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

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?

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.

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:Huh?

[Anonymous Coward]

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

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.

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).

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.

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...

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.

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: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.

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.