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Two New Class-Action Suits Against EA Over DRM

In September, we discussed a class-action suit filed against Electronic Arts over the DRM in Spore. Now, two new class-action suits have been filed that target the SecuROM software included in a free trial of the Spore Creature Creator (PDF) and in The Sims 2: Bon Voyage (PDF). If this sort of legal reprisal continues to catch on, EA could be seeing quite a few class-action suits in the future. One of the suits accuses: "The inclusion of undisclosed, secretly installed DRM protection measures with a program that was freely distributed constitutes a major violation of computer owners' absolute right to control what does and what does not get loaded onto their computers, and how their computers shall be used ... [SecuROM] cannot be completely uninstalled. Once installed it becomes a permanent part of the consumer's software portfolio ... EA's EULA for Spore Creature Creator Free Trial Edition makes utterly no mention of any Technical Protection Measures, DRM technology, or SecuROM whatsoever."

33 of 336 comments (clear)

  1. Hugely disappointed with Spore by Anonymous Coward · · Score: 5, Funny

    I'm never buying anything made by Wil Wheaton again.

  2. What's to stop them? by Dr_Banzai · · Score: 4, Insightful

    What's to stop them from including a clause in their EULA allowing the installation of shadow DRM?

    1. Re:What's to stop them? by wfstanle · · Score: 5, Informative

      IANAL

      There is a principle in law that a clause in the contract can not invalidate a law. Also, you cannot waive a fundamental right that is granted by the constitution. To give an (absurd) example...

      In a hidden clause of a contract (or EULA) it says that you agree to give up your first born child. If the other party tries to enforce that clause of the contract, the courts would invalidate that clause (and maybe the entire contract).

    2. Re:What's to stop them? by AKAImBatman · · Score: 5, Informative
    3. Re:What's to stop them? by Red+Alastor · · Score: 5, Interesting

      Also, this is not a contract. Clicking 'I agree' is not a legal way to sign a contract and it is not legal to unilaterally add conditions once a deal is done (once you gave them money, they can't force more conditions on you). They know this, this is why they call it a license. However, a license cannot only grant you rights, it cannot remove them from you.

      Hence, EULAs are bogus.

      --
      Slashdot anagrams to "Sad Sloth"
    4. Re:What's to stop them? by Repossessed · · Score: 4, Interesting

      The courts do not see it that way. I've seen a number of cases were EULA's were deemed valid, I have yet to see one where the EULA was deemed invalid (though parts of it being unconscionable are probably common enough).

      --
      Liberte, Egalite, Fraternite (TM)
    5. Re:What's to stop them? by williamhb · · Score: 4, Interesting

      Also, this is not a contract. Clicking 'I agree' is not a legal way to sign a contract and it is not legal to unilaterally add conditions once a deal is done (once you gave them money, they can't force more conditions on you). They know this, this is why they call it a license. However, a license cannot only grant you rights, it cannot remove them from you. Hence, EULAs are bogus.

      Some courts have upheld EULAs in the past. In some cases they have even upheld shrinkwrap EULAs that you cannot see until after you have accepted them (where a 'reasonable person' would have expected the clause to be present in the contract). I am not a lawyer, but I strongly suspect the parent poster isn't either and you should think twice about taking his "EULAs are bogus" advice.

    6. Re:What's to stop them? by harl · · Score: 4, Informative

      The 7th circuit court of the USA disagrees with you. Click through licenses are valid legal contracts.

      Please see ProCD v Zeidenberg

      --
      I find being offended by me offensive.
    7. Re:What's to stop them? by Alsee · · Score: 4, Interesting

      The U.S. District Court of Kansas in Klocek v. Gateway [2000 U.S. Dist. Lexis 9896, 104 F. Supp.3d 1332 (D. Kan., June 16, 2000)] ruled that the contract of sale was complete at the time of the transaction, and that additional terms included in the package did not constitute a contract, because the customer never agreed to them when the contract of sale was completed.

      There ya go.

      But really the case *I* want to see is one where software installation pops up a click though EULA, the person clicks the EULA's DECLINE button, and then proceeds to complete installing and using the software anyway. It's not particularly hard for a programmer to write a utility to do that.

      US law Title 17 Section 117 explicitly states that you need no license whatsoever in order to lawfully install and run software you have bought. So you have explicitly declined their EULA contract offer (which is what an EULA actually is, nothing but a contract offer), and you have perfectly lawfully installed an lawfully use the software. By declining the EULA you receive no license and receive nothing else the contract offers, but generally EULA offer nothing that you want or need.

      THAT is the court case I want to see. There is absolutely no legal reason you need to accept an EULAs. You don't need it. It's just that they make it really inconvenient to install it without clicking the agree button. In the case I described they have absolutely no hook available for them to hang a claim of contract acceptance. They sold it to you, you declined the contract, and you perfectly lawfully proceeded to use the software you bought without any contract and without any license.

