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The Courts Government News Your Rights Online

Selling Your (MMORPG) Soul 437

Posted by timothy from the what-about-free-markets dept.
Gnpatton writes: "Here is an article about the recent ruling in the Blacksnow/Mythic case. It talks about the EULA (End User Licence Agreement, that thing that you never read) and about how this case might affect the rest of the software industry, not just with game companies. From now on, you might just want to read the EULA before you click 'accept'."
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Selling Your (MMORPG) Soul More

Selling Your (MMORPG) Soul

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  • but you don't sell accounts (Score:3, Insightful)

    by blablablastuff ( 577458 ) on Tuesday June 11, 2002 @09:42PM (#3683378)
    just logins and passwords your password is your own property

  • Ouch. (Score:3, Insightful)

    by moyix ( 412254 ) on Tuesday June 11, 2002 @09:44PM (#3683383) Homepage
    An EULA held up in court, despite the fact that no one ever signed anything, and there were no witnesses... this sounds like a really bad ruling. My guess is that it will be appealed, and eventually struck down. Either way, I think this case is going to be big...

    • Re:Ouch. (Score:3, Interesting)

      by Erasmus Darwin ( 183180 )
      "An EULA held up in court, despite the fact that no one ever signed anything"

      It's more than just that, however. This is a case about Mythic asserting its right to control data on its own servers that're the indirect reflection of the user's interaction with the game.

      Personally, I think the simplest solution would be if Mythic had decided to just provide the person with the virtual data that he was so worried about. The catch, however, is that they'd cease hosting it on their servers. So the plaintiff would have a copy of his character data, but it would no longer be part of the game.

      • Blizzard tried this in the Diablo 2 days. You could have a char on their server, and a char on your PC. The way it panned out was that the people hacked the data files on their PC to get a mega-character. Therefore, the "User Hosted Char" games were boring. The files on the Blizzard servers were not hacked, so people had to work to reach level 99.

        You could try to keep a MD5 of the user's char on a server at compare at runtime. Then create a new MD5 at game exit. Of course, you'd have people hacking the data during the game. Not to mention how to handle game crashes.

        • Re:Ouch. (Score:5, Insightful)

          by Erasmus Darwin ( 183180 ) on Wednesday June 12, 2002 @01:28AM (#3684242)
          "You could try to keep a MD5 of the user's char on a server at compare at runtime."

          I think you misunderstood my point. Character data for the game world would continue to be hosted on the Mythic server. However, Mythic would send a copy of the savegame file for the plaintiff to him. They would then remove that savegame from the server.

          The result is that the plaintiff has a copy of his character's data (i.e. the information that is the basis of the lawsuit), but the character's data no longer exists on the Mythic server and thus no longer exists in the Mythic game world. The plaintiff would have all the bits that made up his or her character, but it'd be utterly worthless as said bits would no longer affect anything.

          The beauty of it is that it underscores the entire problem of the suit. The suit wasn't about knowing or copying certain data or even owning an exclusive copy of certain data, but rather about insisting that the certain data exist in a very specific place on Mythic-owned server. Since attempting to control someone else's server in that manner is somewhat ludicrous, the complain was disguished in the form of data ownership. But if that were the case, Mythic could merely hand over the data and wash its hands of the matter as I've explained above.

  • What about pre-installed software? (Score:4, Interesting)

    by grape jelly ( 193168 ) on Tuesday June 11, 2002 @09:45PM (#3683386)
    Of course, this doesn't apply to all pre-installed software. A number of programs that come now require you to agree to an EULA before you are allowed to use the program, but what about Windows or any software that is pre-installed that doesn't require you to do so? If the user never clicked 'Accept', can he/she still be bound to the EULA as if he/she had clicked it, merely by using the software?

    • Recent support fun... (Score:2, Interesting)

      by Anonymous Coward
      I tried getting support for my laptop and they said that I couldn't get any help unless I ran the OS that came with it, namely, Windows XP. So, how valid is that EULA when I HAVE to click "I accept" or effectively invalidate my warranty?
  • Hasn't there been a recent article [slashdot.org] about programs making you get rid of other programs such as Ad-Aware before being able to use them by hiding a clause in the EULA? That didn't really get through to me, but this time it will.

  • Huh? (Score:3, Funny)

    by delta407 ( 518868 ) <slashdot@nosPAm.lerfjhax.com> on Tuesday June 11, 2002 @09:46PM (#3683391) Homepage
    Doesn't everyone read the EULAs?

    • Re:Huh? (Score:4, Funny)

      by Anonymous Coward on Tuesday June 11, 2002 @10:00PM (#3683451)
      Heck, I didn't even read the article, can you give me the jist of it?
    • I read them. Actually, I print them, ammend them to read that the software is covered under the GPL, then sign it. Then I click YES.

      After all, If MS can make a change to an EULA, so can I.

  • That was one weak article (Score:3, Insightful)

    by Kuato ( 584814 ) on Tuesday June 11, 2002 @09:50PM (#3683409)
    I'm not sure how that article made it to Slashdot. That was one helluva weak article. It might have helped if it had some information other than 'bevaaare!'

  • Eh? (Score:3, Insightful)

    by MisterBlister ( 539957 ) on Tuesday June 11, 2002 @09:50PM (#3683410) Homepage
    Just because the Judge ruled that they do, in fact own all the 'virtual property' in the world (and why shouldn't they? its all just bits on the harddrive in their server) doesn't really say anything about the general applicability of EULAs. The time to start worrying is when some ridiculous clause of a EULA (Microsoft..Most P2P software) is broken and enforced, not when something that seems pretty much like common sense is enforced (regardless of whether it was mentioned in the EULA....)

