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'."

Comments

but you don't sell accounts

[blablablastuff]

just logins and passwords your password is your own property

Ouch.

[moyix]

An EULA held up in court, despite the fact that no one ever signed anything, and there were no witnesses... this sounds like a really bad ruling. My guess is that it will be appealed, and eventually struck down. Either way, I think this case is going to be big...

Re:Ouch.

[Fulcrum of Evil]

And it isn't like you are totally bound by this. If you purchased the softwared, decided that you didn't agree to the EULA, then you can return it. End of story.

Yeah, like you can actually return the software for a refund. Try it sometime - it won't work

It is not like this is totally out there - these agreements popup BEFORE the software installs and they blatently say - IF YOU AGREE TO THIS CLICK HERE!!! What is so hard to understand about that?

It pops up after you've bought the software and opened it, thus removing your ability to back out. Since this gives you the option of clicking on agree or waving goodbye to your cash, I doubt any sane person would hold the EULA enforcable.

Re:Ouch.

[Erasmus Darwin]

"An EULA held up in court, despite the fact that no one ever signed anything"

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.

Re:Ouch.

[Arandir]

But the fact of the matter is that you are agreeing to give up said rights.

I haven't agreed to any such thing. You cannot consider my use of the software (including its installation) to be evidence of acceptance, since I already possess the right to use (and install) the software by virtue of purchased it commercially. You haven't rented, leased or licensed it to me. You sold it to me.

Imagine you just purchased a new car for zero down and zero percent interest. Sounds like a good deal? So you sign the papers and go to your new car. But there stuck to the steering wheel is a piece of paper that says "by driving this car you agree to immediately refinance you car for $10,000 down and 10% interest. Just an "agreement" wouldn't last five seconds in a court of law. Yet this is essentially what EULAs are doing. You have made an commercial transaction to obtain the software, which grants you the right to use and install the software according to both the US Commercial Code and Title 17 Copyright Law. But upon attempting to use and install the software you are presented with a different agreement which is in opposition to the commercial transaction.

Re:Ouch.

[Erasmus Darwin]

"You could try to keep a MD5 of the user's char on a server at compare at runtime."

I think you misunderstood my point. Character data for the game world would continue to be hosted on the Mythic server. However, Mythic would send a copy of the savegame file for the plaintiff to him. They would then remove that savegame from the server.

The result is that the plaintiff has a copy of his character's data (i.e. the information that is the basis of the lawsuit), but the character's data no longer exists on the Mythic server and thus no longer exists in the Mythic game world. The plaintiff would have all the bits that made up his or her character, but it'd be utterly worthless as said bits would no longer affect anything.

The beauty of it is that it underscores the entire problem of the suit. The suit wasn't about knowing or copying certain data or even owning an exclusive copy of certain data, but rather about insisting that the certain data exist in a very specific place on Mythic-owned server. Since attempting to control someone else's server in that manner is somewhat ludicrous, the complain was disguished in the form of data ownership. But if that were the case, Mythic could merely hand over the data and wash its hands of the matter as I've explained above.

Re:Ouch.

[cduffy]

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.

Re:Ouch.

[arkanes]

yeah, but we all know that you can't return the software - in fact, were I a court, I'd rule that EULAs are entered into in bad faith by software companies - they have no intention of honoring returns, and thus retail stores won't do so either (as an expiriment, I should order direct from Eidos or something and see if they honor a return...). If they're going to bind you to an EULA, that includes clauses for returning (opened) software, then they have an obligation to accept those returns.

What about pre-installed software?

[grape jelly]

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?

Huh?

[delta407]

Doesn't everyone read the EULAs?

Re:Huh?

[Anonymous Coward]

Heck, I didn't even read the article, can you give me the jist of it?

That was one weak article

[Kuato]

I'm not sure how that article made it to Slashdot. That was one helluva weak article. It might have helped if it had some information other than 'bevaaare!'

Eh?

