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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."
We all remember what happened with Diablo 1 and the many godly plate of whales ;-)
It will be interesting to see where this goes in the future. They say it's enforcable, but I am curious to see how enforceable it really is. It could have consequences for the entire MMORPG industry...
I store my recipes online (the way nature intended)
Does Right of First Sale have anything to do with this?
I just have my kid brother click "ok" or tear open the envelope. Since he's not 18, the contract isn't enforceable in most states. Of course, game makers could get around this by making us go through the EULA every time we play ("playing this game constitutes your agreement to the following"). Also, while IANAL, I understand that many states consider a contract signed while you are intoxicated to be unenforcable. So, have some beer with your EULA. Since there is a lack of legal precedents regarding whether EULAs are enforcable or not, I suspect that the software maker would look for a better target than risk loosing the first case on a technicality.
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.
Because you open up a whole nest of troubles as soon as real money is involved. People will complain and try to hold the company responsible if they are cheated by another player, and they have no control over this.
You RTFA. Those were not EULAs in the strict sence that have been enforced, not alone. It give such an impression, just like SCO's lawsuits gave the impression that they were about patents and copyrights while they were in fact about contracts. Those are side issues.
Blizzard is fighting this because A. It causes massive in-game inflation. As soon as there is a market, ebayers will begin farming money 24/7, often using bots and exploits. They will then sell this money to new players who suddenly have a massive amount of money out of proportion to their level. These new players are going to want the best equipment, of which there is a limited amount by design, and will be willing to pay for it. The end result is prices rapidly reach a point where your average player can not afford anything without buying money on eBay. This has already occured in many MMORPG's, particulary Star Wars Galaxies. B. If Blizzard accepts that in-game items have real world value, and there is a server crash causing you to lose items, you can now sue them over it. Blizzard does not want items to have value beyond their usefulness in game because no judge is gonna award damaged because it will take you an extra hour to get to level 60 cause Blizzard lost your fancy item. If you can sue Blizzard because you could have sold that item for $50 on eBay, thats a different matter.
True, but there's another issue that the article fails to address. IANAL, just someone who believes he's got a reasonable amount of common sense, but why do I have to enter a contract with the software company who made a product (whether it's a game or something else) to use that product after I purchased it in a store, anyway? Didn't I already acquire the right to use that software when I payed for it in store? If you take Photoshop, for example, which actually costs a couple of hundreds of dollars, I really would argue that by paying those, you bought more than a cardboard box, some CDs and a printed manual - you bought the right to use Photoshop. Adobe granted the store to sell that right to one person along with the box, and now the store is selling that right to me. Again, IANAL, but that's really what I think it's like. If I buy a book, for example, I don't have to enter a contract with the publisher to be allowed to read it, either, do I? I already got that right when I purchased the book, because what I paid for is more than just a stack of paper bound together. It's the right to actually utilize the contents (reading it in case of a book, and use it in case of software).
quidquid latine dictum sit altum videtur.
There's all sorts of "let me do what I want" people who say they SHOULD be able to do this. That doesn't really matter - Blizzard doesn't think a secondary market is good for WoW gameplay. Simple as that. And since MMORPG EULAs are about as legally viable as they get (straightforward terms of use for a service, tons of legal precedent), I don't think they'll have much of a problem pushing it.
In the UK, the consumers statutory rights under the "Sale of Goods Act" and other laws are paramount, and can't be overridden by an EULA. If your country doesn't have such laws, it really should.
These laws state (approximately) that:
* Goods must have no defects, unless these defects are clearly described prior to sale
* Goods must be fit for the purpose for which they are sold
* Goods must be accurately described - i.e. no incorrect labelling on the packaging etc.
Oh no... it's the future.
World of Warcraft is a game. It's supposed to be a fair game. Without the EULA and Blizz enforcing it Hackers and Gold sellers will run the game, vastly inflating prices and ensuring that only the richest of the rich gets the best items. You wanna see a Micro-Economy that is run by hackers and money sellers, play Star Wars Galaxies. They recently had to GIVE players money in order to for the majority of players to be able to afford a StarFighter. The reason this happened is because the Crafters prices were waaay too high as alot of them were selling stuff on EBAY and so real $$ is more important to them then In game money and fun. Its a job to them. MMOGs aren't supposed to be like real life, they are supposed to be FUN and FAIR.
Why would someone who buys something on ebay think that Blizzard is involved in anyway with the transaction?
It goes like this:
- Powerful item sells on eBay for $200
- I, knowing this, work my ass off to acquire said powerful item in-game.
- Server goes down.
- Server comes up again; no item.
- I sue Blizzard for loss of approx. $200.
No third party involved. As soon as Blizzard admits that items == money, they become responsible for any losses of said items.Lawyer Shelkey, of the Corporate Finance and Technology department of his law firm, says that, basically, EULAs are legally binding contracts. He ignores the major factor in the controversy: no one reads them before indicating they accept. It's like a contract a deaf person makes in sign language with an unsuspecting person, sealed with a handshake. Of course Shelkey doesn't bring that up. He represents coroprations, and his article is just a friendly warning on behalf of the interests that pay for his supper.