  • read the eula? (Score:5, Interesting)

    by isbhod ( 556556 ) on Tuesday June 11, 2002 @09:53PM (#3683415)
    what if i don't agree and want my money back? do you think i could go up to best buy and say "hey man bought this game becasue it looked cool, but I don't agree to the EULA so can i have money back?" i'd be laughed out of the store. i say if a software co. want us to abid by their EULAS then they must print their EULAs in easy to read (for those that have poor eyesight) printing on the outside of the box, and we must agree to the EULA before we purchase software. OR they need to force stores that do not accept open software returns to start taking returns. Either way the software co. loses, either giveup precious advertising space on their software package, or try and do battle with the stores that pimp their software out.

    • Re:read the eula? (Score:4, Interesting)

      by ryepup ( 522994 ) on Wednesday June 12, 2002 @12:15AM (#3683986) Homepage
      maybe thats what people need to do, is going in groups to best buy, compusa, wherever you get software, buy it, refuse the EULA, and return it as a group. More than one person returning it can't be laughed out of the store. The more hassle it is for the local vendors, the less they will want to deal with that kind of crap, and maybe stock different things, and the effect will go up the chain to the software publisher that made the EULA so frickin stupid in the first place.

      If anyone is in Gainesville, Florida and wants to try this, I'd be game. Reply.

      • Re:read the eula? (Score:3, Insightful)

        by dattaway ( 3088 )
        Stores do not like unhappy customers. Better have a lawyer to protect your rights, because they store is likely to call the police for crowd control and have you guys bused off to the station for processing.

        It seems expensive to fight big companies.
    • Buy by credit card.

      If they won't give you a refund, do a chargeback.

  • was it on the service or the software? (Score:5, Interesting)

    by Dr. Awktagon ( 233360 ) on Tuesday June 11, 2002 @09:54PM (#3683422) Homepage

    Image if you were buying a bed and you were asked to sign an agreement first.

    Or rather, imagine if a tag on the underside of the bed read "You agree to the agreement on our website just by laying on this bed." And courts upheld it because of some obscure twist of logic (the way they say making a copy of the software you bought in RAM is a copyright violation).

    As for this ruling, well, is it for the SERVICE or for the SOFTWARE. If it's for the service, the position isn't as clear, because you didn't buy anything, you agreed that if you do such-and-such, the service will be provided to you, and if you don't do such-and-such, it won't.

    But if the EULA on the purchased SOFTWARE was found to be binding, we're in DEEP SHIT TROUBLE, you better believe it.

    Software End-User: Ha ha! I found a way to use the software in a way that Microsoft doesn't want, but still meets the terms of the EULA!

    Microsoft HQ: Ieee! They found a loophole in our EULA! Quick! Mutate the EULA terms every 15 seconds! On my mark... go!!

    End-User: Ahhhhhhrg!! They're mutating EULA frequencies! I can't keep up with the changes! I might be violating them and I won't know! *KNOCK KNOCK* Uh oh, it's THE KNOCK! The cops are here! *dragged away at gunpoint*

    Microsoft HQ: Whew, that was close! Reduce EULA rotation frequency to the usual once per day.

    • Or rather, imagine if a tag on the underside of the bed read "You agree to the agreement on our website just by laying on this bed."

      That's not the way these work. I think even when you buy a windoze pre-installed, you have to click on it when the machine fires up the first time.

      Even if not, the real issue is that people put up with this crap because it rarely impacts them. They simply click and go on, and then when Kazaa uses it (or more likely, a hacker who figures out how to take it over), they'll scream "they shouldn't have been allowed to do that! Pass a law!" Well, if people would Just Say No in the first place, there wouldn't be a problem. But apathy rules, and as a result, there isn't any commercial software out there that doesn't have an egregious EULA.

      I would support a law that required a plain english version in front of the legalese, and that the whole thing had to be less than a page.

      • I think even when you buy a windoze pre-installed, you have to click on it when the machine fires up the first time

        What if you purchace a PC from a mom & pop store? Are you bound by the EULA that pop clicked on when he was installing your video card drivers for you? Is he bound to the EULA because he was the one who clicked?

        The only good answer I can come up with is that he must print the EULAs and have you sign them when you pick up your PC. All three parties are then bound (you to him, and him to MS) into a strange love/hate triangle.

        If it was later found that the EULA had been violated, I wonder who would spend time in the federal prison?

    • Public law trumps private contracts. (Score:4, Insightful)

      by Erris ( 531066 ) on Tuesday June 11, 2002 @11:05PM (#3683739) Homepage Journal
      The scare here is that M$ or others can violate your rights by contract. This is no more the case than you can sell yourself into slavery. Anyone dumb enough to offer you that kind of a deal deserves to be burnt, and will be. You might have your property abused by agreement, but there are limits to that.

      Some of the dumber EULA are sure to be thrown out. Is anyone really going to enforce the "you can't say bad things about M$ with front page" term? Good freaking luck. They might be able to take away that horrible program from you but they can't keep you from telling the world how much they suck.

      Privacy is a real concern. The XP EULA grant's M$ the ability to search your computer. You had better believe they already do and will continue to do it. They even changed up their hotmail junk so they could spam you all the way to China. Kazza's gonna sell your cycles to Iraq for wepons development, well I don't think so.

      These are all violations of your property and patience, but God help them if they actually break things in a way that lawers can understand. The waste M$ inflicts is huge, some starving lawyer is just waiting to pounce on it. Then poof, the proven illegal monopoly is going to actually pay.

      My contracts with M$hit expired a long time ago and I'm much happier for it. You see freedom [fsf.org] from all these abuses is closer than you think [debian.org]. Do something good for yourself and dump that privacy invading, insecure,unstable, advert laden junk. The power ends when you don't need it.

  • Doh! (Score:2, Insightful)

    by boa13 ( 548222 )
    What a weak article. I don't know this site, but it seems to me as if it is targeted to younglings discovering life. It belongs to the 12-years old crowd, not Slashdot.