      Actually I believe there is a valid argument that a purely local process of clicking the "accept" button on your own computer and involving no one else and doing nothing you didn't already have the right to do, that that would validly establish a contract either. However that is a far more disputable situation and it seriously has the appearance of accepting a contract. I think judges are going to have a hard time seeing past that appearance of contract and ruling against it unless there is a a clear ruling on my reject-and-install example first. Once it is clear that you *can* legitimately avoid the contract then they will be far more accepting of the legitimacy of other means of avoiding the contract, more accepting of more subtle arguments on what exactly what act does or do not indicate binding acceptance of the EULA contract offer.

      -

      --
      - - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
    8. Re:What's to stop them? by Alsee · · Score: 4, Interesting

      What about the DMCA?
      Thoughts?

      My first thought is to puke.
      My second thought is that "click yes to continue" ranks about three levels below ROT13 as a technical protection measure.

      The DMCA is a totally incoherent clusterfuck of a law. I have actually read most of the judge rulings on DMCA-circumvention cases, and I don't think any of them have managed a coherent construction of the critical issues. They apparently decided if they like or dislike what you are doing, dodge the undefined aspects, and then conjure some very creative narrow discussion with little connection to anything in the actual law an no connection to anything any of the other judges have ever ruled. If the judge views you as some naughty hacker doing something to annoy wholesome businessmen, then he rules against you. If he decides the businessmen are abusing the DMCA then he makes up some excuse to toss the case.

      Some judges would likely be more than willing to hit you with the DMCA in a ROT13 case but I think.... I hope... that few would actually buy into "click YES to continue" as an effective technical protection measure. But yeah, I can definitely see some company pushing that argument. Puke puke puke.

      -

      --
      - - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
  3. I prefer another form of protest by thermian · · Score: 5, Insightful

    I've just stopped buying any of their games. Simple yes, but the easiest form of protest, and it works because they are right now down about £200 in lost sales from me.
    I don't download them from piracy sites either, I just completely ignore their products.

    --
    A learning experience is one of those things that say, 'You know that thing you just did? Don't do that.' - D. Adams
    1. Re:I prefer another form of protest by Paradigm_Complex · · Score: 5, Insightful

      They can just attribute your loss in sales to piracy. There's just not enough people willing to stop buying EA's games in protest to actually change EA's minds. If a successful legal attack is practical it may be the best option.

      --
      "A witty saying proves nothing." - Voltaire
    2. Re:I prefer another form of protest by Schemat1c · · Score: 4, Insightful

      For example, I don't think the RA3 devs had ANYTHING to do with the SecuROM crap, yet by not buying their games you essentially cut off their fundings. If the studio disappears because of it, we'll all be crying because yet another good PC developer will have bitten the dust.

      Then developers will learn not to work for studios that sign on with distributors that use DRM. Pain is the best teacher.

      --

      "Nobody knows the age of the human race, but everybody agrees that it is old enough to know better." - Unknown
    3. Re:I prefer another form of protest by Gorgonzolanoid · · Score: 5, Insightful

      In a similar way, I stopped buying CD's as a protest against the RIAA. I've got over 200 albums on my iPod: no downloads, all imported from CD's I own, of which exactly *one* was bought less than so many years ago.

      Some time after I stopped buying, I read that they were suffering from a loss in revenue (not that I think my personal bit was of any visual influence in that), and they were attributing it to piracy. Not to displeased customers like me giving them the middle finger, only to piracy.

      So in a way, they were using my protest to "prove" that their actions - the same ones that made me stop buying CD's - were right all along.

  4. Best way to get back at them by schnikies79 · · Score: 5, Insightful

    Don't buy them and don't download them.

    Just don't play them at all.

    --
    Gone!
  5. Re:Of course the installer must leave something by davidphogan74 · · Score: 5, Insightful

    I'm not sure that's really a great defense. If I uninstall software, I don't expected phantom memory use by something I'm not using anymore.

    I know it's not realistic, but it doesn't change that uninstalled programs should not leave shit all over my hard drive.

  6. Re:Of course the installer must leave something by Anonymous Coward · · Score: 5, Insightful

    There is a difference between leaving "hey, I was here before" traces, and actual executables that continue to load and run on a machine.

  7. Re:How to remove that crap? by khellendros1984 · · Score: 5, Informative

    in run->services.msc, stop and disable the securom service. In the Documents and Settings, in Application Data, delete the SecuROM folder. Delete UAService7.exe from windows\system32. Run "sc delete useraccess7" from the run command on the start menu, or from a command-line prompt. Delete the key [HKEY_LOCAL_MACHINE\SOFTWARE\SecuROM] from the registry.

