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

Re:1st rule

[Anonymous Coward]

Such a comment kind of reminds me of this quote:

http://www.bash.org/?6107

Good for blizzard for enforcing it...

[chris09876]

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...

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.

Re:How many of us could actually mount a defense?

[Maestro4k]

• 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.

Depends on the state, but in some of them they can get hit with fines in addition to having to pay the defendants full legal costs for filing a SLAPP lawsuit. (Strategic Lawsuit Against Public Participation) Mattel found this out the hard way when they sued that artist using Barbie dolls in his art. Mattel didn't like the way he used them and sued. A judge threw it out, fined Mattel a large amount and made them pay the guy's full legal fees.

Sadly not all states have anti-SLAPP laws on the books, they all should.

Re:How many of us could actually mount a defense?

[D-Cypell]

A judge threw it out, fined Mattel a large amount and made them pay the guy's full legal fees.

Which is all fine and dandy if you can get your lawyers to work for free until the judgement. Otherwise Mattel didnt pay the legal fees they just gave him back what he had already paid. This, of course, relies on you having the money to mount a defence and take the risk of waving goodbye to it if you lose.

Re:How many of us could actually mount a defense?

[Shadow99_1]

I got news for ya, most of the 'people' doing this are not individuals but companies... Often companies in foreign countries, with US 'contact points'...

I played Lineage 2 for quite awhile and you really couldn't help encountering these grous of (mostly) chinese people with US contact points (web and a few personel for delivery purposes).

Now I bring this up for two reasons:
A) They make quite enough money that the could defend themselves in court just fine.
B) They will never go to court because they don't live in the US, nor are the contact points actually bussiness style branches.

So this will do nothing except put the person trying sell their character off when they leave the game (Which I did for Lin2) in the potential line of fire...

Re:How many of us could actually mount a defense?

[ahmusch]

When a lawyer's compensation is deferred until after judgment and is predicated on winning the case (and the phat lewt which accompanies it), that's called taking the case on contingency. Pro bono is when a lawyer works for free -- as in beer -- as it's generally working "for the public good", hence the latin abbreviation of "pro bono publico".

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*

[91degrees]

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.

Re:Why fight about *this*

[Kaboom13]

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.

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...

Re:Why fight about *this*

[arkanes]

Because Blizzard views it's job not only as selling a product but as providing a game. Blizzard doesn't think that a secondary (real-money) market in game characters and items is a good thing for the gameplay of WoW. Think about your basic tabletop RPG and wonder if it would really be better if you could by stuff by slipping the GM a fiver.

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.

Re:Why fight about *this*

[Pofy]

>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 doesn't have to accept or not. If two people make some deal, what would Blizzard have to do with it? Just because you value something doesn't mean Blizzard have to compensate it for you!

Re:Why fight about *this*

[dR.fuZZo]

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.

Re:1st rule

[ginbot462]

I thought the first rule of the EULA was not to talk about the EULA (so there IS a rule /. obeys).

Re:The bottom line

[Famanoran]

RTFA.

EULA's have been enforced.

Already Slashdotted ?

[Kartoch]

The standard disclaimer applies that this is not legal advice and is only offered for your viewing pleasure.

The law of contracts is the law of promises. Long before computers were invented, people were making promises. At some point, the law had to designate which promises it would enforce and which promises it would let slide. The former are called "contracts." That is, a contract is simply a legally enforceable promise.

To have a contract, you have to meet certain elements. I refer to the terminology of my professor and renown expert, John E. Murray, Jr., author of Murray on Contracts, a first year law student's bible on the matter. To have a contract, you must have 1) an offer, 2) an acceptance and 3) a validation device, most often, consideration.

The offer and acceptance parts are quite simple the vast majority of the time. Usually one party says "I will provide you with X if you provide me with Y," which qualifies as an offer. The other party says "I agree" and the deal is done. Consideration is sometimes a little bit tricky, but in order for a contract to be valid, there must be a bargained for exchange. Lack of consideration is why gift promises, even in writing, are not enforced. I say "I agree to give you $100 because I love you." We put it in writing signed by 10 nuns, each of which testify that I fully intended to give you $100. That is not a contract because there was no bargained for exchange of value. Promises to make gifts are simply not a type of promise that the law chooses to enforce.

Ok, so lets look at the typical EULA to see if it's a contract. The gaming company makes you and offer to play the game. In exchange for playing the game, you must agree to pay a fee each month and follow the EULA. That is the offer. You accept the offer by clicking "I Agree" when you log in. You technically do not need to do it each time that you log in, but most companies do this simply to remind the consumer that it is bound by the agreement (and to provide notice of any modifications). The promise is supported by consideration, namely the company permits you access to the service, and you pay the fees.