  • Software EULA are messed up (Score:5, Insightful)

    by xinu ( 64069 ) on Tuesday June 11, 2002 @10:00PM (#3683453) Homepage Journal
    Why is it that you have to purchase the software to read the EULA. What if you don't agree with it and refuse to use it at that point out of spite. You've already opened the package and can't get your money back usually. I just don't get it, never have.

    • Re:Software EULA are messed up (Score:5, Interesting)

      by reemul ( 1554 ) on Tuesday June 11, 2002 @10:26PM (#3683564)
      EULA's that have the text inside the box where you can't see it until you've agreed to it aren't enforceable, that has been decided in the past (IIRC, likely someone here who remembers the exact case). That's why most boxed software has some sort of seal on the software media itself stating that by breaking that seal you are agreeing to the terms - by then you have the box open, and can read the terms enclosed. That arrangement is likely to be enforceable. As long as that seal is intact, and all of the other contents are as they were when you got it, most retailers will take it back - they may have to, as those licensing terms almost always state that if you don't agree, you need to return the software unopened to the point of purchase for a refund. (They've all got shrink wrap machines, they'll usually just put it right back on the shelf before you've even made it out of the store. Doesn't mean that it will be easy, just possible.) If you broke the cd seal (or opened the little bag the floppies were in, if you remember that far back), the retailer will usually assume that you made a copy and are trying to rip them off, and refuse to take it back. Besides, then it's much harder to sell it to the next guy as new. Moral: don't open that seal if you don't want to be stuck with the software or the EULA.

      The click-thru EULAs have the text right there on the screen, so there's no excuse that a judge will accept for not reading it. Particularly those that make you hit some odd key or a non-default button to continue, so that you can't argue that you'd accidentally hit enter too many times and never even saw the EULA screen. Even getting a kid to do it won't work, since they would be considered to be acting as your agent. A minor who bought the software with his own money and clicked thru *might* get out from under, since he can't be bound by a contract and his parents were not involved (which would bind them, if not him), but don't bet real money on it.

      Really, by arguing under what circumstances the EULA is or isn't binding, we're already conceding the biggest point: that a licensing model should even apply at all to software. I'd much rather see it treated under the law as a book or CD, my property to dispose of as I please subject to the doctrine of first sale. I can tear out pages, draw on it, loan it to friends, whatever I want. That's the fight we need to focus on, not minor little bits regarding the fine details of consent without a paper signature.
      • That's why most boxed software has some sort of seal on the software media itself stating that by breaking that seal you are agreeing to the terms - by then you have the box open, and can read the terms enclosed. That arrangement is likely to be enforceable.

        That is not true. You cannot agree to a contract without having read it. Since the EULA contract is inside the box, breaking the seal on the outside of the box is the least enforceable part of the EULA. However, if I am not mistaken, by breaking the seal on the box, you agree to a smaller agreement that is on the outside of the box. Generally, it reads something along the lines of "Either you must agree to the EULA inside, or return the product to the place of purchase for a refund." Of course, getting stores to refund your money is an entirely different matter...
        • Try reading my post again, since that's what I said. By software media I meant the actual media - CD, DVD, floppy - not the shrink wrapped box. I started my post by explicitly stating that agreements you enter into by opening the box, when the terms are inside and not readable until you've agreed and opened the box, are unenforceable. Which is why most manufacturers have instead put some sealed wrapper around the media inside the box, where you can read the EULA before deciding whether to break that seal and get at the software. Even the CDs included with computer manuals have something similar.
      • Some important differences from a real contract:

        First, there is no proof you ever clicked the button. With a real contract there is a a physical proof (your signature) that you agreed, witnessed and countersigned by a notary and/or the other party of the contract. Here, the proof is absent. They can't PROVE you agreed (maybe someone else clicked it, maybe it failed to display, maybe there is software on your system that prevents it from displaying). Remember the burden of proof is on the prosecution here.

        Second, there is no room for negoation with an EULA, which is required with a real contract. You can negoate your lease agreement and so on. Now the other side doesn't have to accept your changes, but they do have to negoiate. With EULAs, this never happens. the other side never even signs the contract.

        However most importantly EULAs often seek to take away rights that they just can't. There are things you just can't give up, even by contract. For example you can't sell your self into slavery.
      • EULA's that have the text inside the box where you can't see it until you've agreed to it aren't enforceable, that has been decided in the past (IIRC, likely someone here who remembers the exact case)

        The highest court that has considered this issue, in the ProCD case, decided that they were enforceable.


      • What are the chances that once reading the EULA becomes common knowledge, companies will work to make them more obfuscated, convoluted, and otherwise obscure? (does that horrible mess we call the IRS tax code ring a bell, anyone?) If anything, it will be a boon to the legal industry, as many bewildered end users will have to consult with their attorneys just to make sure they understand what it says.

  • How Mythic's EULA Works (Score:5, Informative)

    by vjmurphy ( 190266 ) on Tuesday June 11, 2002 @10:06PM (#3683472) Homepage

    Unlike other EULA's, MMORPGs repeat their EULA's every time a user connects to play the game. In Dark Age of Camelot, the EULA pops up when you log in, and to continue, you have to accept the EULA.

    Typically, anyone playing MMORPGs sees the EULA enough and is given the chance to NOT play the game if they disagree with the terms.

    Contrast this with the typical software package that makes you agree to the EULA without actually seeing it in most cases, and even before you install the software on your computer.

    Everquest has similar provisions (as will Neverwinter Nights, I would assume).

    Here is the important passage from DAoC:

    * You acknowledge and agree that all characters created, and items acquired and developed as a result of game play are part of the Software and Game and are the sole property of Mythic. You acknowledge that: (i) the Software and the Service permit access to Content that is protected by copyrights, trademarks, and other proprietary rights owned by Mythic as covered in Section 3 below.