[MisterBlister]

Just because the Judge ruled that they do, in fact own all the 'virtual property' in the world (and why shouldn't they? its all just bits on the harddrive in their server) doesn't really say anything about the general applicability of EULAs. The time to start worrying is when some ridiculous clause of a EULA (Microsoft..Most P2P software) is broken and enforced, not when something that seems pretty much like common sense is enforced (regardless of whether it was mentioned in the EULA....)

read the eula?

[isbhod]

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.

Re:read the eula?

[ryepup]

maybe thats what people need to do, is going in groups to best buy, compusa, wherever you get software, buy it, refuse the EULA, and return it as a group. More than one person returning it can't be laughed out of the store. The more hassle it is for the local vendors, the less they will want to deal with that kind of crap, and maybe stock different things, and the effect will go up the chain to the software publisher that made the EULA so frickin stupid in the first place.

If anyone is in Gainesville, Florida and wants to try this, I'd be game. Reply.

Re:read the eula?

[dattaway]

Stores do not like unhappy customers. Better have a lawyer to protect your rights, because they store is likely to call the police for crowd control and have you guys bused off to the station for processing.

It seems expensive to fight big companies.

was it on the service or the software?

[Dr. Awktagon]

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.

Re:was it on the service or the software?

[Bios_Hakr]

Ok, I'll take a stab at telling you why EULAs are bad.

1. You don't sign an EULA. In order for a contract to be valid it must be signed by both parties and the original must be given to the End User. There is no reason Microsoft couldn't release Digital Sig 1.0 today and require that a EULA have a valid sig. If you wonder why the YES/NO thing is bad, as yourself who installed your mom's software. If a third party installs software for your mom and clicks yes, should she be held accountable for an agreement she never saw? Or is the third party the one bound to the EULA?

2. EULAs are not easy to understand by common sense. If I buy a car, I can use it anywhere. I can let anyone ride in my car. I can let anyone borrow my car. Why is a Win98 disk any different? You can say that the disk is easy to copy and the car is not. That is a major factor, but I don't think the prob should be solved under legal terms. Agian, Digital Sig 1.0 could be used to authenticate a user's sig agianst a product code and compare them with a MD5 on a server at Redmond. Why haven't they done that already? If I was into conspericaies, I'd say it's because MS wants you to be doing something illegal. That way, they control you.

3. The terms of the EULA are subject to change after you agree. Right there, the whole legality of the system comes crashing down. If you and I agree to meet at 4:30pm at the MS Campus, and I show up at 6:30, who's the asshole? Well, seeing as how I changed the meeting time and posted the change on the back door of my house, you would be the asshole for not checking to see if the time had been changed. Also, what gives one party the right to change a contract and not the other. As of now, I am changing the EULA of my copy of Win2k to reflect that it is now covered under the GNU/GPL. Is that legal? After all, MS has been given notice of the change(in this forum).

Software EULA are messed up

[xinu]

Why is it that you have to purchase the software to read the EULA. What if you don't agree with it and refuse to use it at that point out of spite. You've already opened the package and can't get your money back usually. I just don't get it, never have.

Re:Software EULA are messed up

[reemul]

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.

Re:Software EULA are messed up

[Sycraft-fu]

Some important differences from a real contract:

First, there is no proof you ever clicked the button. With a real contract there is a a physical proof (your signature) that you agreed, witnessed and countersigned by a notary and/or the other party of the contract. Here, the proof is absent. They can't PROVE you agreed (maybe someone else clicked it, maybe it failed to display, maybe there is software on your system that prevents it from displaying). Remember the burden of proof is on the prosecution here.

Second, there is no room for negoation with an EULA, which is required with a real contract. You can negoate your lease agreement and so on. Now the other side doesn't have to accept your changes, but they do have to negoiate. With EULAs, this never happens. the other side never even signs the contract.

However most importantly EULAs often seek to take away rights that they just can't. There are things you just can't give up, even by contract. For example you can't sell your self into slavery.

How Mythic's EULA Works

[vjmurphy]

Unlike other EULA's, MMORPGs repeat their EULA's every time a user connects to play the game. In Dark Age of Camelot, the EULA pops up when you log in, and to continue, you have to accept the EULA.

Typically, anyone playing MMORPGs sees the EULA enough and is given the chance to NOT play the game if they disagree with the terms.