He doesn't mention a single interest of the End User agreeing to these End User License Agreements. The closest he comes is in dealing with the "issue" of (threat posed by) "virtual profiteers" who ignore EULAs to steal the product and compete with the EULA issuer. How about when millions of us clickthru a long, complex EULA to use some simple, cheap SW, but then are confronted with demands from the licensor, based on borderline "reasonable" terms we unknowinly agreed? Since conventional wisdom holds that EULAs are unenforcable (for some good reasons, but defacto practice is strongest), millions of reasonable people ignore them, though they do "read anything they sign", as everyone knows to do. Shelkey's selfserving warning isn't the law. At least he's candid up front, stating that his article " is not legal advice and is only offered for your viewing pleasure". Just like the EULAs he knows and loves.
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make install -not war
I doubt Blizzard is worried about the individual player, their concern is more for companies that do this for profit. As odd as it may seem these companies apparently hire chinese labour specifically to farm and sell for profit.
Individual players would have little to no effect on the economy, bots and characters on every server farming 24/7 do.
Nice summary, but contracts also requires the right to refuse and store sales are covered by doctrine of first sale. IANAL, however I have consulted one on this very issue.
Right to refuse:
If you're put in a position where a contract is offered but no option to refuse is given, or the refusal includes a penalty the contract is not enforceable. THEY MUST BE FREELY ENTERED INTO.
So for example you buy a product, you get it home and it has some nasty POS EULA associates with it.
You can: accept the nasty POS EULA.
Or: Return at your own expense and time, and maybe even have to pay a restocking fee. I.e. you pay a penalty.
The other point is the doctrine of first sale. When you sign up to an online gamer, you have not at that point bought the product, so are not protected by dofs.
When you walk into a shop and buy it you are, the extract terms are foisted on you after.
My problem with EULAs is not so much their presence, but the complexity of the language in there is usually enough to scare most people off. I really feel that they need to be accompanied by a FAQ or short absrtract explaining the 'spirit' of the EULA.
Jumpstart the tartan drive.
What I can't understand from this is WHY Blizzard would be opposed to this?
The reason they'd be opposed to it is that when you play a MMORPG for fun, you talk to other players, you go fight monsters, you go do quests, and, sometimes, you might grind on a certain population of monsters in a certain area so you can get a certain item (or gold) that they drop.
When you're only playing the game to make in-game money that you can sell on eBay, you don't talk to other players and you don't do fun quests. You find what seems like the best way to earn gold and then you do it over and over again and try to chase away other players who might get in your way and threaten your (in-game and out-of-game) profits.
That's what there have been reports of in WoW. Players that continually hunt in certain areas and cause grief for other players that infringe on the territory they're working. These types of players are annoying and if they become too widespread, they may chase Blizzard's well-behaved customers away from the game.
-- dR.fuZZo
A pretty strong argument can be made that the contract is formed prior to you opening the box. Lets say I advertise that I am selling a football. You come to my store, you bring the football to the counter, and I sell it to you for $20 bucks.
You go home, unwrap the football and find a mechanism that was hidden from view when you purchased the football that contains a laundry list of provisions. This mechanism essentially renders the football unusable for its primarily intended purpose until its removal - you must take an affirmative action to remove the mechanism - you have to push a little button that says "I agree." The mechanism states that by pushing that button you agree to all those terms.
The lawyer that wrote that article would say, you don't own that football yet, that no contract has been formed until you push that button on that mechanism and only then is a contract formed.
I would argue the contract was formed when you purchased the football at the store.... And that the existance of the mechanism has breached the contract. Therefore I could at that point in time sue for not just the return of my purchase price, but also other consequential damages - the cost of my time to buy and return the item; the actual travel costs (i.e., gas and milage); etc.
Of course, if I hit agree I may be deemed to have waived the breach and accepted a new contract. So that is another issue. But there is some inherent level of unconscionability/duress in that type of arrangment. It also reeks of fraud - it is essentially a bait and switch situation. Buy the product first, then only after you have paid we are going to throw in all these terms that you have to agree to in order to use the product you already purchased...
Also, do you really think you can decline to accept the terms?
To use his MMOG example, try opening the box, opening the CD and putting it in your computer. When the EULA finally does pop up (which is not always before installation...) click decline. Take that opened box back to the retailer and try to get a refund.... Good luck....
1) Blizzard reserves the right to change the EULA at any time. If you do not agree with the new EULA you are out your character, current subscription, and the cost of the original game. Does Blizzard have the legal precedence to do this?
2) Blizzard claims that all in game content belongs to them and cannot be sold for monitory value, yet they gave away a free in game minion with collectors editions. Doesn't this sound a little 2 faced?
3) How is WOW different from Microsoft Word? Currently Microsoft doesn't claim the right to all documents produced and if they did it most certainly would not be supported by the courts. Word Documents and WOW characters both took time to produce, the product was paid for, and I accept was clicked on the EULA. For those of you who are going to argue that the character data is on a WOW server I remind you that in most cases your web page which you legally own the content of (assuming you didn't steal your site content) is also hosted on another server which you have an agreement with to provide rent for the storage, CPU usage, and bandwidth.
(All arguments assume software piracy is not an issue)
I am by no means a legal expert nor am I attempting to say that blizzards policy is right wrong or indifferent, but I would like to know what slash dotters think about these questions.