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The Basics of EULAs 522

Posted by michael
from the read-before-you-click dept.
Garthilk writes "Blizzard recently made a bit of press when they announced that they would be actively enforcing their End User License agreement and prohibit the third party sale of game items and characters. Many people don't believe these clickthrough EULAs to be enforceable contracts. Thankfully Don Shelkey from the Corporate Finance and Technology section of the law firm Buchanan Ingersoll stops by to give us the low down. Mind you he is speaking on his own behalf and not on behalf any of his clients."
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The Basics of EULAs

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  • by chris09876 (643289) on Thursday January 20, 2005 @10:32AM (#11419146)
    We all remember what happened with Diablo 1 and the many godly plate of whales ;-) It will be interesting to see where this goes in the future. They say it's enforcable, but I am curious to see how enforceable it really is. It could have consequences for the entire MMORPG industry...
  • by DarthBart (640519) on Thursday January 20, 2005 @10:32AM (#11419151)
    It really doesn't matter if click-through is binding or not. Most companies just play the "Right or wrong, we'll sue your ass into the ground and bankrupt you on court costs."

    Who does an 800 pound gorilla sue? Anyone he wants.
    • by Maestro4k (707634) on Thursday January 20, 2005 @10:56AM (#11419390) Journal
      • It really doesn't matter if click-through is binding or not. Most companies just play the "Right or wrong, we'll sue your ass into the ground and bankrupt you on court costs."

        Who does an 800 pound gorilla sue? Anyone he wants.

      Depends on the state, but in some of them they can get hit with fines in addition to having to pay the defendants full legal costs for filing a SLAPP lawsuit. (Strategic Lawsuit Against Public Participation) Mattel found this out the hard way when they sued that artist using Barbie dolls in his art. Mattel didn't like the way he used them and sued. A judge threw it out, fined Mattel a large amount and made them pay the guy's full legal fees.

      Sadly not all states have anti-SLAPP laws on the books, they all should.

      • A judge threw it out, fined Mattel a large amount and made them pay the guy's full legal fees.

        Which is all fine and dandy if you can get your lawyers to work for free until the judgement. Otherwise Mattel didnt pay the legal fees they just gave him back what he had already paid. This, of course, relies on you having the money to mount a defence and take the risk of waving goodbye to it if you lose.
    • I got news for ya, most of the 'people' doing this are not individuals but companies... Often companies in foreign countries, with US 'contact points'...

      I played Lineage 2 for quite awhile and you really couldn't help encountering these grous of (mostly) chinese people with US contact points (web and a few personel for delivery purposes).

      Now I bring this up for two reasons:
      A) They make quite enough money that the could defend themselves in court just fine.
      B) They will never go to court because they don't
  • As much as we hate them, EULAs are necessary. EULAs also include things like your distribution rights, and (I assume) that you can't hack.

    'cos we all know how fucking annoying those hackers are ;)

    Doesn't matter...I've only come across one since I started playing CS:S...and I awped him...that reminds me: LENT, if you are out there, please report to your nearest execution center ;)
    • The main EULA that I have a problem with at the moment is on Steam. If you buy HL2, the EULA forbids you from selling your Steam account, and thus this prevents you from selling HL2. You can see this for yourself here [google.co.uk]. (I'm using a Google cache link here because the Steam forums are down - coincidentally they went down at a time when some people are having problems updating HL2).

      Incidentally, if you look at point 2, you will see that Valve claim that all Steam accounts sold on eBay are "either Stolen accou

      • IIRC (and IANAL), one of the few holes punched in EULA's is that they *can't* prevent you from selling your copy of the software, provided you destroy all local copies of the code, documentation, etc. How this applies to a "service" like Steam, I'm not sure.

        OTOH, if Valve sued you for selling your legally purchased copy, I wonder if you could counter-sue for libel... after all, it is damaging to your reputation to have people claim you are trafficing in stolen goods or credit cards.
    • >As much as we hate them, EULAs are necessary.
      >EULAs also include things like your distribution
      >rights, and (I assume) that you can't hack.

      No, EULA are not at all nessecary. Tell me what part of a typical EULA is nessecary (from a consumers/buyers point of view)? Obviously as a seller you would be happy the more power you can have but that does not make them something nessecary.

      If you look at distribution, what distribution? A typical buyer won't need any extra distribution rights. "Hacks" would
    • . EULAs also include things like your distribution rights,

      EULAs don't give rights, they remove them.

