to my knowledge, only one case where EULA was upheld outright, "provided that its terms are reasonable" -- ProCD v. Zeidenberg. Interestingly though, that case involved not software but a telephone book on CD. Had the court not held the EULA enforcible, anyone would be free to copy the CD, since, according to the US copyright law, public data (such as names and telephone numbers) cannot be copyrighted.
___
If you think big enough, you'll never have to do it.
>Mythic maintained that (as per their EULA) they owned their virtual world and all property in that world.
Without details of the actual court ruling I can't be sure, but this doesn't sound so unreasonable. The virtual world is being hosted by Mythic's servers, right? Claiming ownership of data residing on their own servers is not so far-fetched. If they want to rent out time and virtual 'property' as part of the Terms of Service for connecting to their servers, that's their prerogative. After all, running those servers does cost Mythic resources. If you want to use their servers, you agree to their terms; otherwise, you play offline, on competing servers, or not at all. It sounds like a Terms of Service issue, not a EULA one.
All this is *very* different from sanctioning EULAs in general. In most situations, you're not connecting to or storing data on the vendor's server. I could not imagine Microsoft laying a successful legal claim to all the Word documents ever generated by Microsoft Office.
Likewise, I can't see this decision being extended to cover every EULA term ever devised. It seems like a very circumscribed case dealing with a very specific issue: who owns the data on Mythic's servers? I suspect even if Mythic's EULA never mentioned ownership of virtual property, the court would still have ruled in Mythic's favor.
Of course this is all just guesswork on my part. IANAL.
Democracy is two wolves and a sheep voting on lunch.
It's more than just that, however. This is a case about Mythic asserting its right to control data on its own servers that're the indirect reflection of the user's interaction with the game.
Personally, I think the simplest solution would be if Mythic had decided to just provide the person with the virtual data that he was so worried about. The catch, however, is that they'd cease hosting it on their servers. So the plaintiff would have a copy of his character data, but it would no longer be part of the game.
An End User License Agreement effectively grants copyright holders rights the congress has not bestowed upon them.
This has profound implications for all consumer goods. Imagine if Ford used an EULA for their on-board computers. If you don't agree, you can keep the car, but the software (and your ability to use the car) will be disabled.
The makers of a SmartFridge can claim the right to keep track of anything you put in your refridgerator.
Copyright holders can claim that anything you do with their software belongs to them. You use MythicWord to write a your doctoral disertation, and Mythic owns the copyright. This is exactly the precedent the court has supported. You develop a character using Mythic's game, and they own your work.
Congress has the power to grant copyrights. Aside from some constantly expanding experiation date, are their any limits on those rights?
With this in hand, it is difficult to say 'but my kid installed it' as LEGALLY the kid cannot use or install it without your permission. Notwithstanding this a good company lawyer could say that a reasonable parent would monitor the programs that a child installs on your computers.
Interesting...but if the kid can't be legally bound by the EULA to begin with, isn't it reasonable to assume that he/she/it can't be bound by the clause of the EULA that says they need a parent/guardian's permission?
Would someone please post the EULAs for Windows 98, 98SE 2000, XP, the service packs for those OSes, for Office 2000 and XP, and their service packs, and SQL Server 7 and 2000 and their service packs, and for Exchange 5.5 and 2000, and their service packs? I don't have them handy. This might be a great way to alter my next year's budget, which I'm making out now. s/Microsoft/Free Software/, if you get my drift.
It would be even handier if someone could point out the heinous sections of each EULA.
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
So random people in college computing labs, or public libraries, or internet cafes, etc. must not be bound by the EULAs, since they never "accepted" any license, contract, agreement, etc.
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
I tried getting support for my laptop and they said that I couldn't get any help unless I ran the OS that came with it, namely, Windows XP. So, how valid is that EULA when I HAVE to click "I accept" or effectively invalidate my warranty?
What this case is about is selling Mythic's intellectual property on eBay. Actually, no, they're selling an item on Mythic's database on eBay. That's the programmers term for it. They are selling the right to that symbolic link on Mythic's server. The SERVICE EULA forbids this.
It just so happens that the software cannot be run without the service. Much like how your telephone can't be used without the telephone service. (House phones, not cell phones with the nifty games.)
I fully believe that MMORPG developers have the right to not allow links on their database to be sold on eBay. Now, if the developer gets ROYALTIES for each link sold, then that would be okay. But I don't see any of these people paying Mythic royalties for selling Mythic's property...
I had never thought of it before but when a person buys a computer from Best Buy, I use them cause I use to work there, they take the computer home turn it on, and then they can either agree or disagree to the EULA which is the first thing they see. NOW in that case they decide but what if someone decided for them. More specificly what about the free setup that Best Buy offers when you purchase a computer. I personal setup hundreds of computers and always blazed right past the EULA cause I was in a hurry. No where on any of Best Buy's paperwork does it say that Best Buy is going to agree to the EULA for you or tell you that they are doing so. My question is does the EULA still apply to the customer that purchased the machine? Now that I think about it, it is kind of like someone forging a signature and more importantly if the customer finds out about the EULA from a someone, would Best Buy be obligated to take the machine back if the person didn't agree? I'm not a lawyer so if anyone has any idea I am curious.
Except it's not simple, because Joe Bob doesn't go to CompUSA and buy the right to rent WinXP, he goes to CompUSA and buys WinXP. That is: If the folks at CompUSA tell Joe he's buying WinXP (because it's what they give him when he asks for it, and they don't say anything about a rental agreement, and they write up a "bill of sale", etc), then CompUSA sold Joe WinXP. Once again -- if it looks like a sale, and quacks like a sale, and the folks doing the selling don't say different before the money changes hands, it's a sale. If CompUSA were to sell Joe the right to rent WinXP, they'd need to make sure that Joe understands that that's what he's buying when he forks over his money -- and that simply isn't the case. There's adequate case law backing this up in non-software-related fields.
IANAL, but my understanding is that I can't validly commit my employer, unless I am a corporate officer or acting under direction of one.
This means, for example, that if I issue a purchase order, in the course of my proper duties, it is valid -- and the bill will be paid.
If it is outside my duties, e.g. a complete set of backissues of Astounding, delivered to my home, the bill won't be paid, no contract binds my employer, and the seller sues my ass. And likely my employer fires me.
So, when I click the infamous Accept button, where are we? In a grey area. If the company doesn't like those terms, the argument that they are not a contract with the company is fairly solid. My expertise is not in matters of law, but of software. I am not a corporate officer. Thus I could not bind the company. But the company bought the software -- without seeing the click-through agreement.
Incidentally, for non-shrinkwrap software, it's not uncommon for the license to go through corporate legal. Often it takes weeks and several iterations. It's why companies are often in law suits -- and rarely let that fact bother them.
I take the software company to court for selling my personal data (for example) . I contend that the EULA was not presented to me during the install and that possibly a very low-level bug caused this and it may only occur when one clicks buttons on a certain computer at a certain speed (or some other obscure combination of circumstances). In order to make my case I need to disassemble the software. But the DMCA does not allow me to do this.
Is the EULA ruled not enforceable at this point because the DMCA precludes me from proving this? Or must the DMCA be set aside for me to make my case?
Buy by credit card.
If they won't give you a refund, do a chargeback.
Just because it CAN be done, doesn't mean it should!