EULAs Out of Control, Says ECA's Hal Halpin

March 22, 2008 -

Does anyone even bother to read those End User Licensing Agreements (EULAs) that come with games and other types of software?

Maybe you should.

ECA president Hal Halpin, in a column for GameDaily, worries that game publishers have exploited EULAs to the detriment of game consumers:
 

EULAs are a real and tangible problem... Quite simply, they're out of control... these contracts have become so unwieldy that they regularly infringe on consumer rights. Many would likely be unenforceable in a court of law. Others, consumers would be shocked to find out what all of that fine print actually meant.


 

The reason for the EULAs existence is sound. Certainly no reasonable person would expect the creator or seller to lose all of their rights in a sale. But neither should a consumer...

I propose that we form [a] working group to address this problem... It needs to be an open and inclusive process... There's no reason to think that we couldn't standardize the EULA and create one contract that all developers, publishers, retailers and consumers know, understand and respect. The implications would be broad and the downside negligible...


PC Magazine has more on EULA madness.

Full Disclosure Dept: The Entertainment Consumers Association is the parent company of GamePolitics.

 


Comments

In breaking news Hal Halpin gets his face in the news by being concerned about something that most PC gaming mags highlighted as a growing problem THREE YEARS AGO!

I never, ever, ever, ever read those things. I know I shouldn't be lazy, but I am. I just assume they say "no refunds, no redistribution, use at your own risk, dont sue because we'll win, no piracy, this is intellectual property, etc."

So what does the fine print say?

I joked that some day I would make a game in which in the middle of the agreement you agreed to give me 10000000 dollars to play. Might not be a joke anymore.

@ Zachary

It follows on from my comments at the end of the Custers Revenge article. The ECA seems to be establishing a habit of talking how bad a prolem is while doing very little about it.

I think that everyone fails to realize that even though this topic was brought up in the past, that the ECA didn't exist back then. Now that they do and have an ever growing number of gamers perhaps they will have enough power to make change.

"Oh wait the ECA responded to that very publicly and very vocally."

Who hear it besides the choir he was preaching too?

It depends on who. They do just say that, but they have a whole lot more. A good example of infringing on the End User Agreement deal just read what you've agree to for Xbox Live or most Microsoft products. It is mind boggling, but since it isn't like most of us could do anything about it we just go with it. I do understand from a legal standpoint they don't want to get sued, but saying how you can use something you bought doesn't make any sense either. It seems if you use a product for even a doorstop when you didn't agree to use it as one you break your warranty on it. Just reading the Xbox Live user agreement I swore like a sailor will give you a clue at the insanity.

I think i like the idea of a standardized EULA... i mean, when it comes to what the companies need to protect, i think they should all have more or less the same concerns and that all of their primary concerns could be addressed in a standardized EULA...

Grant it, we'd likely need more than one standardized EULA, as certain genre's will have different concerns... such as online games, compared to non-online games, compared to software. It probably would be possible to make several standard EULA's for each main area... with such a system, a user would only need the read the agreement once for each area and have an understanding for ALL. And yes, there might be some stuff that companies would want to put in themselves, but really, as Hal says, a lot of times those extra "concerns", are probably meant more to screw the consumer over in some fashion

As the PC Magazine article reminds us, this has been a problem for more than a decade, but it's nice to see more noise about this, and nicer still to see courts starting to strike them down.

One of these days we'll start seeing reforms to copyright and patent law, too, but I'm not holding my breath.

There ought to be some kind of standardisation going on, Digital Distribution has opened a whole new world of Copyright concerns, and whilst they keep treating them as 'bolt-ons' to the old Paper and Audio copyright laws, it's just going to get more and more unwieldy and open to abuse.

This is a welcome move. I've said this before, but I think the ECA has not yet made good on its claims to advocate for consumer rights; instead it's been playing ESA Jr. with politicians. Topics like EULAs, false advertising, manufacturing defects, and related matters offer ways for the organization to advocate for consumers. The Xbox ring of death as an example of something that could easily have been "Ralph Nadered" but wasn't.