      I see EULA I don't waste my time reading it and just assume:

      I have no rigths other than to perhaps use the program at their mercy

      I cannot copy or distribute

      They are not responsible for anything including back doors or unlicensed material they include

      You cannot attempt to hold them responsible for anything

      If you open the product at all, your money is not refundable yet you have to open it to read th

      • I didn't say I like them as they are, but they are necessary, at least in some form.
        • I didn't say I like them as they are, but they are necessary, at least in some form.

          Again, why? Existing copyright law is sufficient to prevent you from copying and distributing software. Most EULAs go way beyond that and attempt to remove your fair use and first sale rights. I certainly understand why a publisher would want to do that, but it's by no means necessary.
  • by fishdan (569872) * on Thursday January 20, 2005 @10:34AM (#11419167) Homepage Journal
    From the article:
    Companies that use EULAs must make sure they are "reasonable." ....if you call a lawyer right now and say, are EULAs enforceable, he will likely get into the above and his final answer would be "it depends, but in some cases the only way to tell is to go to court."

    And the fact is, most players will not want to go to court, and so once again fair use is in a precarious position.

    What I can't understand from this is WHY Blizzard would be opposed to this? If a mini-economy were to open up around your game, isn't that a good thing? They could get into the act themselves -- selling magic items and high level characters to the highest bidder? Hasn't anyone learned ANYTHING from the file swapping issues [theregister.co.uk], Hacked satellite boxes [silverbullet4u.com] or even drug interdiction [drugsense.org]? You can't stop people from doing what they want, and by picking battles of silly stuff like this weakens the arguments in legitimate cases where people actually are injured.

    If there is a market for WoW stuff, then people will buy and sell it. p>Alot of times you'll here the legal phrase "Qui Bono" which literally means "Who benefits." It's used in the context of trying to establish who really ganis from certain actions. In litigation like this, I think the question that needs to be asked is "Qui Incolmunis" -- or, who is injured. In this case, where (as far as I can tell) no one is injured, there should be no litigation.

    I have read the players [slashdot.org] complaining [slashdot.org] about the constant "buy now" things they see online. I don't think that legislation is the right way to solve a social problem. Why not make all artifacts have a permanent lifespan with the character who first posesses them, and only 24 hours after that? You could make items/characters untradable, but people don't want that. They just want them to be not tradable for money. Unfortunately, the way the world is, money is a universally accepted currency that can be used to acquire things of value. Driving the market underground is exactly the same as an ostrich sticking it's head undergound -- you can't see the problem anymore, but it will still be there.

    • What I can't understand from this is WHY Blizzard would be opposed to this? If a mini-economy were to open up around your game, isn't that a good thing? They could get into the act themselves -- selling magic items and high level characters to the highest bidder? Hasn't anyone learned ANYTHING from the file swapping issues, Hacked satellite boxes or even drug interdiction? You can't stop people from doing what they want, and by picking battles of silly stuff like this weakens the arguments in legitimate cas
      • And this is how all secondary markets work. As an example, look at trading cards -- sports or otherwise. There is a huge market in these things, but I have not once heard Tops or Wizards of the Coast getting sued becuase of a joker ripping them off with a fake rookie card or Mox.

        • WotC or Tops dont have any power over the cards once they are sold, Blizzard has powers after the fact and because of this they may become liable or suffer bad press because of a fraudulant sale. Thats the difference.
      • by fishdan (569872) * on Thursday January 20, 2005 @10:48AM (#11419305) Homepage Journal
        That's an interesting take -- and if that's what blizzard thinks then they should voice those opinions, but I don't think someone who buys a used car feels like they have a recourse with Ford if the car is not under warranty. Why would someone who buys something on ebay think that Blizzard is involved in anyway with the transaction?

        Mind you, I'm sure people still complain to Blizzard about that, but that will happen even without this EULA.

        Now, if the point of the EULA is that they can say "We don't support stuff that you buy somewhere else" does putting that in the EULA really make it any more so? Or does it weaken the idea of a real end users license agreement because now we are putting frivolous stuff in the EULA.

      • by arkanes (521690) <arkanes&gmail,com> on Thursday January 20, 2005 @11:06AM (#11419494) Homepage
        Because Blizzard views it's job not only as selling a product but as providing a game. Blizzard doesn't think that a secondary (real-money) market in game characters and items is a good thing for the gameplay of WoW. Think about your basic tabletop RPG and wonder if it would really be better if you could by stuff by slipping the GM a fiver.

