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.
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