Please tell me that this is the ECA dropping their nuts and starting to step up...

I completely agree with that assessment of EULA's.

They were absolutely right about EULA's I remember reading in another article about them a while back, it's good to see the courts starting to strike them down. I hope the ECA starts to go after them and get some fairness in the system

@ Grizzam

Didn't read the comments before posting otherwise I'd have repsonded to your comment in my last post.

Don't hold your breath, this is just Hals usual cynical bi-monthly 'Get my face in the media by taking an old issue people have already brought up back the dark ages and making it sound new and threatening' stunt.

Hal Halpin is just as much a media attention whore as Brucey boy.

He's the head of the friggin ECA for gods sake. We don't want to hear he's forming a "working group to address this problem" which essentially means a group of idiots sit around committee style discussing how action should be taken while not taking any.

Governments and Councils form "working groups" all the time. The end result: Two years of wasted time and money and no action is ever heard of being undertaken.

Grow some balls Hal and take the problem to the problem-makers. Don't form worthless committees to sit around discussing how much of a problem the problem is and how they should probably do something about it.

@ DarkSaber

Um...What do you think he is doing? If you read the whole article you would see that he is trying to get the IGDA (represents developers), the ESA (Represents publishers), the EMA (represents retailers) and the ECA (represents consumers) to all get together and change EULAs.

AS for the "three years ago" thing, has the situation with EULAs changed any in those three years? No. So why is it not worth bringing it up again?

Damn, triple post, sorry.

But EULA problems were raised as an issue way back when Sony raped Star Wars Galaxies and completely changed the structure and nature of the game overnight, costing people characters they had invested hours and dollars into as they became worthless in the face of the new game structure.

Complainers were directed to the fairly standard EULA clause that the games makers could substitute any part of the game for something completely different at any time with no warning.

Where was Hal and the ECA while this happened? Probably getting that stupid 'Me so cool' picture that accompanies every article to do with him taken.

@ DarkSaber

The ECA did not exist until a year or so ago. SO they were not around during Star Wars Galaxy.

As for your comment about only trying to get face time, I don't see it. They are announcing their opinions and getting their members to help put pressure on those they are against.

So you and you negative outlook on their efforts are no help on getting change to happen. So if you want to see change, why don't you stop complaining about what you perceive as a lack of action and actually do something yourself?

I remember a couple years ago there was a college student who bought a copy of Microsoft Office, found out that he couldn't even install it on his system, and tried to sell it on ebay just to get what he paid for it back. Microsoft sued him for violating the EULA, and he actually won while representing himself. Part of the reason he won was because the EULA said that by opening the package you agreed to it, but in order to even read the EULA you had to open the package.

I put a link to it as my website, since the last time I tried to link something my comment never got posted.

"EULAs Out of Control, Says ECA’s Hal Halpin"

Preach it, brother. Amen!

Some of that fine type is utterly ridiculous.

I think we all still remember the horrors of the Bioshcok scandal last year. Bioshcok came out and it was a huge success. However, you only got 2 activations inititially (now you have five). The EULA didn't mention this, the manual didn't mention this and the back of the box did not mention this. Nor did it mention that 'this game has securom copyprotection software'.
I wrote a post on 2K games forums saying that I thought it wise to mention this - preferaby on the back of he box but in the EULA as well.

I also remember one guy finding out that Bioshock and 2K game actually were in violation of their own EULA for some reason. The thing with Bioshock is that you pay for what you think is a complete game, but the game's .exe file acually has to be downloaded from 2K's servers which means that a lot of people couldn't do so, either because they live in an apartment building or a college that blocks these ingoing lines...

And it becomes really funny and tragic when a game (or a movie) has in its EULA that it is forbidden to copy this....game or movie, but the law of the land says that you're allowed to make 1 copy for safe keeping for your personal use. It is really very annoying...