    • I doubt NwN will have these sorts of provisions. IT wont really be needed. The servers will generally not be run by Bioware/Infogrames. The characters and such will be stored on the Client machine... though I believe there is a provision for central character authentication to keep the l337 h4x0rz from making ubercharacters at will. So what idiot would pay for a character that they might be able to make with their very own character editor?

    • Re:How Mythic's EULA Works (Score:4, Informative)

      by bwt ( 68845 ) on Wednesday June 12, 2002 @10:20AM (#3685913)
      Unlike other EULA's, MMORPGs repeat their EULA's every time a user connects to play the game.

      Oh. This changes everything. This is not a shrinkwrap/clickwrap style installation EULA, but a web-access EULA. The former is the highly controversial case. The latter is not -- they were settled long ago in the Hotmail case. They are enforcable and there isn't much case for saying that they shouldn't be.

      Here you are actually getting something more than the ability to install what you already own (which is an explicit statutory right for the owner of a copy). All the elements of a contract are present: the parties communicate directly, there is consideration (you get access to their server, they get agreement to restrictions), and there is a record of assent (I'm sure they make some record when you click "OK", since that info is sent to them).

  • So? (Score:3, Interesting)

    by TheDanish ( 576008 ) on Tuesday June 11, 2002 @10:12PM (#3683493) Journal
    JBuilder has it in their EULA that by using their software, you waive your right to a trial jury in case you file any suits against them. Basically, the purpose of these EULA's are to rid the companies of as much liability as possible and still have control over their software as they see fit. Personally, I don't blame them, and as long as people continue to agree to them and just whine about it (as opposed to doing something), it'll continue. Eventually, I'm sure restrictions will be made, but not until something that REALLY screws up PR between the public and someone like, say, Microsoft, happens. So, anyway, just read your EULA's once in awhile. It's almost funny how much crap you're actually agreeing to just to use a little bit of software.
  • Heh. Cute, Timothy.

    Especially considering the shit the Slashdot crew pulled when "Fascdot Killed My Pr" sold his account. And that was with no EULA at all to support you. You just screwed with him.

    At least with a EULA we know our rights.

  • The Sky Is Not Falling (Score:5, Informative)

    by lawyamike ( 199551 ) on Tuesday June 11, 2002 @10:13PM (#3683504) Homepage
    A few points about this decision bear repeating.

    First, the jurisdiction of the court: the case was decided by a federal district court, a trial judge within the federal system. The Northern District of California, where the case was decided, is well respected for its expertise in matters of technology, having been the site of several important IP lawsuits and serving currently as the home to Silicon Valley. That said, the decision is binding authority only in the Northern District of California (although courts in other parts of the country may find it persuasive), and it has not been tested on appeal.

    Second, the implications of the decision: the court did not decide the validity of a generally applicable statute or a regulation; it only ruled that in the facts of this case, the EULA was not procedurally deficient (for failing to give the user notice of its terms, for example) and was not substantively unreasonable (for imposing any terms that were fundamentally unfair, for example). The courts decide thousands of cases interpreting contracts each year, and they often do so by analogy to precedent. Accordingly, this decision might have no immediate impact upon the way you use software or review an EULA, but so long as this issue recurs, other judges likely will use the opinion in this case as the standard that they accept or from which they find reason to depart.

    Third, the mutability of the decision: contract law is mostly state law, and most judicial decisions about the law of contracts may be overturned by the legislature. In the fields of, for example, sales, financing, and construction law, there have been enough disputes across many jurisdictions that most states have found it beneficial to enact a uniform law governing the rights of contracting parties. (The Uniform Commercial Code is the best known example of this.) Should this be a sufficiently momentous decision -- I don't think it is -- or become a sufficiently important issue -- and maybe it will -- then one can count upon the legislatures and the law professors to get involved.
    • Bang on. Its worth adding that from the skimpy info in the article, it appears the judge did not rule on the overall validity of EULAs. Blacksnow, after all, was not a party to the EULA. The EULA governs the relationship between Mystic and their users. What it does or does not mean is irrelevant to the issue. Its mere existence defines Blacksnow as a third party, and so without legal standing to alter the contractual relationship.

      Think of it this way. I buy a burger from Wendy's. If I don't like it, I can bring it back. But I can't sell the right to bring it back to someone else for use on a different burger. The "contract" is between Wendy's and me, and applies to that burger. I can still dispute with Wendy's about replace vs. refund, or if there is really something wrong with the burger, so the existence of the contract and its validity are two separate issues.

  • Cool idea (Score:2, Funny)

    by TiBlaze ( 530936 )
    Actually, I moderate and wrote a game where you can sell your soul (like a mock stock market)... had my heart rate pacing at about 200 BPM, But as my DSL modem is still fairly idle I think it's safe to assume that Selling your MMORPG soul, is not referring to my game where you can sell your soul (trade) in an online multi-player RPG :-) BTW: if anyone's interested the address is http://www.soulbay.net [soulbay.net]... if you get a chance take a look :-)

  • BFD... (Score:2, Funny)

    by Black Parrot ( 19622 )


    Who cares... you haven't been able to get a decent price for a Slashdot account since the karma cap went on.

  • Modern-Day Rumplestiltskins (Score:5, Funny)

    by guttentag ( 313541 ) on Tuesday June 11, 2002 @10:19PM (#3683533) Journal
    Image [sic] if you were buying a bed and you were asked to sign an agreement first. It stated that someone else actually would own your bed, could watch what you do in it, come over and use your bed when you aren't in it, and sell anything they found out about your activities in your bed, would you be comfortable buying that bed?
    Kids these days just don't put as much effort into work as they used to. A lazy salesman attatches an EULA to your bed (or couch, or carpet, or the back seat of your car) stating that anything you make in their bed (or whatever) belongs to them. Back in the old days one had to spin straw into gold to snatch someone's child. You had to work at thievery...
  • ... but in perusing the comments attached to this story, I've seen quite a few people who are very confused about the nature of contract law.