Tada, contract! So, what is all the fuss about? Well, you see there is good reason for confusion.

When software companies first started, it was easy. They had a product that they made. They wanted to license it to someone else to use, so they drew up an agreement, and said "sign on the dotted line." Those were the early EULAs and they were no doubt enforceable. But then software companies wanted to make its product easy to buy, so they threw it in a shiny box and popped it on a shelf. They certainly couldn't ask the clerk behind the counter to execute contracts for them, so they simply tucked it inside the shrink wrap and included "acceptance language" stating "by opening this box, you agree to these terms."

Wow, now wait a minute here?!? There is something messed up with the timing of the whole thing. It doesn't jive with standard contract formation process. So, I pay the fee, get the thing that I paid for home, open the box, and accept the offer before I see it? Hmm. Well that didn't make much sense, and judges weren't really familiar with how this whole thing worked, so cases came down that said these types of agreements, shrink-wrap "EULAs," are not enforceable. They aren't enforceable because they do not meet the elements of a contract.

But wait again! Some smart guy decides "this is great" and he goes and buys a piece of software that contains something like a telephone directory of the entire United States. He rips the contents off the CD and makes his own CD that does the same thing, and competes with the original company. The original company says "we will see about that" and the ProCD case is born. In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions. Later cases came out, however that said EULAs are a special kind of c

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

[slavemowgli]

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).

Re:EULA Disclosure

[PornMaster]

I think that the attorney in the article skipped around EULAs and this very valid point, to get to the terms of service part of the online service.

With the boxed game, you pay before you get to see the license.

If we ignore the fact that before you get to log on to the service, you've already paid for the game - at least with the online service, you get to see the agreement before you pay.

I think the article was quite lacking in dealing with the differences in those two cases.

Re:EULA Disclosure

[ssand]

Some companies actually place their EULAs on the web, allowing you to read prior to purchasing. As stated, Blizzard offers a full refund if you do not accept the EULA. Finally, I'm not sure if it happens with WOW, but some online games I've seen state something similar to "By logging onto our server, you agree to the EULA." While you have paid for the game, you are using their servers, so you have to abide by those terms.

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.

But minor's can't contract

[Anonymous Coward]

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.

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.

Reasonable?

[It doesn't come easy]

Companies that use EULAs must make sure they are "reasonable."

Examples of typical EULA language (paraphrased):
"We can install anything we like on your computer"
"We don't guarantee the program will even run, much less do what we said it will do."
"We are not liable for anything, even if our software makes your company's profits implode"
"We can collect any data we want and sell it for a profit"
"We will charge you to fix any problem found in our software, assuming we choose to fix the problem."

Sound's reasonable to me...

Re:Reasonable?

[jandrese]

Don't forget:

"You are not allowed to publish anything negative about the software on any medium" (Especially on reviewer copies)
"We don't care if the software causes damage to your computer hardware"
"We can revoke your right to run this software at any time for any reason without refund"
"You may not give this software to anybody else, even if you uninstall it from your machine and everything"
"Don't even think about installing it on two machines in your house. You need to buy a second copy buddy--it doesn't matter that you only run it on one machine at a time!"

and so on.

Re:Reasonable?

[rgoldste]

Some time ago, courts had doubts about standard contracts, that is, contracts that a company imposed on all customers that the customer had no chance of changing. Some of these contracts were held unenforcable, because the customer's bargaining power was so inferior to the company's. (cf. Henningsen v. Bloomfield Motors; Williams v. Walker-Thomas Furniture Co., )

The courts found there was no way these contracts were made by two equal, free parties, which is a cornerstone of a valid contract. Also, many contracts written in legalese, unintelligible to the customer, were thrown out, because the customer's inability to comprehend the contract was seen as evidence that he couldn't fully and freely accept the contract

In many ways, I see shrinkwrap EULAs as having similar problems: there's a gross inequality in bargaining power between the sides, there's no real way the customer can negotiate the contract (especially since the company has no agent authorized to change the contract available to the customer), and you can't realistically read and understand the contract before agreeing to it.

IANAL, but I am a philosopher of law.

An EULA is no real contract in Germany

[Kosi]

Many people don't believe these clickthrough EULAs to be enforceable contracts.

And in Germany they are 100 percent correct. After all, a contract requires a clear volition from all parties. And a click on a virtual button or opening the shrinkwrap is not sufficient for that, as you can't even tell who made the click (maybe my cat stepped over the keyboard while I was out of the room).

