Law of the Game Digs Into EULAs

March 28, 2008 -
In a recent column for GameDaily, Hal Halpin, president of the Entertainment Consumers Association (ECA) fretted about End User License Agreements (EULAs), that mysterious legalese to which game software users are required to agree before enjoying the product for which they've just plunked down $39.99 or more.

Attorney and Law of the Game blogger Mark Methenitis picks up the EULA theme in his latest column for Joystiq:
Copyright law and its application to new media has lagged well behind the curve of practicality... technology has now pushed the envelope to the point that it is generally impractical, if not nearly impossible to impose the centuries old concept of 'copyright' that originated with the printing press...

That's not to say the powers that be haven't tried to adapt copyright to new media. The Digital Millenium Copyright Act (DMCA) was the last train wreck of an attempt to do just that... the problem with a lot of legislation is that the law is primarily drafted by legislators who, to be quite honest, know next to nothing about what they're trying to legislate, while being prodded by highly paid lobbyists who, generally, represent the side with the most money...

With regard to games, Hal [Halpin] has the right first step in mind: there needs to be some sort of large scale discussion about the issue amongst the industry people...

This is an opportunity for the game industry to be proactive and take the lead in dealing with the EULA. Clearly, the license cannot go away altogether, but it can certainly receive a facelift that would be beneficial to both the producer and the consumer.

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

Comments

From the joystiq article:

Let's say you own both a laptop and a desktop computer, and you buy a copy of the '8th best game of 2007' ... (Peggle, duh). Generally, the EULA will let you install the game on one machine. But you have two. Shouldn't you be able to install it on both, so you can play it at home (on your desktop) and while you're traveling?

This is a point that has been sort of addressed by Microsoft. The EULA for Office 2007 (Or at least the student edition of Ultimate that I bought) permits you to install it on one computer and one mobile device where the licence holder is the primary user.

I hope that this means I can have it on my desktop and on my laptop, it seems odd to describe a laptop as anything other than a computer. I don't know any other mobile device that can run standard windows software though.

I'm still all in favour of a plain english executive summary or bullet point summary at the start of the EULA that outlines the rights & responsibilities. That would be easier to convince companies to do rather than trying to get them to commit to a broad sweeping change.

Yes, glad to see someone is looking out for John Q Public. Recently, I've been considering buying myself one of those R4 cards for my DS. Not to pirate games at all, I like to support the developers who make games I like. No, the reason I'm thinking of getting one is because it will let me dumb all of my games onto 1 card.

Since I frequently bring my DS to work with me in order to play it on my lunch break, having fewer cards would be a good thing. The problem is, I'm not sure if that's "technically" legal anymore... Sure, as long as I retain the original copies I could make an argument for free use. What I'm doing isn't really any different than someone ripping CD's to play in their MP3 players.

But what if I unknowingly signed away my fair use rights with one of these EULA's? IANAL, so I never read over everything with a fine toothed comb. Could I be breaking the law by violating a contract that I couldn't understand but what was forced to tacitly agree to by buying the game?

When the agreement to run a piece of software is longer than the agreements you signed for your car lease and mortgage combined, something is wrong. Especially when you sign those documents first, before money is handed over. Not after you've bought it, brought it home, installed it, and then run it.

My favourite are the "by opening this package you agree to the EULA." And the copy of the EULA is inside the package...

EULAs definitely need to be discussed.

While my car has about as much legalese as the software I purchase the huge difference is I can legally allow someone else to drive my car (which I do when out drinking and I over did it). However allowing someone else to drive my software or use it is illegal.

I'm 100% behind this push to rework EULAs. I hope a lot of good momentum comes out of this.

I think the others have hit the main point: EULAs do need a major overhaul. After reading the full article, companies tend to get away with murder with some EULAs (like only being able to install on one device).

One of the comments made on joystiq suggested people have an account that they can use for their software, and that as long as the hardware acknowledges that account, you should be able to install it there too.