    Note: This will, of course, stop any SecuROM game from functioning until you reinstall it, and various games may put the actual files in different places....but this should give you a starting point. I haven't actually tried this...although I plan to when I get home tonight. But it looks sane enough to me.

    --
    It is pitch black. You are likely to be eaten by a grue.
  8. Should not have to. by www.sorehands.com · · Score: 5, Insightful

    Why should I have to run Deep Freeze, or any type of software to return my system to a state before a program is installed?

    Unless I give explicit permission for a program install something, then it should not be installed.

    How is EA doing this different from anyone installing trojans, spyware, or virus?

    1. Re:Should not have to. by houstonbofh · · Score: 4, Insightful

      While the EULA may have given them the right to eat babies, did it fully disclaim that it would install additional software that would be running all the time, hidden, and not removed by the uninstaller? To have informed consent, you need to inform. Also you need a way to not consent, which means a return policy more open than "piss off."

    2. Re:Should not have to. by houstonbofh · · Score: 5, Insightful

      If you can only read it after purchase, and there is no way to return it for full refund, you can use unconscionable demand, and informed consent defenses. Also, if it is not clear that it can not be removed (and I have never seen a clear EULA) you have another club to hit them with. The Amazon reviews were the canary dieing in the coal mine. EA missed that, and I think it will hurt them.

    3. Re:Should not have to. by moronoxyd · · Score: 4, Informative

      How about you RTFA, or even the summary?

      "EA's EULA for Spore Creature Creator Free Trial Edition makes utterly no mention of any Technical Protection Measures, DRM technology, or SecuROM whatsoever."

      It was not in the EULA, so EA has installed software on the users computer without the users knowledge.

  9. Re:Of course the installer must leave something by sjames · · Score: 4, Insightful

    Fine, but they need to ask permission before making a change that can only be backed out by reformatting your HD. Either that, or PAY for you to have your machine reformatted and re-installed with everything but their steaming pile.

  10. Factual information, please? by Edgewize · · Score: 4, Insightful

    Does anyone have a solid description of specifically what this form SecuROM "installs", what it does, how it is harmful, and why it can't be removed?

    Every time this topic comes up it becomes a "How dare they!" bitchfest so I've never been able to figure out the answers to the above.

    I'm not saying that this is definitely just a pile of FUD combined with general anti-corporate hate against EA. But I'm leaning that way without real evidence.

    1. Re:Factual information, please? by Repossessed · · Score: 5, Informative

      Reading over the legal filing for the creature creator demo, a few very specific complaints are made.

      It allegedly disables a number of semi legitimate (Any DVD, Daemon tools), and completely legitimate (Process Manager, Alchohol 120%) software tools. (10 specific programs are named) It also claims that it interferes 'in some circumstances' with having a secondary CD drive (I assume it prevents burning a copy of a CD that's in the other drive), and that all of this occurs whether the demo is running or not.

      Looking at the filing, they mention process manager as its own claim, given that this is a legitimate tool used to identify rogue processes, EA can't really claim, (falsely or otherwise) that it is a piracy tool, the way they'll surely claim with the others. AnyDVD is a particularly interesting one as well, since to my knowledge, it only affects movies, and has nothing to do with any EA product at all.

      I can't actually say if the claims are correct for the specific version of SecuROM in the demo game, or if a lawyer simply looked at the things SecuROM is known to do and filed those, depends on how bright s/he is I suppose.

      --
      Liberte, Egalite, Fraternite (TM)
  11. What is wrong with EA? by Ender77 · · Score: 4, Insightful

    I have personally stopped buying any EA PC games after spore and I know of other who have also. I am also aware that piracy for EA games have SPIKED after they started implementing the DRM scheme. You have to seriously wonder what is wrong with EA. While the games are still making a buttload of cash, They have to realize that they are probably not making nearly as much as they would if they had not implemented the DRM scheme. On top of that they are pissing off the fan base into rabid hatred for them, and motivating the fans to not only pirate the games, but to go to review sites and post negative reviews about the games because of the DRM. Buisiness 101 should tell them this is not a good business in the long run and if you are a shareholder I would suggest getting rid of the stock because this is going to come back and bite EA in the ass.

  12. Re:Of course the installer must leave something by Tatsh · · Score: 5, Informative

    It might sound like a dumb idea and has no reason (there is no disc to authenticate with), but the DRM is present in demo versions only because crackers used to use demos to crack the retail versions of the games. They were a good starting point (especially with StarForce games) as most of the code to start the game was EXACTLY the same as what would appear in the retail version if it had not a copy protection placed on it.

  13. Re:Of course the installer must leave something by Just+Some+Guy · · Score: 5, Insightful

    One continues to affect your computer's operation while the other does not.