Re:An EULA is no real contract in Germany

[Flyboy Connor]

maybe my cat stepped over the keyboard while I was out of the room

I usually do that. I drop the cat next to the keyboard and walk out, then come in again after a few minutes. About half the time, the cat has hit enough keys so that the game is started past the EULA. The other times, I usually have to restart the computer. Though there was this one time when the cat had closed the game, open up my word-processor, and had typed in the first scene of Hamlet.

Re:As much as we hate them

[RonnyJ]

The main EULA that I have a problem with at the moment is on Steam. If you buy HL2, the EULA forbids you from selling your Steam account, and thus this prevents you from selling HL2. You can see this for yourself here. (I'm using a Google cache link here because the Steam forums are down - coincidentally they went down at a time when some people are having problems updating HL2).

Incidentally, if you look at point 2, you will see that Valve claim that all Steam accounts sold on eBay are "either Stolen accounts or opened with stolen credit cards". So, bear that in mind if you decide to sell your legally purchased HL2 on eBay.

Re:The bottom line

[Xpilot]

If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal?

GPL'ed software has no EULA, and the GPL does not rely on contract law, rather it uses copyright law as it only covers distribution of the program, not how it is used.

Standard disclaimer : IANAL

EULA gets the award of..

[British]

....the most impersonal form of communication ever to have been devised by mankind. It doesn't talk to you, it barks at you.

It's not the EULA...

[NaugaHunter]

It's the Terms of Service you agree to online when you give them a credit card number and say 'Yes, I Agree' in order to play. Whatever questionable status EULA's may have, if this isn't enforceable then no online contract is.

Read it yourself.

If you don't agree to that, then you don't click through, don't create an account, and do something else. This is a valid, 2-party contract. Deal with it.

Re:The bottom line

[The Snowman]

GPL'ed software has no EULA, and the GPL does not rely on contract law, rather it uses copyright law as it only covers distribution of the program, not how it is used.

The GPL is still a type of contract. Copyright itself is a type of contract -- the owner grants me permission to use the product if I agree to abide by the terms of the license. This license may be "pay me $20 for a CD and promise not to copy it" or it might be "take it for free, change it, and give it away."

Thinking about ethics

[tdhillman]

We can kvetch all we want about EULAs, but the big question here revolves around ethics.

On the most basic level, I think we all perceive that just compensation for work is wholly reasonable.

Yes, I've used software that I didn't have legal right to, but I understood that it isn't really kosher.

The only person capable of stopping anyone from doing anything is the individual- to my mind, EULAs are general reminders that make you consider the nature of what you are doing in the first place.

Re:The bottom line

[Maestro4k]

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

While I realize it's a Slashdot tradition to not RTFA before posting about it, you really need to go RTFA. EULA have been enforced by court decisions, and apparently they go back a fair ways, there's plenty of legal precedent to enforce them now, under the right conditions.

In this case, talking about MMORPG EULAs, it's even more clear cut. You're shown the EULA every time you log in (even just the first time is enough) and have to agree to it before playing. That constitutes a legal contract even without the legal precedents already set. That's the gist of this guy's discussion.

So time to start believing they're enforceable, since they are.

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."

GPL != EULA

[Pan T. Hose]

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?

The GNU General Public License is not an EULA. Please read it:

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. [...]"

Now, back yo your question: "If I can view the EULA online [...] then why shouldn't it be legal?" You should have asked: "If I can view the EULA online [...] then why shouldn't it be legally binding?" And the answer would be: do you consider everything that you read a legally binding contract? When you see a sign in the store saying that when you touch anything then you have to buy it, do you think it is true?

Re:GPL != EULA

[swv3752]

To use GPL software you are not required to accept the GPL, hence it is not an End User License Agreement. The GPL is a distribution License. If you want to distribute GPL software, whether you give a copy to a friend or you repackage like Red Hat, then you must accept the GPL, because otherwise copyright Law prohibits you from doing so.

See the GPl is pretty clever, there is actual consideration as you get something (distribution License) for publishing your source code.

On retail software, there is no consideration with the EULA. You have already paid money and the EULA is not giving you anything further than what you already have.

Re:Too bad for Blizzard

[Ayaress]

Wow, so that's why EQ2 is losing players already and WoW is growing faster than a - oh, whoops, misread your post.

Consumers Rights laws

[Tx]

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.

Re:The bottom line

[Kjella]

A license is revocable at the will of the licensor and therefore is not a contract.

