EULAs Inability to Stop Lineage II Lawsuit

September 3, 2010 -

A judge’s ruling earlier last month that Craig Smallwood’s lawsuit against Lineage II maker NCsoft could continue (a suit in which Smallwood claimed he was addicted to the game), could have an impact on End User Licensing Agreements (EULA).

A lawyer at Princeton’s Center for Information Technology Policy named Steven Roosa took to his blog (thanks Slashdot) to discuss the Smallwood case, using the headline “A Software License Agreement Takes it on the Chin.”

Roosa detailed NCsoft’s attempt to stop the lawsuit by using Section 12 of its User Agreement, which is entitled “Limitation of Liability.” The judge eventually only partially granted NCsoft’s motion to dismiss.

Roosa wrote:

The Court determined that the User Agreement contained a valid “choice of law” provision stating that Texas law would govern the interpretation of the contract. However, the Court then ruled that both Texas and Hawaii law did not permit people to waive in advance their ability to make gross negligence claims. The plaintiff's remaining negligence claims survived as well.

The claims based on gross negligence remained viable for the full range of tort damages, including punitive damages, whereas the straight-up negligence-based claims would be subject to the contractually agreed on limitation on damages.

This is significant, according to Roosa, because the gross negligence claim survived, but also because “having the right to sue for “gross negligence” is the functional equivalent of having the right to sue for straight-up negligence as well—thus radically broadening the scope of claims that (according to the court) cannot be waived in a User Agreement.”

The unfolding events in the Smallwood case caused Roosa to proclaim:

The Smallwood decision, if it stands, may achieve some lasting significance in the software license wars.

A Wall Street Journal article on the subject answered Roosa’s above proclamation with the response, “Let's hope not. Because a new opportunity for parasitic litigation isn't exactly the way to boost technological progress.”

If Smallwood’s lawsuit was eventually tossed, the WSJ author wrote:

And a good thing that would be, because discovering some newly elastic definition of injury, combined with an expanded concept of "gross negligence" would be just the stuff to spur a new tortious gold rush. Do we want the tech biz focused on innovation or litigation?

The Journal writer also took an unnecessary potshot at gamers. Smallwood’s claims of being “unable to function independently” and suffering from "distress and depression” caused the author write:

Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado.

Jerk.


Comments

Re: EULAs Inability to Stop Lineage II Lawsuit

Conflicted on this.  I don't think the developer should be held liable for his problem, but on the other hand I think EULA's frequently overreach and ask users to give up rights that they legally can't.

In a nutshell, I think the judge made the right call at THIS step in the case; that EULA was illegal -- but I still hope the case ultimately gets decided in NCsoft's favor.

Re: EULAs Inability to Stop Lineage II Lawsuit

Hehe, his last name is Smallwood...

Re: EULAs Inability to Stop Lineage II Lawsuit

"Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado."

If this is the case, then video games are in-fact addictive, and we should sue all developers and publishers of video games for addicting us to this terrible hobby.

Just indicating the flawed logic of the Wall Street Journal editor. Though I suppose this doesn't differ from the condition of the average newspaper editor.

Re: EULAs Inability to Stop Lineage II Lawsuit

You forgot sueing authors and book publishers because I'm addicted to reading. After all anything that brings pleasure is potentially addicting.

Hunting the shadows of the troubled dreams.

Hunting the shadows of the troubled dreams.

Re: EULAs Inability to Stop Lineage II Lawsuit

I'm not sure how I feel about this news. While on one hand I think many EULAs are a bit... nuts, and should be limited, on the other hand I think this lawsuit is BS and I don't want it to make any progress at all.

Re: EULAs Inability to Stop Lineage II Lawsuit

Does NCSoft have to loose for this ruling to stand?

my vanity is justified

my vanity is justified

Re: EULAs Inability to Stop Lineage II Lawsuit

This was on a motion to dismiss the case outright, and the ruling means that the trial goes forward. NCSoft could very well win the resulting trial, but this ruling would still stand and can serve to establish precedent in other cases.

In fact, the only way the ruling would be challenged, is if NCSoft were to lose the resulting trial, and then challenge the motion to dismiss on appeal. If NCSoft prevails at trial, no one is going to care how they got there, and the motion ruling will therefore survive as a precedent.

So I'm kinda hoping NCSoft wins the resulting case. Besides, I don't want to see a legal ruling that says MMOs are addictive...

 

Re: EULAs Inability to Stop Lineage II Lawsuit

Seconded.  The idea that you can sue someone because you're mentally ill and as a result became addicted to their product (if we even assume video game addiction is valid at all) is scary.