I once wrote one elsewhere to think of what would happen if books had EULA, not digital books, but real tangible books that you can hold read while holding them... There would be a public outcry...

Anyone have a link to the EULA analyzer the source mentions? That'd be useful for wading through all the ones you end up signing on a regular basis.

EULA are unenforceable in courts i thought?

I'm glad to see the ECA tackling this pertinent issue, as I agree it is a genuine cause for concern among not just gamers, but a lot of people. What with all the time we spend fighting PR battles, it's easy to lose sight of the fact that there are other issues that may not be as sensational, but just as relevant and this is one of them.

Like many, I hardly bother to read the EULA as to me it looks like a bunch of legalese that would quickly put me to sleep if I took the time to read all of it. But there is truth in that some developers/companies make their own versions and there's little consistency. So standardization would indeed be a good thing. Full disclosure wouldn't hurt for that matter either, as was pointed out by Karsten's post regarding BioShock.

@ Zachary

Because I already am mate. Difference is I don't seek glory or 'face-time' (good phrase, mind if I use it in future?). I seek change.

This is EXACTLY the kind of issues the ECA should be addressing. Taking on issues like this is also exactly what they need to be doing to increase their membership and their legitimacy. But as the old saying goes, deeds not words.

I understand the need for a EULA and where the developers are coming from. But at the same time there needs to be somebody looking out for consumer rights. I'm not even expecting an even balance, just some common sense and decency.

@ DarkSaber

Good luck to you.

I don't think it is wrong for the ECA to announce their intentions like this. They are after all a public organization. No sense keeping all their work a secret. The members of the organization need to know what they are doing. The oponants need to know what we want.

So what is wrong with Hal sending out press releases and have interviews?

Double Post:

I would also like to say that it is very hard to please the general populace.

On the one hand, early in the ECA's life, we had plenty of people complaining that the ECA wasn't doing anything because nothing was announced.

Now we have people complaining that the ECA is only trying to get media attention when they do announce their attention.

Why is it so hard to please people? Why can't people be happy knowing that the ECA is trying to help consumers without thinking that Hal has some alternative motive?

@E. Zachary Knight

What a thought.... the head of the ECA getting a press release on the site which is part of the ECA...

And honestly, what Hal said isn't incorrect, or even "too late". There also is no evidence that the ECA has been so thoroughly unsuccessful as DarkSaber seems to imply. If anything, I see this as Hal trying to attract more consumers (gamers) to join the ECA, to make it have a bigger impact on things. So, at worst, he's trying to make the ECA more effective. At best, these actions will help produce change.

Interesting, I would like to hear what Hal's thoughts are on what exactly should be changed. Honestly, I never read an EULA through and have never had a problem in reguards to it, but I understand that some have. This would be an interesting committee as all sides (consumers, retailer, devs) are going to have compromise on something. Any side going into and with a "all or nothing" attitude is going to doom it from the start.

Even if the EULA had a plain english summary at the beginning, outlining the basics of "you can" vs "you can't" that detailed everything that would affect an average user.

That might be an easier step before suggesting a standard software EULA, that way each company can still pull a dodgy and hide claims that violation of the EULA results in the forfeit of both your legal rights and your firstborn child but they can add the summary at the beginning to explain what the rules are.

I do read those... but usually about a week/month after buying the game...

can they state specific examples from actual video game EULA that infringe consumer rights?

I like those easy-to-read summaries too. It's a shame so few companies do that. Just one paragraph summing up all the important bits in non-legalese. Though, there should be some rules determining what actually is important, otherwise such a summary could be (even more) misleading.

I do actually try to read EULA's when I suspect something fishy could be in them, like when playing EA games or buying MS products. Mostly I just skim through them for words like 'privacy', 'personal data' and 'rights' etc.

Now I'm wondering what things I have, unwillingly, agreed to. Does anyone have examples of EULA's which are clearly 'out of control'?