Jabrwock has another excellent point: access to the EULA before purchase. With downloads, it's relatively easy. With tangible media, there's a problem. I can't agree to anything I could not read beforehand (so there might be legal action there), and once I open it, I can't return it due to federal copyright law (or something like that. I used to work in retail, and we weren't allowed to give money back for opened DVDs, only even exchanges for the same product).

So... unless they start putting the EULA on the outside of the package, there shouldn't be legal recourse for violating the EULA... or at least there should be a way to return the product if I choose to decline the EULA. If manufacturers were smart, they would put on the box "visit this website to view or write to this address for a paper copy of the full EULA before opening this product. By opening this product, you agree to the terms and conditions in the EULA." By allowing people to read it beforehand, it leads to less (but doesn't eliminate) problems.

Bullet-points should probably be like the back of video game cases. Instead of # of players, HD space and such, it should have things like "# of licenses" and the like.

@ Ragnaar

But you are talking about something that doesn't fall in most companies' policies. They don't have policies to treat the customer like human beings. They don't have policies to treat the customer fairly. The yonly have policies to make money. By treting the customer like a human and fairly, they undermine their profit potential.

It just occurred to me that Blizzard (who infamously have a very harsh EULA) may have made one of their 'amusing' references to it in one of their NPC names - as anyone who plays knows, the game is riddled with references to real things and people.

Check out the EOTS battlemaster... Yula the Fair anyone?

Some EULA's they tend to put outrages terms onto you.

Example: that wierd pet thing that puts spywarre ont your PC, and you agree to it BEFORE you ever use the pet thingy. (Is it webkinz I'm thinking of?)

I'll just go ahead and admit it right now: I don't read EULAs any more. I used to, I really did, but I've given up. I figure, I don't really care what the publisher expects of me in order to play its game. I am not a pirate, and I am not going to do anything obviously illegal with the product. If I do take an action that violates some unfair or confusing condition of the EULA, I feel I have some justification in pleading ignorance.

Unlike with most other contracts, I expect it would be no simple task for the publisher to prove I read and understood the term I violated. I'm not sure a real-world court of law is going to hold me accountable for a mouse-click the same way I would be held accountable for signing my name on a piece of paper that has been explained to me before hand.

Maybe that's too cavalier of me, or even downright foolish, but I can't believe I'm the only one who simply doesn't take EULAs seriously anymore, for the very reason that publishers have inflated them to a ridiculous, unrealistic, unenforceable degree. If "Soulless MegaPub Inc." wants to sue me for all the damages I caused by having its game installed on both my desktop and laptop at the same time, tell them to bring it on....

That is the real messed up thing about games, not only do I have to be afraid that a game will infect and break my computer with its friendly protection software(this has happened to me) but I also have to understand that because I have several computers I will likely be breaking the law(EULAs) even though I bought my games...

So what if I own several computers? If I want to play a game I bought on any computer that belongs to me that should be my legal right...

The fact that you are forced to buy a non refundable product an hour (or months if it is pre-ordered) before you see the EULA contract for the first time should make the contracts null and void in the first place...

So far, if I remember correctly, case law has held EULAs to the same yardstick as conventional contracts - that a EULA cannot excessively infringe on a person's rights, and cannot involve the commission of illegal acts. That said, any EULA is only as good as the clauses in it. In any EULA, see what sections are actually reasonable and enforceable.

Unfortunately, many people seem to hold the stance that if any part of a EULA is invalid, the entire thing is invalid, and case law doesn't support that stance. The court holds that EULAs are a convenient way to facilitate contracts - nobody wants to have to sit and read and sign a 5-page contract before being allowed to buy Halo 4, do they?

I'm sure we'll see some court cases within the next 5 years regarding EULAs. We'll see how it goes. With regard to California law, EULAs seem to be inherently voidable, since there's no ability for the consumer to negotiate the contract at all.

@ Nekojon

I won't read to sign a 5 page contract for Halo, For FEAR though? I'll read and sign.
 