Contrast this with the typical software package that makes you agree to the EULA without actually seeing it in most cases, and even before you install the software on your computer.

Everquest has similar provisions (as will Neverwinter Nights, I would assume).

Here is the important passage from DAoC:

* You acknowledge and agree that all characters created, and items acquired and developed as a result of game play are part of the Software and Game and are the sole property of Mythic. You acknowledge that: (i) the Software and the Service permit access to Content that is protected by copyrights, trademarks, and other proprietary rights owned by Mythic as covered in Section 3 below.

Re:How Mythic's EULA Works

[bwt]

Unlike other EULA's, MMORPGs repeat their EULA's every time a user connects to play the game.

Oh. This changes everything. This is not a shrinkwrap/clickwrap style installation EULA, but a web-access EULA. The former is the highly controversial case. The latter is not -- they were settled long ago in the Hotmail case. They are enforcable and there isn't much case for saying that they shouldn't be.

Here you are actually getting something more than the ability to install what you already own (which is an explicit statutory right for the owner of a copy). All the elements of a contract are present: the parties communicate directly, there is consideration (you get access to their server, they get agreement to restrictions), and there is a record of assent (I'm sure they make some record when you click "OK", since that info is sent to them).

So?

[TheDanish]

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.

The Sky Is Not Falling

[lawyamike]

A few points about this decision bear repeating.

First, the jurisdiction of the court: the case was decided by a federal district court, a trial judge within the federal system. The Northern District of California, where the case was decided, is well respected for its expertise in matters of technology, having been the site of several important IP lawsuits and serving currently as the home to Silicon Valley. That said, the decision is binding authority only in the Northern District of California (although courts in other parts of the country may find it persuasive), and it has not been tested on appeal.

Second, the implications of the decision: the court did not decide the validity of a generally applicable statute or a regulation; it only ruled that in the facts of this case, the EULA was not procedurally deficient (for failing to give the user notice of its terms, for example) and was not substantively unreasonable (for imposing any terms that were fundamentally unfair, for example). The courts decide thousands of cases interpreting contracts each year, and they often do so by analogy to precedent. Accordingly, this decision might have no immediate impact upon the way you use software or review an EULA, but so long as this issue recurs, other judges likely will use the opinion in this case as the standard that they accept or from which they find reason to depart.

Third, the mutability of the decision: contract law is mostly state law, and most judicial decisions about the law of contracts may be overturned by the legislature. In the fields of, for example, sales, financing, and construction law, there have been enough disputes across many jurisdictions that most states have found it beneficial to enact a uniform law governing the rights of contracting parties. (The Uniform Commercial Code is the best known example of this.) Should this be a sufficiently momentous decision -- I don't think it is -- or become a sufficiently important issue -- and maybe it will -- then one can count upon the legislatures and the law professors to get involved.

Re:The Sky Is Not Falling

[johnos]

Bang on. Its worth adding that from the skimpy info in the article, it appears the judge did not rule on the overall validity of EULAs. Blacksnow, after all, was not a party to the EULA. The EULA governs the relationship between Mystic and their users. What it does or does not mean is irrelevant to the issue. Its mere existence defines Blacksnow as a third party, and so without legal standing to alter the contractual relationship.

Think of it this way. I buy a burger from Wendy's. If I don't like it, I can bring it back. But I can't sell the right to bring it back to someone else for use on a different burger. The "contract" is between Wendy's and me, and applies to that burger. I can still dispute with Wendy's about replace vs. refund, or if there is really something wrong with the burger, so the existence of the contract and its validity are two separate issues.

Modern-Day Rumplestiltskins

[guttentag]

Image [sic] if you were buying a bed and you were asked to sign an agreement first. It stated that someone else actually would own your bed, could watch what you do in it, come over and use your bed when you aren't in it, and sell anything they found out about your activities in your bed, would you be comfortable buying that bed?

Kids these days just don't put as much effort into work as they used to. A lazy salesman attatches an EULA to your bed (or couch, or carpet, or the back seat of your car) stating that anything you make in their bed (or whatever) belongs to them. Back in the old days one had to spin straw into gold to snatch someone's child. You had to work at thievery...