        There's all sorts of "let me do what I want" people who say they SHOULD be able to do this. That doesn't really matter - Blizzard doesn't think a secondary market is good for WoW gameplay. Simple as that. And since MMORPG EULAs are about as legally viable as they get (straightforward terms of use for a service, tons of legal precedent), I don't think they'll have much of a problem pushing it.

    • by Kaboom13 (235759) <kaboom108@nOSPAM.bellsouth.net> on Thursday January 20, 2005 @10:48AM (#11419301)
      Blizzard is fighting this because A. It causes massive in-game inflation. As soon as there is a market, ebayers will begin farming money 24/7, often using bots and exploits. They will then sell this money to new players who suddenly have a massive amount of money out of proportion to their level. These new players are going to want the best equipment, of which there is a limited amount by design, and will be willing to pay for it. The end result is prices rapidly reach a point where your average player can not afford anything without buying money on eBay. This has already occured in many MMORPG's, particulary Star Wars Galaxies. B. If Blizzard accepts that in-game items have real world value, and there is a server crash causing you to lose items, you can now sue them over it. Blizzard does not want items to have value beyond their usefulness in game because no judge is gonna award damaged because it will take you an extra hour to get to level 60 cause Blizzard lost your fancy item. If you can sue Blizzard because you could have sold that item for $50 on eBay, thats a different matter.
      • by Pofy (471469)
        >B. If Blizzard accepts that in-game items have
        >real world value, and there is a server crash
        >causing you to lose items, you can now sue them
        >over it.

        Blizzard doesn't have to accept or not. If two people make some deal, what would Blizzard have to do with it? Just because you value something doesn't mean Blizzard have to compensate it for you!
        • by nlinecomputers (602059) on Thursday January 20, 2005 @11:37AM (#11419859)
          If two people make some deal, what would Blizzard have to do with it?

          Nothing except that they are the ones holding the item for you. Think of it like a valet parking garage. You give your car over to the valet dude to park your car and he crashes it. He doesn't care that you just sold the car but he is now responsible for the loss of the car. So he has insurance to protect himself should he damage a car that he is parking.

          Blizzard is afraid that they may be blamed for any faults that happen while they are "valeting"/housing your things.

          It means that they are going to have to be insured for losses(if the server crashes) as selling the "items" on ebay is proof of value. If they can stop that from occurring or make it illegal they avoid the legal necessity of liability insurance.

    • What I can't understand from this is WHY Blizzard would be opposed to this?


      Actually, they explain on the WoW website. They think that it will be damaging to the in-game economy and overall experience of players. If someone with a bunch of money to burn goes out and buys a full-pimp level 60 character, then starts stomping on newbies, it takes away some of the fun. People will complain (they already do) and be turned off by the game. There is already an in-game auction house where people can auction
    • I doubt Blizzard is worried about the individual player, their concern is more for companies that do this for profit. As odd as it may seem these companies apparently hire chinese labour specifically to farm and sell for profit.

      Individual players would have little to no effect on the economy, bots and characters on every server farming 24/7 do.

    • What I can't understand from this is WHY Blizzard would be opposed to this?

      The reason they'd be opposed to it is that when you play a MMORPG for fun, you talk to other players, you go fight monsters, you go do quests, and, sometimes, you might grind on a certain population of monsters in a certain area so you can get a certain item (or gold) that they drop.

      When you're only playing the game to make in-game money that you can sell on eBay, you don't talk to other players and you don't do fun quests. You
  • by Kartoch (38254) on Thursday January 20, 2005 @10:36AM (#11419190) Homepage
    The standard disclaimer applies that this is not legal advice and is only offered for your viewing pleasure.

    The law of contracts is the law of promises. Long before computers were invented, people were making promises. At some point, the law had to designate which promises it would enforce and which promises it would let slide. The former are called "contracts." That is, a contract is simply a legally enforceable promise.

    To have a contract, you have to meet certain elements. I refer to the terminology of my professor and renown expert, John E. Murray, Jr., author of Murray on Contracts, a first year law student's bible on the matter. To have a contract, you must have 1) an offer, 2) an acceptance and 3) a validation device, most often, consideration.

    The offer and acceptance parts are quite simple the vast majority of the time. Usually one party says "I will provide you with X if you provide me with Y," which qualifies as an offer. The other party says "I agree" and the deal is done. Consideration is sometimes a little bit tricky, but in order for a contract to be valid, there must be a bargained for exchange. Lack of consideration is why gift promises, even in writing, are not enforced. I say "I agree to give you $100 because I love you." We put it in writing signed by 10 nuns, each of which testify that I fully intended to give you $100. That is not a contract because there was no bargained for exchange of value. Promises to make gifts are simply not a type of promise that the law chooses to enforce.