    Take a look at:

    http://www.law.cornell.edu/topics/contracts.html

    . . . and then try and figure out again why it is that society tolerates lawyers...
  • "For now on, you might just want to read the EULA before you click 'accept'."

    I've never accepted an EULA. I never will.

  • Did Blacksnow buy any product directly from Mythic? I could see a justification for a contract being accepted at that time. Also because Mythic offers an ongoing service, this is a different case from a normal EULA. Blacksnow cannot use the service without permission, so it's perfectly possible that they can be forced to agree to a contract in order to get permission to use that service.

    Without seeing the ruling, I think it's premature to say that EULAs are enforcible.

  • They missed the forest for the trees (Score:3, Interesting)

    by RelliK ( 4466 ) on Tuesday June 11, 2002 @10:33PM (#3683597)
    The aricle's author(s) complain that you now have to read an agreement before agreeing to it. Well, no shit einstein! That has always been the case, so this ruling adds nothing new in this regard. What is more interesting is that the EULA was upheld as a whole.

    The article doesn't make it clear whether it was the "license" for the service or the actual software that was upheld. The difference is important. I never played whatever game Mythic was producing, but I do know that if you play Diablo, you need to agree to the terms of use of Battle.net separately, if you choose to use it.

    Having the terms of use of an online service upheld is reasonable since you have the ability to read the agreement and agree to it prior to using/subscribing to the service, or disagree with it and choose not to use it.

    The same is not true for shrink-wrap "licenses". You cannot read the agreement prior to buying the software. By opening the box and installing the software you automatically agree to the "license"... oh, but to see the "license" you need to open the box and install the software! Now, supposedly if you disagree, you can take the software back to the store and get a refund -- but we all know how well that works... So, in effect, you are coerced into accepting whatever terms the software vendor feels like putting in the "license".

    The courts have traditionally been sceptical when it comes to enforcing the so-called EULAs. The two supporting cases that I know of are Step-Saver v. Wyse Technology and ARS v. Software Link. There is, to my knowledge, only one case where EULA was upheld outright, "provided that its terms are reasonable" -- ProCD v. Zeidenberg. Interestingly though, that case involved not software but a telephone book on CD. Had the court not held the EULA enforcible, anyone would be free to copy the CD, since, according to the US copyright law, public data (such as names and telephone numbers) cannot be copyrighted.

  • sounds like TOS not EULA (Score:5, Interesting)

    by eddeye ( 85134 ) on Tuesday June 11, 2002 @10:45PM (#3683657)
    >Mythic maintained that (as per their EULA) they owned their virtual world and all property in that world.

    Without details of the actual court ruling I can't be sure, but this doesn't sound so unreasonable. The virtual world is being hosted by Mythic's servers, right? Claiming ownership of data residing on their own servers is not so far-fetched. If they want to rent out time and virtual 'property' as part of the Terms of Service for connecting to their servers, that's their prerogative. After all, running those servers does cost Mythic resources. If you want to use their servers, you agree to their terms; otherwise, you play offline, on competing servers, or not at all. It sounds like a Terms of Service issue, not a EULA one.

    All this is *very* different from sanctioning EULAs in general. In most situations, you're not connecting to or storing data on the vendor's server. I could not imagine Microsoft laying a successful legal claim to all the Word documents ever generated by Microsoft Office.

    Likewise, I can't see this decision being extended to cover every EULA term ever devised. It seems like a very circumscribed case dealing with a very specific issue: who owns the data on Mythic's servers? I suspect even if Mythic's EULA never mentioned ownership of virtual property, the court would still have ruled in Mythic's favor.

    Of course this is all just guesswork on my part. IANAL.
    • This could be very relevant if remote hosting or remote computing is ever going to grow. Apple got some bad publicity a while back after they claimed ownership of all the content in people's iDisks (or whatever they're called) -- but in that case Apple backed down. What if they hadn't?

      Here are some hypothetical situations that seem analagous to the situation with Mythic, that with this precedent all seem a little bit scary...

      Consider a cellular phone company. Would my cell phone's voicemail, being hosted on the cellular provider's equipment, be reasonably considered the cellular provider's property? What if a piece of highly confidential data were left there, say an idea for a new invention. Can the cell phone company claim they own that data and then do with it what they like?

      Ok, suppose I keep track of my finances with an online service and I enter the data directly in to their remote server -- the data never lives on my computer; it's remote only. Now if the company hosting that service decides to toss a boilerplate "we own everything" clause in to the click-through on the login screen, do they have a right to my financial data? So financial data is too inflammatory...how about an online database of all my books? I don't see that as significantly different from the Mythic case.

      Or suppose that a large software company offered remote networked applications via a rental revenue model. The software saves its documents on the remote server. Later I want to retrieve my important documents, but in the meantime the software company has claimed that it owns my documents, based on a clause tucked away in the user license.

      Later I want to create a web page. So I upload my web page to a remote hosting site, which of course claims ownership of anythying on its servers. (You'd start to think I'd learn by now!) Later I decide I want to change or remove some information on the site, but the hosting company refuses to give me access claiming I have no right to mess with their data...and then they start selling this content as their own!

      If this kind of stuff is not illegal, would you necessarily trust a company not to abuse their rights in this way? Remember that in the last ten or fifteen years there has been a growing consensus in the American business world that anything that can be done to increase profits in the short term necessarily should be done. Glance towards Enron if you believe a company is always going to make the "good" forward thinking choice...