They missed the forest for the trees

[RelliK]

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.

Re:FUD and loathing in Las Vegas.

[mcoppock2]

Where the hell do you people shop? ... Every large chain store shrugs and takes it back without a question.

Where the hell do you shop?. I work for Target Corp., and we do NOT accept returns on software (also CDs and DVDs) that have been opened. Period. Sure, if its damaged, we'll give you a new one. But if you simply don't want it, you're SOL. Once you break that seal, you're screwed. I suspect other large retailers have adopted similar policies, although I'm not sure. Anybody else know?

sounds like TOS not EULA

[eddeye]

>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.

Copyright is getting too powerful

[smiff]

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?

Re:Just get someone else to install it for you.

[Genom]

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?

It's OK

[peterdaly]

I always have someone else click "accept" for me anyway. That way I don't have to agree to the terms. Shared machines are even better, chances are you don't even know the person who clicked accept.

I am only half joking.

-Pete

Public law trumps private contracts.

[Erris]

The scare here is that M$ or others can violate your rights by contract. This is no more the case than you can sell yourself into slavery. Anyone dumb enough to offer you that kind of a deal deserves to be burnt, and will be. You might have your property abused by agreement, but there are limits to that.

Some of the dumber EULA are sure to be thrown out. Is anyone really going to enforce the "you can't say bad things about M$ with front page" term? Good freaking luck. They might be able to take away that horrible program from you but they can't keep you from telling the world how much they suck.

Privacy is a real concern. The XP EULA grant's M$ the ability to search your computer. You had better believe they already do and will continue to do it. They even changed up their hotmail junk so they could spam you all the way to China. Kazza's gonna sell your cycles to Iraq for wepons development, well I don't think so.

These are all violations of your property and patience, but God help them if they actually break things in a way that lawers can understand. The waste M$ inflicts is huge, some starving lawyer is just waiting to pounce on it. Then poof, the proven illegal monopoly is going to actually pay.

My contracts with M$hit expired a long time ago and I'm much happier for it. You see freedom from all these abuses is closer than you think. Do something good for yourself and dump that privacy invading, insecure,unstable, advert laden junk. The power ends when you don't need it.

Re:Read the EULA...

[John Hasler]

"Most users in this world are tied to a certain operating system (due to the simple lack of equally user-friendly alternatives), and software that comes bundled with it."

They may prefer it, but they aren't "tied" to it. They are free to learn to use one of the alternatives (and this is the first I've seen someone label the Mac "less user friendly").

"Many users are also tied to specific software that they use at work."

Then it is the employer that is bound by the EULA, not the individual.

"If I like Quake, but not the EULA that id software dishes out, I'd probably sign up and play, for the simple reason..."

...that you don't dislike the EULA enough to give up Quake to avoid it. Thus, you _chose_ to accept the EULA.

"Just what purpose does reading the EULA serve,..."

It tells you what you are getting into, should you choose to accept it.

"...when pressing the "I Decline" button is simply not an alternative?"

There is always an alternative. You aren't going to starve to death or die of exposure just because you choose not to use some particular piece of software.

"The root of the problem here is that every single piece of software is a little monopoly..."

None of the software on my computer is a monopoly of any kind.

"You'll usually be able to find two boxes of cereal with similar taste, manufactured by two different corporations."

Many people say otherwise. They insist that there is absolutely no acceptable substitute for the Exploding CatHead(TM) cereal they saw on the morning cartoons. Most of these people are under 10 years old. Sometimes I suspect that most computer users are of a similar mental age.

Please post EULAs

[1010011010]

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.

Re:Please post EULAs

[Anonymous Brave Guy]

We'd love to, but unfortunately, they're copyrighted, so you have to buy the software in order to read them...

Simple solution!

[1010011010]

Simple solution: get a 14-year-old to click all the "accept" buttons. Minors cannot be bound by contracts!

Re:Simple solution!

[1010011010]

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.

This is a Service EULA, not a Software EULA.

[Blackwulf]

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...