    Ok, so lets look at the typical EULA to see if it's a contract. The gaming company makes you and offer to play the game. In exchange for playing the game, you must agree to pay a fee each month and follow the EULA. That is the offer. You accept the offer by clicking "I Agree" when you log in. You technically do not need to do it each time that you log in, but most companies do this simply to remind the consumer that it is bound by the agreement (and to provide notice of any modifications). The promise is supported by consideration, namely the company permits you access to the service, and you pay the fees.

    Tada, contract! So, what is all the fuss about? Well, you see there is good reason for confusion.

    When software companies first started, it was easy. They had a product that they made. They wanted to license it to someone else to use, so they drew up an agreement, and said "sign on the dotted line." Those were the early EULAs and they were no doubt enforceable. But then software companies wanted to make its product easy to buy, so they threw it in a shiny box and popped it on a shelf. They certainly couldn't ask the clerk behind the counter to execute contracts for them, so they simply tucked it inside the shrink wrap and included "acceptance language" stating "by opening this box, you agree to these terms."

    Wow, now wait a minute here?!? There is something messed up with the timing of the whole thing. It doesn't jive with standard contract formation process. So, I pay the fee, get the thing that I paid for home, open the box, and accept the offer before I see it? Hmm. Well that didn't make much sense, and judges weren't really familiar with how this whole thing worked, so cases came down that said these types of agreements, shrink-wrap "EULAs," are not enforceable. They aren't enforceable because they do not meet the elements of a contract.

    But wait again! Some smart guy decides "this is great" and he goes and buys a piece of software that contains something like a telephone directory of the entire United States. He rips the contents off the CD and makes his own CD that does the same thing, and competes with the original company. The original company says "we will see about that" and the ProCD case is born. In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions. Later cases came out, however that said EULAs are a special kind of c
    • 1. Find something remotely related to P2P, DMCA, and EULA
      2. Copy the entire text of the article without attribution
      3. Watch the mod points come in
    • ...it did a pretty good job of showing examples of other cases where you order something, but you do not get the full terms until later. A typical example was ordering travel tickets by phone. There's a huge list of travel conditions, but you don't get all of them quoted to you over the phone. You're expected to know "standard" terms for travel.

      Another example quoted was purchasing concert tickets. The terms of the concert may be no cameras, and it is enforcable. You agree to behave after the rules of the
  • EULA Disclosure (Score:5, Insightful)

    by Verveonica (839966) on Thursday January 20, 2005 @10:36AM (#11419194)
    The problem with EULAs is once you have purchased the product, say a game and opened the box (unreturnable at this point) you are exposed and forced, lest you forego the purchase price of your game/app/whatever lest you click on the little "I agree" box. It's a sort of blackmail. The vendor does not make the EULA available prior to purchase and "read it on the web" is not practical. Too much effort on behalf of the consumer, and conveniently not enough on behalf of the manufacturer/vendor.

    While this is not the case all of the time, it is most often the case.
    • Re:EULA Disclosure (Score:5, Interesting)

      by slavemowgli (585321) on Thursday January 20, 2005 @10:54AM (#11419374) Homepage
      True, but there's another issue that the article fails to address. IANAL, just someone who believes he's got a reasonable amount of common sense, but why do I have to enter a contract with the software company who made a product (whether it's a game or something else) to use that product after I purchased it in a store, anyway? Didn't I already acquire the right to use that software when I payed for it in store? If you take Photoshop, for example, which actually costs a couple of hundreds of dollars, I really would argue that by paying those, you bought more than a cardboard box, some CDs and a printed manual - you bought the right to use Photoshop. Adobe granted the store to sell that right to one person along with the box, and now the store is selling that right to me. Again, IANAL, but that's really what I think it's like. If I buy a book, for example, I don't have to enter a contract with the publisher to be allowed to read it, either, do I? I already got that right when I purchased the book, because what I paid for is more than just a stack of paper bound together. It's the right to actually utilize the contents (reading it in case of a book, and use it in case of software).
    • Re:EULA Disclosure (Score:3, Insightful)

      by PornMaster (749461)
      I think that the attorney in the article skipped around EULAs and this very valid point, to get to the terms of service part of the online service.

      With the boxed game, you pay before you get to see the license.