"I was always feeling anxious but this tea calmed me down.  It got so I couldn't function without it.  I always had to have a mug in my hand.  I lost my life to that damned tea!"  (Agreed it's extreme, but that's kind of the point.)

===============

Chris Kimberley

===============

Chris Kimberley

Re: EULAs Inability to Stop Lineage II Lawsuit

I love that giant bullshit assumption by the WSJ that any time and money a business saves by not litigating will automatically be used to create more useful innovations consumers can use.  That's simply not how businesses operate in the real world.

my vanity is justified

my vanity is justified

Re: EULAs Inability to Stop Lineage II Lawsuit

It's the WSJ, what did you expect? Their editorial department was worthless even before the Bancrofts sold it to Rupert Murdoch. (Although, to be fair, the Bancroft-era WSJ was a hell of a lot better at keeping news and editorial seperate than anything with the Fox name on it.)

Re: EULAs Inability to Stop Lineage II Lawsuit

Any money the business saves goes into the pockets of the CEOs.

 
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E. Zachary KnightPapa, Of course thre is. That has now become a permanent part of the EULA boilerplate template.07/29/2015 - 12:56pm
Papa MidnightIn case anyone is interested, there is a clause written into Section 10 of Windows 10's EULA that provides for a Class Action Waiver, and restricts the user to Binding Arbitration.07/29/2015 - 11:15am
TechnogeekNo, that folder is what gets used for the upgrade process. I already had the upgrade go through on my notebook.07/29/2015 - 10:35am
Andrew EisenMatt - And AGAIN, you keep saying "accountable." What exactly does that mean? How is Gamasutra not accounting for the editorial it published? How is it not accountable to its readership (which, AGAIN, is primarily game industry folk, not gamers)?07/29/2015 - 10:10am
james_fudgeThat's the clean install, for anyone asking07/29/2015 - 9:23am
TechnogeekAlso, it's the upgrade that's available for installation now. You might need to forcibly initiate the Windows Update process before it'll start downloading, though. (If there's a C:\$Windows.~BT folder on your computer, then you're in luck.)07/29/2015 - 8:46am
TechnogeekAdmittedly there's more room to push for an advertiser boycott when you get into opinion content versus pure news, but keep in mind that reviews are opinion content as well.07/29/2015 - 8:46am
TechnogeekMatts: There's a difference between "this person regularly says extremely terrible stuff" and "I don't like the phrasing used in this one specific editorial".07/29/2015 - 8:45am
MattsworknameWait, is that for the upgrade or the clean install only? cause I was gonna do the upgrade07/29/2015 - 8:32am
james_fudgehttps://www.microsoft.com/en-us/software-download/windows1007/29/2015 - 8:30am
PHX Corp@Wilson, I'm still waiting for My upgrade notice aswell07/29/2015 - 7:57am
MattsworknameWilson: how? Im still waiting for my upgrade notice07/29/2015 - 3:44am
Matthew WilsonI updated to a clean instill of windows 10.07/29/2015 - 2:36am
Mattsworknameargue that it's wrong, but then please admit it's wrong on ALL Fronts07/29/2015 - 2:06am
MattsworknameTechnoGeek: It's actually NOT, but it is a method used all across the specturm. See Rush limbaugh, MSNBC, Shawn hannity, etc etc, how many compagns have been brought up to try and shut them down by going after there advertisers. It's fine if you wanna07/29/2015 - 2:05am
Mattsworknamediscussed, while not what I liked and not the methods I wanted to see used, were , in a sense, the effort of thsoe game consuming masses to hold what they felt was supposed to be there press accountable for what many of them felt was Betrayal07/29/2015 - 2:03am
MattsworknameAs we say, the gamers are dead article set of a firestorm among the game consuming populace, who, ideally, were the intended audiance for sites like Kotaku, Polygon, Et all. As such, the turn about on them and the attacking of them, via the metods07/29/2015 - 2:03am
MattsworknameAndrew: Thats kind fo the issue at hand, Accountable is a matter of context. For a media group, it means accountable to its reader. to a goverment, to it's voters and tax payer, to a company, to it's share holders.07/29/2015 - 2:02am
Andrew EisenAnd again, you keep saying "accountable." What exactly does that mean? How is Gamasutra not accounting for the editorial it published?07/28/2015 - 11:47pm
Andrew EisenMatt - I disagree with your 9:12 and 9:16 comment. There are myriad ways to address content you don't like. And they're far easier to execute in the online space.07/28/2015 - 11:47pm
 

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