Forgot your password?
Username :
Password :

Poll

Will the FCC preempt state laws that limit municipal broadband services?:

Shout box

You're not permitted to post shouts.
PHX CorpI'm going to do a test stream later today, if anyone is intrested07/31/2014 - 2:40pm
Andrew EisenYes, I'm such a big Nintendo dork that I read Nintendo's quarterly financial reports.07/31/2014 - 2:09pm
Andrew EisenCool tidbit - Mario Kart 8 sales account for more than half of total Wii U software sales for the last quarter even though it was only available for the last third.07/31/2014 - 2:09pm
Andrew EisenStill a pretty cool promotion. Unfortunately for me, I'm not interested in purchasing Mario Kart 8 and I already owned or didn't want any of the free games on offer.07/31/2014 - 1:43pm
Andrew EisenInteresting that EU had 10 games to choose from while North America only had four.07/31/2014 - 1:41pm
MaskedPixelanteIt certainly worked, I probably would never have bought Mario Kart 8 if it didn't come with a free copy of Wind Waker HD.07/31/2014 - 1:14pm
Andrew EisenI imagine will see similar promotions like "Buy Mario Kart 8 get a download code for one of these specific games" but almost certainly not for all of its (however you would define) biggest releases.07/31/2014 - 11:24am
MaskedPixelanteI wonder if Nintendo is going to be doing "buy one get one free" promos for all their biggest releases going forward.07/31/2014 - 10:48am
MaskedPixelantehttp://www.mcvuk.com/news/read/special-report-retail-revolt-over-pc-code-strippers/013614007/31/2014 - 8:27am
ZippyDSMleeWouldn't they be able to afford and get done in a timely manner a general gba emluator for the 3DS? It seems to me if they want to make money off sales they need to do it.07/31/2014 - 7:25am
Sora-ChanAmbassador program, that's what I was looking for. Anyway the other games that have been made no longer exclusive to the early adopters got updates in their software. It'll only be a matter of time more than likely for the GBA to get the same treatment.07/31/2014 - 5:35am
Sora-ChanI might be naming it incorrectly when I say "founder" i mean the program for earlier adopters.07/31/2014 - 5:34am
Sora-Chanthe 3DS's GBA emulator was a rush job due to the founder program. No other GBA titles have been released on the 3DS yet. If/When they do get around to it, they'll more than likely update the emulation software.07/31/2014 - 5:32am
Zenemulator...it's not just a slap job that makes "some" work..they do it for each which is why they work so well. I would rather have the quality over just a slap job.07/30/2014 - 5:48pm
ZenMatthew there is a difference between "worked" and "accurate". You play the Nintendo VC titles they play as damn close to the original as possible. The PSP would just run them as best they could, issues and all. And Masked...EACH VC title has their own07/30/2014 - 5:48pm
MaskedPixelanteOnce again, the 3DS already HAS a GBA emulator, it just can't run at the same time as the 3DS OS.07/30/2014 - 4:54pm
Matthew Wilsonyou cant street pass in ds mode ether, and if moders can make a gba emulator that runs very well on the psp as I understand it. you are telling me that Nintendo devs are not as good as moders?07/30/2014 - 4:49pm
Zenperformance. Halo 1 and 2 worked great because they actually did custom work on each of them...just like Nintendo does now lol07/30/2014 - 4:08pm
Zenexisting hardware while the GBA has to be emulated completely. Same reason the 360 couldn't run most Original Xbox games correctly, or had issues because they just did "blanket approach" for their emulation which led to game killing bugs or horrible07/30/2014 - 4:07pm
ZenSora/Matthew: It's not just Miiverse, but the whole idea of streetpass and things like that would be affected if the OS is not running. And just because a 3DS game can be downloaded and run does not mean that GBA can as easily. Those 3DS games use the07/30/2014 - 4:06pm
 

Be Heard - Contact Your Politician