      If we ignore the fact that before you get to log on to the service, you've already paid for the game - at least with the online service, you get to see the agreement before you pay.

      I think the article was quite lacking in dealing with the differences in those two cases.
    • you should carefully read the following end user license agreement before installing this software program. by installing, copying, or otherwise using the software program, you agree to be bound by the terms of this agreement. if you do not agree to the terms of this agreement, promptly return the unused software program to the place of purchase, or contact blizzard customer service at (800) 592-5499 for a

      full refund of the purchase price within 30 days of the original purchase.

      World of Warcraft EULA ht [worldofwarcraft.com]

    • Re:EULA Disclosure (Score:2, Informative)

      by ssand (702570)
      Some companies actually place their EULAs on the web, allowing you to read prior to purchasing. As stated, Blizzard offers a full refund if you do not accept the EULA. Finally, I'm not sure if it happens with WOW, but some online games I've seen state something similar to "By logging onto our server, you agree to the EULA." While you have paid for the game, you are using their servers, so you have to abide by those terms.
    • Re:EULA Disclosure (Score:3, Insightful)

      by guru42101 (851700)
      Another RTFA. There is basically a common understanding thing among EULA's. We all know that what the EULA is going to say and can assume it is going to be in there. Therefor, we knew for the most part what the terms of the EULA was before we bought the game.

      Also, most software companies will take a return and credit at the manufacture level if you do not agree w/ the EULA, this has been done w/ Microsoft on several occasions. So, if you don't agree w/ an MMORPG EULA then contact the manufacture and
  • by Anonymous Coward
    I just have my kid brother click "ok" or tear open the envelope. Since he's not 18, the contract isn't enforceable in most states. Of course, game makers could get around this by making us go through the EULA every time we play ("playing this game constitutes your agreement to the following"). Also, while IANAL, I understand that many states consider a contract signed while you are intoxicated to be unenforcable. So, have some beer with your EULA. Since there is a lack of legal precedents regarding whe
    • I just have my kid brother click "ok" or tear open the envelope. Since he's not 18, the contract isn't enforceable in most states.

      Yes, it is enforceable. Having someone else act on your behalf, regardless of age, is the same as you doing it yourself. This is why if you hire a hitman to commit murder, you are guilty of murder too.

      Also, while IANAL, I understand that many states consider a contract signed while you are intoxicated to be unenforcable.

      Contracts signed under duress are null and void. I ha

  • Reasonable? (Score:5, Funny)

    by It doesn't come easy (695416) * on Thursday January 20, 2005 @10:38AM (#11419221) Journal
    Companies that use EULAs must make sure they are "reasonable."

    Examples of typical EULA language (paraphrased):
    "We can install anything we like on your computer"
    "We don't guarantee the program will even run, much less do what we said it will do."
    "We are not liable for anything, even if our software makes your company's profits implode"
    "We can collect any data we want and sell it for a profit"
    "We will charge you to fix any problem found in our software, assuming we choose to fix the problem."

    Sound's reasonable to me...

    • Re:Reasonable? (Score:5, Informative)

      by jandrese (485) * <kensama@vt.edu> on Thursday January 20, 2005 @11:04AM (#11419476) Homepage Journal
      Don't forget:

      "You are not allowed to publish anything negative about the software on any medium" (Especially on reviewer copies)
      "We don't care if the software causes damage to your computer hardware"
      "We can revoke your right to run this software at any time for any reason without refund"
      "You may not give this software to anybody else, even if you uninstall it from your machine and everything"
      "Don't even think about installing it on two machines in your house. You need to buy a second copy buddy--it doesn't matter that you only run it on one machine at a time!"

      and so on.
      • ...or:

        "We can also change anything in the contract at any time, basically making anything stated in it pointless since we just change it to suit whatever we want"

        This typically is amended with:

        "We won't even tell you when we change it, you should spend half an hour (each time you start the program) comparing the old text with the new to spot and keep yourself updated with changes"
      • I've always liked the way EULA's essentially say:

        "This piece of crap software isn't guaranteed to do anything useful, in fact, it may even destroy things you previously owned, for which destruction we are not liable, because we warned you it was both worthless and dangerous

        "But...