      Perhaps we should start lobbying our state legislatures to enact laws to preemptively clear this sort of thing up. Even requiring companies to abide by their agreements as stated the first time a user signs up for a service -- irrespective of how those agreements are initially set up -- would be a positive move. That would make it harder to get blindsided by a change in the user agreement after a person has started using the service (in the syle of Yahoo's "you want Spam" change). And as long as I've got a wish list going, the agreements should be prefaced with a readable easy to understand synopsis of the actual agreement.

      But I doubt the business lobby would ever let anything so simple and sensible sneak through a senate chamber someplace...

  • Copyright is getting too powerful (Score:3, Interesting)

    by smiff ( 578693 ) on Tuesday June 11, 2002 @10:46PM (#3683662)

    An End User License Agreement effectively grants copyright holders rights the congress has not bestowed upon them.

    This has profound implications for all consumer goods. Imagine if Ford used an EULA for their on-board computers. If you don't agree, you can keep the car, but the software (and your ability to use the car) will be disabled.

    The makers of a SmartFridge can claim the right to keep track of anything you put in your refridgerator.

    Copyright holders can claim that anything you do with their software belongs to them. You use MythicWord to write a your doctoral disertation, and Mythic owns the copyright. This is exactly the precedent the court has supported. You develop a character using Mythic's game, and they own your work.

    Congress has the power to grant copyrights. Aside from some constantly expanding experiation date, are their any limits on those rights?

  • I don't see what the problem is. You did accept the EULA, whether you read it or not. If the EULA prohibits the selling of game items for real cash, then don't do it. We're not talking about items not listed in the EULA, or an EULA you don't see until you've already installed the product.

    caveat emptor

    • Good thing /. doesn't have a EULA ... then I couldn't be able to sell my account to the highest bidder ...

      As my sig states (at time of posting):

      FOR SALE: 1 slighty-used Slashdot account, Karma ~= 50, metamoderator privleges ... http://cgi.ebay.com/ws/eBayI

  • It's OK (Score:4, Funny)

    by peterdaly ( 123554 ) <{petedaly} {at} {ix.netcom.com}> on Tuesday June 11, 2002 @10:56PM (#3683709)
    I always have someone else click "accept" for me anyway. That way I don't have to agree to the terms. Shared machines are even better, chances are you don't even know the person who clicked accept.

    I am only half joking.

    -Pete

  • Please post EULAs (Score:4, Interesting)

    by 1010011010 ( 53039 ) on Tuesday June 11, 2002 @11:16PM (#3683787) Homepage
    Would someone please post the EULAs for Windows 98, 98SE 2000, XP, the service packs for those OSes, for Office 2000 and XP, and their service packs, and SQL Server 7 and 2000 and their service packs, and for Exchange 5.5 and 2000, and their service packs? I don't have them handy. This might be a great way to alter my next year's budget, which I'm making out now. s/Microsoft/Free Software/, if you get my drift.

    It would be even handier if someone could point out the heinous sections of each EULA.
    • http://dgl.microsoft.com/mgo1en/eula.asp
      • Easy Acceptance!
      • By installing, copying, downloading, accessing or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, Licensor is unwilling to license the Software. In such event, You may not install, copy, download or otherwise use the Software.
      • Bundling!
      • NOTE: IF YOU DO NOT HAVE A VALID LICENSE FOR ONE OF THE FOLLOWING PRODUCTS (EACH, A "SOFTWARE PRODUCT"), YOU ARE NOT AUTHORIZED TO INSTALL, COPY OR OTHERWISE USE THE SOFTWARE: Microsoft Office 4.2, 95 and subsequent versions, Microsoft Word 6, 97 and subsequent versions, Microsoft Excel 97 and subsequent versions, Microsoft PowerPoint 97 and subsequent versions, Microsoft Access 97 and subsequent versions., Microsoft Outlook 2000 and subsequent versions, Microsoft Publisher 2.0, 3.0, 97 and subsequent versions, Microsoft FrontPage 97 and subsequent versions, Microsoft Home Publishing 99 and subsequent versions, Microsoft PhotoDraw 2000 and subsequent versions, Microsoft Works versions 3, 4, 4.5 and 2000, Microsoft Picture It!, Microsoft Greetings Workshop, and Microsoft Office : Mac.
      • Censorship and Thought Control!
      • You may not use or distribute any of the Software that include representations of identifiable individuals, governments, logos, initials, emblems, trademarks, or entities for any commercial purposes or to express or imply any endorsement or association with any product, service, entity, or activity.
      • More censorship!
      • You may not create obscene or scandalous works, as defined by federal law at the time the work is created, using the Software.
      • Yes, O Evil Overlord!
      • You must indemnify, hold harmless, and defend Microsoft from and against any claims or lawsuits, including attorneys' fees, that arise from or result from the use or distribution of Software as modified by You.
    • http://www.microsoft.com/com/dcom/dcom95/eula.asp
      • Huh? -- no Hello World allowed!
      • Distribution. Microsoft grants you a non-exclusive, royalty-free right to reproduce and distribute an unlimited number of copies of the SOFTWARE PRODUCT, provided that you: (a) distribute the SOFTWARE PRODUCT in object code form only as part of a software product created by you that runs on the Windows 95 platform, and that adds significant and primary value to the SOFTWARE PRODUCT (the "Licensed Product");
      • These clothes are beautiful, and don't you forget it!
      • Performance or Benchmark Testing. You may not disclose the results of any benchmark test of the SOFTWARE PRODUCT to any third party without Microsoft's prior written approval.
    • http://www.microsoft.com/education/license/eula.as p
      • Software is copied when it is installed on the hard disk of a computer or when it is loaded in the computer's temporary memory (RAM). Copying software without the permission of the author is "copyright infringement," for which the law imposes penalties. For questions about local copyright laws, contact the Business Software Alliance (BSA)
      • Read those Service Pack EULAs!
      • 14. When I upgrade a Microsoft product, does my EULA for that product change? Yes, the EULA included with the upgrade version sets forth the license rights for both the original product and the upgrade.
      • Software is copied when it is installed on the hard disk of a computer or when it is loaded in the computer's temporary memory (RAM). Copying software without the permission of the author is "copyright infringement,"

        Completely contrary to copyright law. To quote from 17 USC 117:

        "It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided...that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine".

