The Basics of EULAs

Garthilk writes "Blizzard recently made a bit of press when they announced that they would be actively enforcing their End User License agreement and prohibit the third party sale of game items and characters. Many people don't believe these clickthrough EULAs to be enforceable contracts. Thankfully Don Shelkey from the Corporate Finance and Technology section of the law firm Buchanan Ingersoll stops by to give us the low down. Mind you he is speaking on his own behalf and not on behalf any of his clients."

Comments

How many of us could actually mount a defense?

[DarthBart]

It really doesn't matter if click-through is binding or not. Most companies just play the "Right or wrong, we'll sue your ass into the ground and bankrupt you on court costs."

Who does an 800 pound gorilla sue? Anyone he wants.

Why fight about *this*

[fishdan]

From the article:

Companies that use EULAs must make sure they are "reasonable." ....if you call a lawyer right now and say, are EULAs enforceable, he will likely get into the above and his final answer would be "it depends, but in some cases the only way to tell is to go to court."

And the fact is, most players will not want to go to court, and so once again fair use is in a precarious position.

What I can't understand from this is WHY Blizzard would be opposed to this? If a mini-economy were to open up around your game, isn't that a good thing? They could get into the act themselves -- selling magic items and high level characters to the highest bidder? Hasn't anyone learned ANYTHING from the file swapping issues, Hacked satellite boxes or even drug interdiction? You can't stop people from doing what they want, and by picking battles of silly stuff like this weakens the arguments in legitimate cases where people actually are injured.

If there is a market for WoW stuff, then people will buy and sell it. p>Alot of times you'll here the legal phrase "Qui Bono" which literally means "Who benefits." It's used in the context of trying to establish who really ganis from certain actions. In litigation like this, I think the question that needs to be asked is "Qui Incolmunis" -- or, who is injured. In this case, where (as far as I can tell) no one is injured, there should be no litigation.

I have read the players complaining about the constant "buy now" things they see online. I don't think that legislation is the right way to solve a social problem. Why not make all artifacts have a permanent lifespan with the character who first posesses them, and only 24 hours after that? You could make items/characters untradable, but people don't want that. They just want them to be not tradable for money. Unfortunately, the way the world is, money is a universally accepted currency that can be used to acquire things of value. Driving the market underground is exactly the same as an ostrich sticking it's head undergound -- you can't see the problem anymore, but it will still be there.

Re:Why fight about *this*

[fishdan]

That's an interesting take -- and if that's what blizzard thinks then they should voice those opinions, but I don't think someone who buys a used car feels like they have a recourse with Ford if the car is not under warranty. Why would someone who buys something on ebay think that Blizzard is involved in anyway with the transaction?

Mind you, I'm sure people still complain to Blizzard about that, but that will happen even without this EULA.

Now, if the point of the EULA is that they can say "We don't support stuff that you buy somewhere else" does putting that in the EULA really make it any more so? Or does it weaken the idea of a real end users license agreement because now we are putting frivolous stuff in the EULA.

Re:Why fight about *this*

[freshman_a]

What I can't understand from this is WHY Blizzard would be opposed to this?


Actually, they explain on the WoW website. They think that it will be damaging to the in-game economy and overall experience of players. If someone with a bunch of money to burn goes out and buys a full-pimp level 60 character, then starts stomping on newbies, it takes away some of the fun. People will complain (they already do) and be turned off by the game. There is already an in-game auction house where people can auction goods to the highest bidder. If no one has an incentive to use it, and instead people auction on eBay for real money, only people with a bunch of extra money to spend will benefit. And people who don't have the cash might complain.

Also, if you sell items for real money, you limit your audience somewhat, seeing as how in WoW characters and items can't be transferred across servers. Basically, if you sell an item on Server X, your only potential buyers will be people who already play on that server.

Basically, Blizzard just wants to limit character interaction to in-game only to keep the playing field level. I love WoW, and I don't understand why you would buy the game and pay the monthly fee, just to spend more money to start off with a high level character. IMHO, the fun of the game comes from building your character, finding items, etc. But that's just my 2 cents...

EULA Disclosure

[Verveonica]

The problem with EULAs is once you have purchased the product, say a game and opened the box (unreturnable at this point) you are exposed and forced, lest you forego the purchase price of your game/app/whatever lest you click on the little "I agree" box. It's a sort of blackmail. The vendor does not make the EULA available prior to purchase and "read it on the web" is not practical. Too much effort on behalf of the consumer, and conveniently not enough on behalf of the manufacturer/vendor.

While this is not the case all of the time, it is most often the case.

Re:EULA Disclosure

[guru42101]

Another RTFA. There is basically a common understanding thing among EULA's. We all know that what the EULA is going to say and can assume it is going to be in there. Therefor, we knew for the most part what the terms of the EULA was before we bought the game.