Where did you ever get that idea? Yes, there are time-limited licenses, licenses that can be terminated for various reasons, but that is the exception not the rule. If you want that, you have to put it in the license terms.

A license as commonly used is simply a special form of contract, where rights are traded for money. Assuming it holds up to the legal standards, it is as good a contract as any other.

Kjella

Not the case with Blizzard

[Vermifax]

you should carefully read the following end user license agreement before installing this software program. by installing, copying, or otherwise using the software program, you agree to be bound by the terms of this agreement. if you do not agree to the terms of this agreement, promptly return the unused software program to the place of purchase, or contact blizzard customer service at (800) 592-5499 for a full refund of the purchase price within 30 days of the original purchase.

World of Warcraft EULA http://www.worldofwarcraft.com/legal/eula.htm

standard disclaimer

[Doc Ruby]

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.

Dodges the hard questions

[nasor]

There was almost no real useful information in this article. It basically amounted to "EULAs are enforceable, usually, so long as the conditions aren't outrageous." It doesn't answer any of the really hard questions about EULAs. What happens when someone who isn't old enough to enter into a legal contract (which is to say, probably half of everyone who plays these games) clicks through an EULA? What if I don't like the EULA, but the store/company doesn't want to give me my money back? What if I find a way to install and run the game without ever reading the EULA - am I still in violation of it, even though I never saw it or agreed to it? If I don't agree to the EULA, can their copyrights restrict my use of their software for private, non-commercial purposes?

Re:The bottom line

[KiltedKnight]

You cannot enforce something on someone who hasn't had a chance to read it before opening it, so the shrinkwrap EULAs are unenforcable. If, however, the CDs containing the software are in a sealed envelope which says, "By breaking this seal, you agree to the terms of the EULA on the outside of this envelope," and the EULA actually is outside of that sealed envelope, it's enforcable. You had a chance to read it before you broke the seal.

Placing the EULA inside that sealed envelope or some other sealed package that requires you to force agreement with it in order to get to it in the first place is best described as "entrapment."

Re:Educational Use Only?

[Walrus99]

I work at an office that is attached to a major university and we regularly get educational discounts on software we buy. They sell education priced software at the university book store and you are supposed to have a student or facultly ID to buy it, but I'm not sure if they check. I'm sure the sticker is for sales purpose more than use. I don't see how they would control use once the software is bought and installed. If you live near a major university it may be worth checking their bookstore if you are buying high-priced software. It is usually about 1/4 to 1/2 of regular price. Just use your old Jedi mind trick on the sales clerk so they don't check for student ID.

Re:The bottom line

[lobsterGun]

As the article pointed out, the courts have already decided this. The decision was that EULAs (shrink wrap or otherwise) are enforceable contracts.

For more information look into the bnetd court case. Last year the court found in favor of Vivendi on all counts. The basis of the entire decision was that since the EULA was a valid contract.

Players aren't the problem, IGE & Playerauctio

[Luthair]

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.

Analysis of the Situation

[vashathastampedo]

On one side of the picture, Blizzard is trying to protect the quality of it's product. While they cannot prevent informal agreements between people, they do want to stop the Walmart style superstores (Yantis, etc.).

See here is the problem with a secondary market that involves real cash: it simply reduces the illusion of the game. If you have ever played a P&P rpg this is akin to Metagaming. "My ring is worth $150". The game ceases to become a game for certain players and becomes a new marketplace - bringing with it all forms of behavior that simply does not promote the original vision of the game.

What you end up with are players that essentially become "farmers". The unfortunate side effect of this is that they are impeding upon the casual player's experience of (Blizzard's original vision) the game.

You really almost have to consider WoW as a form of artwork that Blizzard feels is devalued by outside monetary influence.

As far as the idea that Blizzard should welcome and embrace online trading of items: Show me an online game that does this now (seriously - I would like to know). Every server crash would be followed by inevitable lawsuits.

The right to refuse + doctrine of first sale

[NigelJohnstone]

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.

Changing terms of EULA?

[Midnight Thunder]

The article makes a fair enough point, but now I have another one: how legal is a EULA that changes the terms of the EULA that you agreed to when you bought the product? For example how do you know that when you 'agree' each time you log into you MMORPG that the terms have not changed?

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.

It is all about the insurance!

[nlinecomputers]

If two people make some deal, what would Blizzard have to do with it?

Nothing except that they are the ones holding the item for you. Think of it like a valet parking garage. You give your car over to the valet dude to park your car and he crashes it. He doesn't care that you just sold the car but he is now responsible for the loss of the car. So he has insurance to protect himself should he damage a car that he is parking.