Re:EULAs are important

[RelliK]

But this EULA business is pretty important - after all, isn't the GPL just a EULA, in a certain sense?

No it's not. The so-called EULAs require you to accept their terms as a condition of using the software. They start off with the presumption that you have no rights whatsoever and they "grant" you the right to use the software on very restrictive conditions. That of course is nonsense -- you have the right to use the software by the virtue of having bought a copy of it, so in reality, these EULAs take away the rights you normally have.

GPL does no such thing. You are not required to agree to anything if you want to use the software. GPL starts off with the (correct) presumption that you already have this right. However, you do not normally have the right to distribute the software if you do not hold the copyright on it. GPL grants you this right, provided that you agree to its conditions.

This decision will have no effect on the enforcibility of the GPL. The so-called EULAs, however, have always been on a shaky legal ground. It remains to be seen what effect this decision will have.

Re:Software companies should be careful...

[Arandir]

Okay, if "EULAs are contracts at the moment they are accepted", then where is the consideration? A contract is not valid without consideration.

I've already paid for the software (if it needs to be paid for), and I already have the right to use the software (according to copyright law). Just what is it that the company is giving me and what am I agreeing to give to them?

Of course, in Mythic's case, there is consideration. You don't have the right to use their server, so that is something you gain. But in the case of regular everyday EULAs, they're bogus.

Some points

[Rogerborg]

From the court, we find that the owners of Blacksnow did their trading in game. Now, argue all you like about most people not reading the EULA, but professional traders have no excuse for not reading it.

As regarding whether they did or not, and whether they clicked through and agreed to it, remember that this is civil litigation. The burden of proof is not beyond all reasonable doubt, but rather balance of probabilities. In deciding what is fact, the court only has to consider the most likely scenario. And the most likely scenario is that Blacksnow (if not the players) did read (or should have read) and did agree to the EULA. If they didn't, then the burden is on them to show that.

Also note that the issue is about the actions that they chose to perform on the service, not what use they made of the software.

Given all this, it looks pretty clear cut that Mythic are right, and Blacksnow are wrong. My only problem with this is that it feels wrong. Effectively, Mythic are saying that they have complete control over everything that happens on their servers, and that they will be the final arbitrator on who did what - and more importantly, why they did it.

The reason that this last point is important is that from the point of view of Mythic, what's the difference between these actions?

• I drop a Sword of Boinking because I agreed in an email conversation with Blacksnow that I would do so in return for money.
• I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for money.
• I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for them dropping an in game item.
• I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for beer.
• I drop a Sword of Boinking because I agreed in a verbal conversation with my son that I would do so in return for him taking out the trash.
• I drop a Sword of Boinking because I hit the wrong key.
• I drop a Sword of Boinking because I'm drunk.

The answer is that from Mythic's point of view, there is no difference. The action that Mythic sees is: Player X wants to drop a Sword of Boinking.

Now, Mythic get to decide what the motivation was behind this action, and to punish me or terminate my account without possibility of appeal. In the case of Blacksnow, it looks clear cut, but that's because Blacksnow have been decent enough to be above board about what they have been doing. But now the precedent is set that Mythic and other online services can charge money to access content that they control and can deny access to at any time for any reason that they like, and your option is to suck it up or... actually, there is no "or".

Is that just? Well, actually yes, because it's Mythic's service, they can set the rules, and nobody is forced to play it. Is it enforcable? Demonstrably, yes. Does this kind of control freakery damage online games? Not really, it's rampant on EQ (down to them enforcing their own particular view on what's an appropriate "fantasy genre but non trademarked" name), but that's still going strong.

But does it feel right? Hell, no. Is there anything that we can do about it? Probably not. I wouldn't play such a horribly restrictive game in the first place, and so I don't even have the meagre threat of withholding my money, but the plain old fact is that most players simply don't know and don't care (enough) about it to leave. So, by the Great and Powerful Laws of Capitalism, Mythic is in the right here, and will continue to remain so until the money stops flowing in.

Fighting "no refunds" with chargebacks

[Frank T. Lofaro Jr.]

Buy by credit card.

If they won't give you a refund, do a chargeback.