        Gee, the law says one thing, and Microsoft says another. No wonder they recommend contacting the BSA as opposed to a qualified and unbiased attorney for clarification.
    • http://msdn.microsoft.com/library/default.asp?url= / ibrary/en-us/dnnetdep/html/redisteula.asp
      • Forget about server-side apps
      • NOTE: IF YOU DO NOT HAVE A VALID EULA FOR ANY "OS PRODUCT" (MICROSOFT WINDOWS 98, WINDOWS ME, WINDOWS NT 4.0 (DESKTOP EDITION), WINDOWS 2000 OPERATING SYSTEM, WINDOWS XP PROFESSIONAL AND/OR WINDOWS XP HOME EDITION), YOU ARE NOT AUTHORIZED TO INSTALL, COPY OR OTHERWISE USE THE OS COMPONENTS AND YOU HAVE NO RIGHTS UNDER THIS SUPPLEMENTAL EULA.
      • EULA mutation
      • To the extent that any terms in this Supplemental EULA conflict with terms in the applicable OS Product EULA, the terms of this Supplemental EULA control solely with respect to the OS Components.
      • "Trust Us"
      • You may not disclose the results of any benchmark test of the .NET Framework component of the OS Components to any third party without Microsoft's prior written approval.
      • If MSFT support fucks you over, it's your fault.
      • The entire risk arising out of use or performance of the OS Components AND ANY SUPPORT SERVICES remains with you.
      • You downloaded it for free -- we don't owe you crap.
      • THE ENTIRE LIABILITY OF MICROSOFT AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS SUPPLEMENTAL EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE OS COMPONENTS OR U.S.$5.00.
    • http://www.msnbc.com/tools/newsalert/naeula.asp
      • No wine for you
      • Installation and Use. MSNBC Interactive grants you the right to install and use copies of the SOFTWARE PRODUCT on your computers running validly licensed copies of the operating system for which the SOFTWARE PRODUCT was designed [e.g., Microsoft Windows(r) 95; Microsoft Windows NT(r), Microsoft Windows 3.x, Macintosh, etc.].

    • We'd love to, but unfortunately, they're copyrighted, so you have to buy the software in order to read them...


  • If EULA enforcement and reinforcement in the courts becomes widespread, we will see a rash of programs devoted to automatically eliminating and otherwise blocking EULA agreements from the user's point of view.

    If they're going to take that many rights anyway, they may just as well have to do it completely against the user's will. That, and over the course of thousands of installations, it will probably save days of computer time per user over a lifetime.

    :^)

    Ryan Fenton
  • For now on, you might just want to read the EULA before you click 'accept'.

    What is this, the 5000th time I've seen that line in a Slashdot article? Maybe people should start paying attention. RTFEULA. If you don't agree with it, don't install it, and write to the company telling them why (and, as you are legally allowed in the US, demand a refund. No product can be forced on you). Look for an alternative with a license you can agree with. It isn't too tough, and it's the only way to make a point to these companies. Using it anyway doesn't work, bitching on Slashdot doesn't work...a large number of persons telling them they refuse to comply with stupid terms and won't buy it will work.

  • Does that mean that if EULAs are 100% enforceable, that every time a system administrator installs a piece of software with a EULA, the corporate lawyer has to be there to review the EULA to confirm that the EULA is safe for the company to agree to?

    Could a system administrator even install the software if she/he was not an officer of the company or otherwise authorized to enter the company into a legally binding contract? (i.e. if the EULA gave the software developer the right to inspect/use the system the company installed it on -- which might also have on it confidential data, customer records, trade secrets, etc.)

    • If I was a bastard, I just might run EVERY software license past the legal team. All the installations. All the Service Packs. Everything. Add that to the "Total Cost of Ownership" of the software. Present the next year's budget with those costs in addition to the regular upgrades, etc., plus the cost for liability insurance ("EULA Insurance"). And present an alternate budget for a Free Software setup. That Peruvian guy was right, ya know. Free Software is better for the local economy.
      • How's that being a bastard? That's being an aware 'consumer' in a litigous socieity. It doesn't matter if one person consumes or a company consumes. However, EULA's can have really bad penalties on the company (MS using BSA police to bully through comps). You should already be sending licenses through the legal dept.

        Course, that's a great foot-in-the-door for installations like debian or slackware. It's all open (bin and source). The only problem is the programming dept (if you have one). GPL'ed source is nasty in software-only corporations. I dont care what any other dick says, but no propeiritary software dept wants GPL infestation.
  • Oh...I didn't read the license - it doesn't apply.

  • This is a Service EULA, not a Software EULA. (Score:3, Interesting)

    by Blackwulf ( 34848 ) on Wednesday June 12, 2002 @12:02AM (#3683937) Homepage
    What this case is about is selling Mythic's intellectual property on eBay. Actually, no, they're selling an item on Mythic's database on eBay. That's the programmers term for it. They are selling the right to that symbolic link on Mythic's server. The SERVICE EULA forbids this.

    It just so happens that the software cannot be run without the service. Much like how your telephone can't be used without the telephone service. (House phones, not cell phones with the nifty games.)