Blizzard is afraid that they may be blamed for any faults that happen while they are "valeting"/housing your things.

It means that they are going to have to be insured for losses(if the server crashes) as selling the "items" on ebay is proof of value. If they can stop that from occurring or make it illegal they avoid the legal necessity of liability insurance.

Irrelevant

[Drachemorder]

As far as I'm concerned, the legality of EULAs is mostly irrelevant to Blizzard's decision to crack down on people selling in-game items. The fact remains that whether or not the EULA is enforceable, whether or not the concept of intellectual property is valid, one must still connect to Blizzard's servers to play the game. Those servers are Blizzard's property by any measure. As such they are well within their rights to ban people from them for whatever reason they choose. It doesn't matter whether or not the EULA has anything to say about it. Even if the EULA were to be completely voided by a court ruling and the sale of the game defaulted to standard copyright law, Blizzard would still have the right to control access to a server which is their private property.

There may be (and I daresay there are) good grounds for challenging the validity of EULAs, but this case really isn't one of them.

Good point

[llevity]

This is a very interesting point. When I sign a contract, the terms that both parties agreed to are pretty much set in stone. They can't update the contract, and then force me to sign it. If there's not something in the new contract that piques my interest, I can say "Nope, I like the original contract better." And under the terms of the contract, they have to continue giving me what the original contract specified for as long as I continue my end. Why, after a change in a MMORPG EULA, isn't there a button that says "No thanks, I'll stick to the original terms."? I guess a lot of depends on the EULA. If it's made to come up everytime you play the game, the length of the contract could be worded to be for "one play session". In which case you have to sign a new contract each time you play the game again. WoW isn't like this, it only comes up when it changes. But I guess somewhere buried in there is something that says this contract is binding until we change it, at which point you must agree all over again.

As long as it's still ok to outsource

[elhondo]

I've saved tons of money and time by having my online gaming done via a third party in a foreign country.

I think more people should read the ProCD case...

[Kjella]

...it did a pretty good job of showing examples of other cases where you order something, but you do not get the full terms until later. A typical example was ordering travel tickets by phone. There's a huge list of travel conditions, but you don't get all of them quoted to you over the phone. You're expected to know "standard" terms for travel.

Another example quoted was purchasing concert tickets. The terms of the concert may be no cameras, and it is enforcable. You agree to behave after the rules of the concert by being there, even though you didn't agree to those terms before purchasing the ticket.

The court made a pretty good case that this would also be true of EULAs. When you purchase the box, you are aware that terms and confitions apply. You may not know them in detail, but you know you'll probably be presented with an EULA. That is the sticky part about "reasonable" terms.

It is also greatly influenced by what materials you do have to do by. If you purchase "FooBar personal edition", there's a different understanding of reasonable than if you purchased "FooBar enterprise edition". Acting deceptively is a good way to get your EULA thrown out.

What I did like was that it was quite clear that if you have the means to easily present the contract up front, there's little excuse. So if you're e.g. offering commercial software for download, you'd better present those terms before completing the purchase.

One thing it didn't cover (as it was obvious from the case that he was aware he was buying a personal edition), was whether the terms should be available up front, e.g. on a website. I believe there's a case about this going on now, and I hope the answer will be yes. In my non-lawyer opinion it is certainly "reasonable" to expect the terms to be available on demand.

Oh, and for the love of god.. can we please stop the "minor/drunk/cat/installed it some other way" solutions? If you reasonably knew the software is covered by an EULA, the court will take your use of the software (when sober, or whatever) as behavior indicating acceptance. Think of it as raising your hand at an auction, while it is not a signature the court will see it in the same way.

Kjella

To What End?

[Percius]

Regardless of your opinions of what you or blizzard thinks is right concerning in game items being traded for 'real cash', where does the reign of the EULA end?

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.

Re:The bottom line

[DeathToBill]

This is a basic misunderstanding. The GPL gives you rights in exchange for your agreement to follow certain conditions. Otherwise the GPL would be pointless; why not just put it in the public domain? That would grant the same rights without any conditions. If the GPL is a grant of rights without imposing any conditions, then why would anyone try to "enforce" the GPL?

To show that this is the case, consider what happens if you do not follow those conditions: You lose the rights granted to you. Failure to comply with the conditions imposed by the license can result in you losing the rights granted by the license. This shows that the GPL is a grant of rights in exchange for agreement to conditions, not a free grant of rights.