Also, most software companies will take a return and credit at the manufacture level if you do not agree w/ the EULA, this has been done w/ Microsoft on several occasions. So, if you don't agree w/ an MMORPG EULA then contact the manufacture and request to return for a refund. As long as you HAVE NOT CREATED AN ACCOUNT you are in your legal rights to return the product to the manufacturer (so they can disable the CD-KEY) more than likely you'll have to pay shipping.

Now, if you buy the game and create an account you are out of luck unless they make a EULA change over the course of time, if the change is serious enough (IE DAoC's addition to banning character sales well after the game was originally released). However then you're only able to cancel your account immediately and request a pro-rated refund of the time remaining on your account. You've already been playing so you can't get a refund on that money.

For other normal software you're kind of out of luck. The main difficulty is you have to prove you did not keep a copy of the CD-Key or the software and do not have it already installed on any machine. If you can prove you're not trying to screw the manufacture then you just may be able to get your refund.

IANAL but I do know several and have done some research on these things for other software items for my clients, I do networking/software support for companies too small to have a full time IT staff.

Re:The bottom line

[The Snowman]

I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.

I think the real issue is whether shrinkwrapped EULAs are enforceable, not EULAs in general. If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal? But if I have to pay money, remove shrinkwrap, view license keys, insert CDs, then have the option of reading the EULA, but cannot return the opened software if I disagree, should that be legal?

I don't think it should be legal, but then again I am not a lawyer, judge, or Congressman.

Online worlds should implement escrows, not gripe.

[Speare]

If you're an online game implementor, you know that people will want to trade items. You know it, because you're not the first game out there, you're the fifteenth. You're the fiftieth. You can see that people want to trade items.

Sure, the arguments run in two major veins: it's not fair to the game for people to shortcut their character development, and it's not fair to the users, because sales fraud is rampant.

If you gripe about players trading items, you're pissing into the hurricane. Even if it's against all the rules, people will be trading items. And what's worse, people will be offering sales and not following through, so other people will scream about fraud. You're in a no-win situation: people who follow the "rules" are unhappy and people who try to get better game goods are unhappy.

Unhappy customers are not a good thing for any subscriber-oriented product. Unhappy customers who are highly connected, organized, and communicative are a major threat to a subscriber-oriented product.

So why make them unhappy unnecessarily?

Implement an escrow mechanism into the game service.

If a player wants to sell a +20 Sword of Wounding to another player (even on another server/shard/instance/cluster/whatever), let them. Have them put the item into a secure locker-style location in the game world. This takes the item out of the control of the player, to completely remove the ability to defraud. The item is listed up for sale, either to a specific customer, to a guild or alliance, or to anyone. Real cash will buy that item.

Now, where does the cash go? Most of it goes to the selling party. That's why they wanted to sell it in the first place. Whether the cash is presented as future service credits, or a company check, it doesn't matter. Games may differ on the finer points, but one thing is clear.

A cut of the escrow money goes to the game producer.

That's right: if you own the escrow, YOU earn money when YOUR players trade goods. You're the marketplace. It pays for all the effort you made to implement the secure lockers. It pays for the customer service aspect of managing the transactions. More transactions will go through without complaint, and you are in a position to ensure that.

You can't control eBay. You can't control the gentleman's handshake at the pub. You can control the secure locker mechanism that's hosted on your own servers. So earn some money from it.

What about that other line of reasoning, the thing about being fair to the players? What's more fair than instantiating a single set of rules, by which everyone has access? Many people don't trade because of the fraud, but they'll complain about how it's unfair that other people do trade. Others complain that if they don't trade, they can't be the best in the game. Well, it's not about being the best in the game, it's about being the best you can be.

When I was a big game player, the game I played had one simple warning to those who complain about fairness and balance and competition. There will ALWAYS be someone who is stronger, faster, better-equipped, higher-leveled, and prettier than you are. Get over it. It's a game, and the best way to have fun is to skip the notion that you'll be the biggest and baddest in the game. Just be the biggest and baddest you can be. If you don't want to trade, then don't. But if you want to trade, do it securely.

Re:The bottom line

[squiggleslash]

-- the owner grants me permission to use the product if I agree to abide by the terms of the license.

That's not the case. You have the right to use the product anyway.

The GPL gives you additional rights not offered by default in copyright law. It doesn't require you do anything, it merely says "If you do such and such, in this kind of way, you're ok".

All of which is getting off-topic. The GPL is not an EULA, at least not usually (there are a lot of braindead installers out there I've noticed for OS X that force users to "Agree" to the GPL before installation, interestingly I wouldn't be surprised if non-copyright holders distributing such packages are actually violating the GPL by distributing it in such packages...

The GPL only grants rights. EULAs restrict them. The GPL says "You didn't have the right to do this before, you can now do this"; EULAs say "We don't care what copyright law says you can do, we're tearing up those rights and giving you an entirely new set."