        "If you should DARE to copy this Priceless Jewel of a program, for any reason at all, then we will hound you to the end of the world or until the end of time, whichever comes last"

    • Re:Reasonable? (Score:2, Insightful)

      by rgoldste (213339)
      Some time ago, courts had doubts about standard contracts, that is, contracts that a company imposed on all customers that the customer had no chance of changing. Some of these contracts were held unenforcable, because the customer's bargaining power was so inferior to the company's. (cf. Henningsen v. Bloomfield Motors; Williams v. Walker-Thomas Furniture Co., )

      The courts found there was no way these contracts were made by two equal, free parties, which is a cornerstone of a valid contract. Also, many con
  • by Kosi (589267) on Thursday January 20, 2005 @10:39AM (#11419230)
    Many people don't believe these clickthrough EULAs to be enforceable contracts.

    And in Germany they are 100 percent correct. After all, a contract requires a clear volition from all parties. And a click on a virtual button or opening the shrinkwrap is not sufficient for that, as you can't even tell who made the click (maybe my cat stepped over the keyboard while I was out of the room).
    • by Flyboy Connor (741764) on Thursday January 20, 2005 @12:17PM (#11420321)
      maybe my cat stepped over the keyboard while I was out of the room

      I usually do that. I drop the cat next to the keyboard and walk out, then come in again after a few minutes. About half the time, the cat has hit enough keys so that the game is started past the EULA. The other times, I usually have to restart the computer. Though there was this one time when the cat had closed the game, open up my word-processor, and had typed in the first scene of Hamlet.

  • by British (51765) <british1500@gmail.com> on Thursday January 20, 2005 @10:43AM (#11419259) Homepage Journal
    ....the most impersonal form of communication ever to have been devised by mankind. It doesn't talk to you, it barks at you.
  • by NaugaHunter (639364) on Thursday January 20, 2005 @10:43AM (#11419262)
    It's the Terms of Service you agree to online when you give them a credit card number and say 'Yes, I Agree' in order to play. Whatever questionable status EULA's may have, if this isn't enforceable then no online contract is.

    Read it yourself. [worldofwarcraft.com]

    If you don't agree to that, then you don't click through, don't create an account, and do something else. This is a valid, 2-party contract. Deal with it.
  • by tdhillman (839276) * on Thursday January 20, 2005 @10:52AM (#11419350)
    We can kvetch all we want about EULAs, but the big question here revolves around ethics.

    On the most basic level, I think we all perceive that just compensation for work is wholly reasonable.

    Yes, I've used software that I didn't have legal right to, but I understood that it isn't really kosher.

    The only person capable of stopping anyone from doing anything is the individual- to my mind, EULAs are general reminders that make you consider the nature of what you are doing in the first place.
    • The only person capable of stopping anyone from doing anything is the individual- to my mind, EULAs are general reminders that make you consider the nature of what you are doing in the first place.
      No, that's not entirely correct. EULAs are the reminder of how the software industry thinks about copyright. They aren't governed by ethical motives, but by financieal motives.

      Copyright is the right to copy and distribute a work. Once, as the copyrightholder, you've distributed it, you lost your rights to that c
  • by Speare (84249) on Thursday January 20, 2005 @10:55AM (#11419382) Homepage Journal

    If you're an online game implementor, you know that people will want to trade items. You know it, because you're not the first game out there, you're the fifteenth. You're the fiftieth. You can see that people want to trade items.

    Sure, the arguments run in two major veins: it's not fair to the game for people to shortcut their character development, and it's not fair to the users, because sales fraud is rampant.

    If you gripe about players trading items, you're pissing into the hurricane. Even if it's against all the rules, people will be trading items. And what's worse, people will be offering sales and not following through, so other people will scream about fraud. You're in a no-win situation: people who follow the "rules" are unhappy and people who try to get better game goods are unhappy.

    Unhappy customers are not a good thing for any subscriber-oriented product. Unhappy customers who are highly connected, organized, and communicative are a major threat to a subscriber-oriented product.

    So why make them unhappy unnecessarily?

    Implement an escrow mechanism into the game service.

    If a player wants to sell a +20 Sword of Wounding to another player (even on another server/shard/instance/cluster/whatever), let them. Have them put the item into a secure locker-style location in the game world. This takes the item out of the control of the player, to completely remove the ability to defraud. The item is listed up for sale, either to a specific customer, to a guild or alliance, or to anyone. Real cash will buy that item.

    Now, where does the cash go? Most of it goes to the selling party. That's why they wanted to sell it in the first place. Whether the cash is presented as future service credits, or a company check, it doesn't matter. Games may differ on the finer points, but one thing is clear.

    A cut of the escrow money goes to the game producer.

    That's right: if you own the escrow, YOU earn money when YOUR players trade goods. You're the marketplace. It pays for all the effort you made to implement the secure lockers. It pays for the customer service aspect of managing the transactions. More transactions will go through without complaint, and you are in a position to ensure that.