@Aliasalpha

I think that might be less enforceable, though. It wouldn't be hard to tell if a company violated a standard EULA, but what if a company conveniently "forgot" to be more specific on certain things in the summary, or just slightly tweaked some of the words to make something not sound as bad as it really is? It could be even worse if someone just reads the summary and thinks he/she is in the clear. It think it would encourage people not to read any further

@ Elalonna;

Ever owned a Nokia phone? If you, you agreed to be bound by the laws of Finland.

Microsoft in most of their EULA's say you agree that you can receive no more than $5 in damages. But of course you also agree that the (MS) are not responsible for any damage done to your computer by their software.

The thing that has happened is that when people sue on these EULA's some courts (and its getting to be more thanks to precedent) are saying some of these terms are "unconscionable" meaning grossly unfair.

In one case (I don't remember the name) a court told MS that they couldn't have that "damage limit" because it was up to the court/jury to decide damages. He said something to effect of:

Allowing corporate defendants to set their own damage caps would run counter to the interests of justice. It is for the court or the jury, not the defendant to decide the amount of compensation warranted to the plaintiff in a given case.

However, the terms stay in the EULA's because so many people think that once they've "signed" a document that's the end of the road. But there is no such thing as the "airtight" contract because you can always sue on "unconscionability." There is always a chance that the court will find a term of the contract substantively unfair, to the point where it becomes invalid even if agreed to.

The EULA's that we are getting today are pretty bad. The majority of them are more then likely unenforceable in court. The are way to many legal reasons as to why they are unenforceable to list them all here. But to give you a good plain engligh summary of what they are now saying.

Baiscally you accoridng to the EULA, you do not "buy" a game like you buy a dvd or buy a cd. You instead buy a license to play that game.

Now under common law licenses are revokable by the grantor at anytime and for any reason, unless the grantee can demonstrate that they spent a large amount of money/time relying upon the license to be continued.

Ex. you are granted a license to go hunting on your friends land. over the course of many years you spend thousands and thousands of dollars, building a cabin, roads, feeders, stands etc. And then he revokes the license. well in this case you MAY get to keep it.

There is some case law on EULA's however it is very slim and mainly focuses on the sale of software to coporations not comsumers.

The real kink is that you never get to see it until AFTER you purchase the software. This is a real legal trouble spot and the courts so far have handled by saying "well if you get the software home and read the EULA and decided you don't agree then you can get a refund"

However most retailers will not refund opended software.

This whole EULA business needs to be seriously done away with. There is absolutly no reason that a company can't be adequatly protected by the traditional Copyright laws and the DMCA without the addition of this legal insufficient EULAs.

Can you imagine buying a book from Borders, opening the cover and seeing. "End User License Agreement" By turning this page you are agreeing that you will not distribute, copy, reverse engineer this work. You agree that this work in its entirey is wholely owned by the creators of this work and that you have purchased a license to read this work. This license is non-transferable and can be revoked at the will of the creators at any time. etc etc etc.

Glad someone is talking about this.

Look at the EULA for the original Half-Life vs. what you have to agree to now if you install the game on Steam. It has grown to ridiculous proportions, and none of it is legally enforcable.

They should just call it 'meaningless mumbo-jumbo' because that's all it really is.

Here here! Great idea, Hal. Make it so!

E. Zachary Knight
Have to agree with DarkSaber2, Hal has given more "face time" on the issues than anything else, of course the ECA is a maturing organization and can;t really do much more than kiss up to thos in power and whine in bi monthly publications.....but I guess tis better than nothing.
:P

@ Zippy and DarkSaber

I have a suggestion. If you guys think Hal is doing such a bad job at consumer advocation, then why don't you start your own consumer rights organization and see if you can get sweeping industry reform done any better in the first year.

@ Zachary

Just because I can't do better myself (what with me not having what appears to be a real 'We used to work together' relationship with people in the industry, or money) doesn't mean they are doing good.