    I fully believe that MMORPG developers have the right to not allow links on their database to be sold on eBay. Now, if the developer gets ROYALTIES for each link sold, then that would be okay. But I don't see any of these people paying Mythic royalties for selling Mythic's property...
  • I had never thought of it before but when a person buys a computer from Best Buy, I use them cause I use to work there, they take the computer home turn it on, and then they can either agree or disagree to the EULA which is the first thing they see. NOW in that case they decide but what if someone decided for them. More specificly what about the free setup that Best Buy offers when you purchase a computer. I personal setup hundreds of computers and always blazed right past the EULA cause I was in a hurry. No where on any of Best Buy's paperwork does it say that Best Buy is going to agree to the EULA for you or tell you that they are doing so. My question is does the EULA still apply to the customer that purchased the machine? Now that I think about it, it is kind of like someone forging a signature and more importantly if the customer finds out about the EULA from a someone, would Best Buy be obligated to take the machine back if the person didn't agree? I'm not a lawyer so if anyone has any idea I am curious.
  • It's time to get rid of EULAs. They are counter to five thousand years of contract law. They are counter to one thousand years of common law. They are counter to both the Commercial Code and Copyright Law (in the US).

    EULAs are based on the unwarranted proposition that the author of the software has the exclusive right to use and install the software. This is not true. According to 17 USC 117, the owner of the copy of the software has the right to utilize the software, including adapting it in such a way as to be able to utilize it (e.i. installation). Since the user has the right to use the software, such use cannot be taken as a form of assent to be bound by the license.

    But enough of that. What really bugs me is why these turkeys even need EULAs. Pretend you're a proprietary developer wanting to restrict your software. What do you want to restrict? Let's see... No unauthorized copying. No unauthorized distribution. No unauthorized derivative works. In short, just the same stuff a proprietary novelist wants. So why a EULA? Wouldn't a simple copyright statement be just as good? In just about every EULA I've seen (discounting those monstrosities from Microsoft) the only thing they restrict are copying, distribution and modification.

    Audio CDs and DVDs don't have EULAs. But if software EULAs get legitimized, it's only a matter of time before the MPAA and RIAA (those scum) get on the gravy train. We don't want that. We don't want to watch a movie in a theater only to see a EULA two hours later saying that be watching the movie we have agreed to post no negative reviews...

    If you're a proprietary developer, stop using End User License Agreements. Start using simple copyright statements. You won't lose anything. Your users will thank you.
  • The best thing software vendors can do now is to keep EULAs really simple; otherwise, end users will distrust them. It also may strengthen EULAs associated with open source. Altogether, just like strict enforcements of copyrights, this is a win for open source.

  • What passes through my bed... (Score:3, Funny)

    by Jace of Fuse! ( 72042 ) on Wednesday June 12, 2002 @03:06AM (#3684463) Homepage
    "While your computer and your bed may be different, the things that pass through both can be quite personal.
    "

    If I sold what passes through my bed, that would technically make me a pimp.

  • Some points (Score:4, Insightful)

    by Rogerborg ( 306625 ) on Wednesday June 12, 2002 @07:56AM (#3685077) Homepage

    From the court [unknownplayer.com], we find that the owners of Blacksnow did their trading in game. Now, argue all you like about most people not reading the EULA, but professional traders have no excuse for not reading it.

    As regarding whether they did or not, and whether they clicked through and agreed to it, remember that this is civil litigation. The burden of proof is not beyond all reasonable doubt, but rather balance of probabilities. In deciding what is fact, the court only has to consider the most likely scenario. And the most likely scenario is that Blacksnow (if not the players) did read (or should have read) and did agree to the EULA. If they didn't, then the burden is on them to show that.

    Also note that the issue is about the actions that they chose to perform on the service, not what use they made of the software.

    Given all this, it looks pretty clear cut that Mythic are right, and Blacksnow are wrong. My only problem with this is that it feels wrong. Effectively, Mythic are saying that they have complete control over everything that happens on their servers, and that they will be the final arbitrator on who did what - and more importantly, why they did it.

    The reason that this last point is important is that from the point of view of Mythic, what's the difference between these actions?

    • I drop a Sword of Boinking because I agreed in an email conversation with Blacksnow that I would do so in return for money.
    • I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for money.
    • I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for them dropping an in game item.
    • I drop a Sword of Boinking because I agreed in an email conversation with another player that I would do so in return for beer.
    • I drop a Sword of Boinking because I agreed in a verbal conversation with my son that I would do so in return for him taking out the trash.
    • I drop a Sword of Boinking because I hit the wrong key.
    • I drop a Sword of Boinking because I'm drunk.

    The answer is that from Mythic's point of view, there is no difference. The action that Mythic sees is: Player X wants to drop a Sword of Boinking.

    Now, Mythic get to decide what the motivation was behind this action, and to punish me or terminate my account without possibility of appeal. In the case of Blacksnow, it looks clear cut, but that's because Blacksnow have been decent enough to be above board about what they have been doing. But now the precedent is set that Mythic and other online services can charge money to access content that they control and can deny access to at any time for any reason that they like, and your option is to suck it up or... actually, there is no "or".

    Is that just? Well, actually yes, because it's Mythic's service, they can set the rules, and nobody is forced to play it. Is it enforcable? Demonstrably, yes. Does this kind of control freakery damage online games? Not really, it's rampant on EQ (down to them enforcing their own particular view on what's an appropriate "fantasy genre but non trademarked" name), but that's still going strong.

    But does it feel right? Hell, no. Is there anything that we can do about it? Probably not. I wouldn't play such a horribly restrictive game in the first place, and so I don't even have the meagre threat of withholding my money, but the plain old fact is that most players simply don't know and don't care (enough) about it to leave. So, by the Great and Powerful Laws of Capitalism, Mythic is in the right here, and will continue to remain so until the money stops flowing in.

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