    You can't control eBay. You can't control the gentleman's handshake at the pub. You can control the secure locker mechanism that's hosted on your own servers. So earn some money from it.

    What about that other line of reasoning, the thing about being fair to the players? What's more fair than instantiating a single set of rules, by which everyone has access? Many people don't trade because of the fraud, but they'll complain about how it's unfair that other people do trade. Others complain that if they don't trade, they can't be the best in the game. Well, it's not about being the best in the game, it's about being the best you can be.

    When I was a big game player, the game I played had one simple warning to those who complain about fairness and balance and competition. There will ALWAYS be someone who is stronger, faster, better-equipped, higher-leveled, and prettier than you are. Get over it. It's a game, and the best way to have fun is to skip the notion that you'll be the biggest and baddest in the game. Just be the biggest and baddest you can be. If you don't want to trade, then don't. But if you want to trade, do it securely.

  • How can they call this "terms of service" when they deny in it every garanty that it will function properly or that you might ask anything about any service?
    How can any of them (ToS) be said "reasonable"?

    note that Blizzard Entertainment shall not have any liability for the loss of any Game Data for any reason whatsoever

    H. You may not be able to access World of Warcraft whenever you want, and there may be extended periods of time where you cannot access World of Warcraft

    Those are too vague to be reas
  • By reading this ransom note, you agree to leave $100,000,000 in unmarked bills of small denomination in a shopping bag which you will place in a garbage can at the Starbucks at the corner of Fifth and Main if you ever want to see your baby again. You also hearby agree not to call the police, hire private detectives, or bounty hunters, or press criminal charges, or file a civil lawsuit against the Kidnappers.
  • In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions.

    I have been arguing the above statement for months with people on /. I have been told I was wrong, stupid, etc. When I saw this quote my heart soared. The law can be such a wonderful thing - especially when it utlizes "reasonable expectations" which EULA's (IMHO) are.
  • I'm tired of all these clickthru EULAs that nobody reads. They dilute the entire possibility of ever getting a click to be legally binding, though that would reduce a lot of legal (and other transactional) costs when the two parties actually do agree, and want to be bound legally, but are connected only by email or webpage. If EULA terms were standardized (though there might be a lot of slightly different terms), and preagreed in principle, then stored on your client machine, they would be a lot more manage
  • This is actually pretty easy to enforce... All they have to do is start banning accounts. Something like, ban accounts of people that radically change their billing info. Doesn't have to be that, but you get the idea.

    People will stop buying accounts if they think they'll end up losing money by buying an account that's about to be banned.
  • by Tx (96709) on Thursday January 20, 2005 @11:14AM (#11419595) Journal
    In the UK, the consumers statutory rights under the "Sale of Goods Act" and other laws are paramount, and can't be overridden by an EULA. If your country doesn't have such laws, it really should.

    These laws state (approximately) that:

    * Goods must have no defects, unless these defects are clearly described prior to sale

    * Goods must be fit for the purpose for which they are sold

    * Goods must be accurately described - i.e. no incorrect labelling on the packaging etc.
  • EULAs will come to a head when a spyware removal company is sued by a spyware maker for interfering with the EULA that allowed the spyware maker to put on the spyware in the first place, and said that the user was NOT allowed to remove it.

    The EULAs are already in there, it's just a matter of time before one of these companies gets the moxie to take them to court...

    And probably to the cleaners.
  • The article starts:
    • The standard disclaimer applies that this is not legal advice and is only offered for your viewing pleasure.
    Have I been duped ? I thought that I was going to get the full McKoy to find, once I had downloaded, it some EULA saying that it wasn't as I expected. Is Don Shelkey able to put this discaimer in after he enticed me with a promise of something that it turns out that he can't deliver ?
  • standard disclaimer (Score:3, Interesting)

    by Doc Ruby (173196) on Thursday January 20, 2005 @11:26AM (#11419726) Homepage Journal
    Lawyer Shelkey, of the Corporate Finance and Technology department of his law firm, says that, basically, EULAs are legally binding contracts. He ignores the major factor in the controversy: no one reads them before indicating they accept. It's like a contract a deaf person makes in sign language with an unsuspecting person, sealed with a handshake. Of course Shelkey doesn't bring that up. He represents coroprations, and his article is just a friendly warning on behalf of the interests that pay for his supper.