Plus sweeping change is only half of what the ECA say they are about. I'll concern myself with doing a better job of the other part of their focus: Debunking myths and faux science articles and blatant manipulation of the truth where-ever I can, especially when they leak from little stories on the corner of the net into the mainstream media.

Change is one thing, but as I see it, the only thing that needs changing is the way people view gamers. And that's not gonna happen if the group that is supposed to be defending gamers is more concerned with face-time then debunking myths.

Every time an article based on phony science, jingoism and scare-mongering is pubished, it puts another obstacle in the path of progress because it reinforces the view people already have of us. Every time the ECA fail to respond to these slanderous articles (and they ARE slanderous sometimes) they have failed the very group they claim to be protecting the interests of. Sweeping reform is one thing, everyone here is capable of rationally, logically and intelligently picking apart these stories amongst ourselves, so is it really beyond a year-old organisations to start putting out press releases in response to these stories? At the very least, the ones that make the more serious allegations should be directly addressed.

Sure, some people wont listen, some never do. But if you say nothing, then it's damn well certain that no-one will hear. The ECA seems a little too fond of disappearing behind closed doors, emerging once every couple of months or so to remind gamers it's alive and still wants donations.

GRIZZAM 512 said it best in the recent Custers Revenge article:
"They never do a damn thing when this shit happens. The best thing done to defend games that wasn’t our effort was EA’s response to the Mass Effect thing.Yep. That’s it."


@ Everyone else

The best EULA clause I ever read about was for some MMO. (Forget the name, so if this rings any bells shout out with the answer!) The clause stated that by signing the EULA you were agreeing not to publicly criticise the game through any means, either personally through blogs etc. or through professional media channels. It also stated that no pictures from the game could be posted, even by reviewers.

Needless to say, the critics still panned the game and captioned their screenshots with lines like 'According to *Developer* we are breaking the law showing how the game looks!'.

@ Darksaber

I am sorry. I guess when the ECA came out and called Fox NEws on the Mass Effect thing, they were really hiding behind closed doors and we were all imagining things.

I think you are confusing the ESA (Entertainment Software Association) with the ECA (Entertainment Consumer Association).

Other than that, why don't you give me some examples of news stories in the last 6 months that needed and didn't get an ECA response. I can't think of any. The ECA has come out against any bills that have been announced recently. They have called on their members to write their politicians in those cases. But there has been no real "slanderous" or "libelous" news articles worth the electricity needed for an ECA response.

Let's see, we have a Fox News headline stating that gamers killed their kid. The article had one reference to games amongst five other leisure activities the parents did besides take care of the kid. No need to respond to that.

There was the NIU shooting. That was blamed on video games. Oh wait the ECA responded to that very publicly and very vocally. SO I guess they were hiding behind closed doors and we were all imagining it again.

Do I really need to go on?

I don't think may of us bother to follow the agreements fully. I bet all of us have violated the EULA so many times that it is reticules to even have such a thing. The way I see it, as long as you bought the game legally and are not starting a pirating network then anything goes. The thing is really stupid.

[...] Law of the Game Digs Into EULAs March 28th, 2008 | Category: Gaming News In a recent column for GameDaily, Hal Halpin, president of the Entertainment Consumers organization (ECA) fretted about End User License Agreements (EULAs), that mysterious legalese to which game software users are due to agree before enjoying the product for which they’ve just plunked down $39.99 or more. [...]

Excuse the extraordinarily late post.

This is the sort of thing that makes me happy I live in Scotland where EULAs are not legally binding. The reason for this, is surprisingly fair, and makes you wonder why Scotland is the exception and not the rule. The reasoning is this. In order to read the licence agreement, you need to have already bought the product and by that point they already have your money. How can you agree to something you didn't know about at the time of exchange. While EULAs try to side step this by saying don't install if you don't agree, you've paid for a licence not what comes in the box, therefore you can not be held to the terms of the agreement.
 
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