    --
    Dewey, what part of this looks like authorities should be involved?
  14. Re:This ain't going anywhere by Khyber · · Score: 5, Insightful

    Umm, BULLSHIT.

    SecuROM revokes some of your administrator priviledges and disables other legitimate programs on your computer. This is anti-competitive behavior (interfering with other products from other companies/individuals,) and a violation of my property rights. I own this computer, you do not have the right to revoke some of my administrator priviledges and make it to where I cannot delete files from my own goddamned system.

    Maybe in YOUR bizarro world this wouldn't go anywhere, but then again facts always fly in the face of the bizarre.

    --
    Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
  15. No. That's not right... by Eric+Damron · · Score: 5, Informative

    Their EULA says nothing about installing hidden software that will never be removed.

    Even by agreeing to the EULA you don't agree to "all things not mentioned."

    If so where would it end? Could they search my harddrive for credit card information? Format my harddrive on a whim? Store their own stuff on my computer without telling me? Of course not!

    --
    The race isn't always to the swift... but that's the way to bet!
  16. Re:So, EA has to do business your way? by professionalfurryele · · Score: 4, Insightful

    I just don't get this attitude. Copyright is a social contract. It isn't part of a capitalist economy. It is defacto a subsidy for production of culture in the form of a government mandated monopoly. In a pure capitalist society you wouldn't have rights to control the replication of bits. Copyright IS by definition a form of socialism.

    Here is the deal. We give companies and people a time limited, government mandated monopoly on the reproduction of a good because the cost to develop the good is large and the cost to reproduce it is very small. We throw in a few caveats to try to stop them abusing that monopoly. We do this with a good everyone has a right to have access to (national culture), and in return we expect a few things.

    First off, don't abuse the monopoly. You get the financial benefit of a monopoly, that's it. You don't get to screw customers just because you are the only provider of a product. Secondly, respect the social contract. The monopoly is time limited and if you release a product in such a way that you establish a permanent monopoly you are abusing the social contract. DRM does exactly this because it is design to prevent works of art from being copied.

    Here EA have basically done both. They have abused the social contract by putting DRM in the product in the first place. Then they have abused the monopoly by essentially infecting machines with a virus. That virus would not be there in a free market environment because competitors to EA would not be stupid enough to put it there.

    The rule should be simple. You can have the protection of DRM, or you can have the protection of copyright. But you cant have both because one is a de facto permanent monopoly.

    Now I happen to be one of those people who is prepared to put up with a bit of socialism if it increases net societal good. But if EA cant live up the the social contract then their monopoly should be withdrawn. That should be the penalty for abusing what is at the moment a pretty sweet deal (at least for the major content producers). Heck I wish I could still be getting paid for work I did today 100 years from now.

  17. Re:Of course the installer must leave something by hairyfeet · · Score: 5, Informative

    Not to mention as a PC repairman I have seen that these kinds of DRM can cause serious problems and even hardware damage. I've seen PCs that you couldn't burn anything with because the DRM would screw up the burn every time, I've replaced both DVD and CD burners because the DRM would throw them into PIO mode and burn them out,weird lockups and crashes of the entire system that magically disappear when they DRM infection was removed,etc.

    Now I had no problem with the "you have to keep the CD in the drive" old school DRM. It was irritating but was easy enough to get around with a noCD and still kept Joe Average from just hitting copy in Nero. But today's DRM is just too damned nasty,and has more in common with virus infections that legitimate software. It hides from the user,it makes itself a royal PITA to get rid of,and it causes all kinds of PC screwups that are damned hard to track down. Actually I'd say some of the newer trojans actually behave better than the new Starforce and SecuROM infections,since they leach off the bandwidth without causing all kinds of errors.

    It has gotten bad enough that when a customer brings in a PC for cleaning and repair I look for SecuROM and Starforce just like I look for worms and trojans. Because the "virus free" computers that are brought to me because they are screwing up always seem to have either SecuROM or Starforce on them,and its removal makes the problems go away. They are just going to have to face the fact that like Apple's iTunes DRM,the best you can do without boning your customers is stop the casual pirates. Because this new DRM infection only screws your paying customers and as we saw with Spore the pirates had their copy before it was even released.

    And while I love MoH and C&C I simply won't be giving EA another dime of my hard earned money until they get rid of the infections on their products. My gaming PC runs quite stable and well and I have no intention of breaking it just for the privilege of giving EA $60. Sorry C&C and MoH developers,but you lost a long time fan and paying customer thanks to the viruses installed in your games by EA.

    --
    ACs don't waste your time replying, your posts are never seen by me.
  18. Re:How to remove that crap? by Gnavpot · · Score: 4, Informative

    Can you mount under Linux and delete them?

    I have not tried, but I suppose you can.

    But that is not the point. The point is that SecuRom on purpose makes illegal filenames to block normal Windows file commands from working on those files.