    He doesn't mention a single interest of the End User agreeing to these End User License Agreements. The closest he comes is in dealing with the "issue" of (threat posed by) "virtual profiteers" who ignore EULAs to steal the product and compete with the EULA issuer. How about when millions of us clickthru a long, complex EULA to use some simple, cheap SW, but then are confronted with demands from the licensor, based on borderline "reasonable" terms we unknowinly agreed? Since conventional wisdom holds that EULAs are unenforcable (for some good reasons, but defacto practice is strongest), millions of reasonable people ignore them, though they do "read anything they sign", as everyone knows to do. Shelkey's selfserving warning isn't the law. At least he's candid up front, stating that his article " is not legal advice and is only offered for your viewing pleasure". Just like the EULAs he knows and loves.
  • by nasor (690345) on Thursday January 20, 2005 @11:26AM (#11419728)
    There was almost no real useful information in this article. It basically amounted to "EULAs are enforceable, usually, so long as the conditions aren't outrageous." It doesn't answer any of the really hard questions about EULAs. What happens when someone who isn't old enough to enter into a legal contract (which is to say, probably half of everyone who plays these games) clicks through an EULA? What if I don't like the EULA, but the store/company doesn't want to give me my money back? What if I find a way to install and run the game without ever reading the EULA - am I still in violation of it, even though I never saw it or agreed to it? If I don't agree to the EULA, can their copyrights restrict my use of their software for private, non-commercial purposes?
  • Fundamentally OOP, XML, RDBMS are very different: RDBMS (relational databases) basically have no true classes, in that you can't inherit 1 table from another. XML can have class-like structures, but they are assigned to an entire document as a whole (through DTDs). OOP has true classes all the way.

    Today, these technologies are like oil, water and, well, something else- The next big advances in programming, I think, will come when people learn to make these ideas come together seamlessly- People will say th
  • On one side of the picture, Blizzard is trying to protect the quality of it's product. While they cannot prevent informal agreements between people, they do want to stop the Walmart style superstores (Yantis, etc.).

    See here is the problem with a secondary market that involves real cash: it simply reduces the illusion of the game. If you have ever played a P&P rpg this is akin to Metagaming. "My ring is worth $150". The game ceases to become a game for certain players and becomes a new marketplace
  • by NigelJohnstone (242811) on Thursday January 20, 2005 @11:36AM (#11419838)
    Nice summary, but contracts also requires the right to refuse and store sales are covered by doctrine of first sale. IANAL, however I have consulted one on this very issue.

    Right to refuse:
    If you're put in a position where a contract is offered but no option to refuse is given, or the refusal includes a penalty the contract is not enforceable. THEY MUST BE FREELY ENTERED INTO.

    So for example you buy a product, you get it home and it has some nasty POS EULA associates with it.

    You can: accept the nasty POS EULA.
    Or: Return at your own expense and time, and maybe even have to pay a restocking fee. I.e. you pay a penalty.

    The other point is the doctrine of first sale. When you sign up to an online gamer, you have not at that point bought the product, so are not protected by dofs.
    When you walk into a shop and buy it you are, the extract terms are foisted on you after.

  • by Midnight Thunder (17205) * on Thursday January 20, 2005 @11:37AM (#11419852) Homepage Journal
    The article makes a fair enough point, but now I have another one: how legal is a EULA that changes the terms of the EULA that you agreed to when you bought the product? For example how do you know that when you 'agree' each time you log into you MMORPG that the terms have not changed?

    My problem with EULAs is not so much their presence, but the complexity of the language in there is usually enough to scare most people off. I really feel that they need to be accompanied by a FAQ or short absrtract explaining the 'spirit' of the EULA.

  • Irrelevant (Score:3, Insightful)

    by Drachemorder (549870) <brandon@christiangamin g . org> on Thursday January 20, 2005 @11:44AM (#11419923) Homepage
    As far as I'm concerned, the legality of EULAs is mostly irrelevant to Blizzard's decision to crack down on people selling in-game items. The fact remains that whether or not the EULA is enforceable, whether or not the concept of intellectual property is valid, one must still connect to Blizzard's servers to play the game. Those servers are Blizzard's property by any measure. As such they are well within their rights to ban people from them for whatever reason they choose. It doesn't matter whether or not the EULA has anything to say about it. Even if the EULA were to be completely voided by a court ruling and the sale of the game defaulted to standard copyright law, Blizzard would still have the right to control access to a server which is their private property.

    There may be (and I daresay there are) good grounds for challenging the validity of EULAs, but this case really isn't one of them.

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