305: Self-serving Small Print

Douglas Heaven

New member
May 9, 2011
8
0
0
Self-serving Small Print

Odds are pretty good you don't bother to read every EULA you agree to, and odds are even better that someone is counting on that fact.

Read Full Article
 

Frybird

New member
Jan 7, 2008
1,632
0
0
Well, that's a really complicated topic.

After all, it's not only about whether or not one cares for the EULA presented to him, but how much he wants to use the service/game/product that's lurking behind the "agree" button.

If i'd decline every EULA that i'd slightly would disagree with, i hardly could play any games. It's not like i can go and argue with whoever set the agreement up because in the end, i'm not a customer (yet) and even if i were, that person/group/company still wouldn't want to bother negotiating a new agreement that is at least satisfactory to me.

In the end, for the customer, those things are about either losing or not winning. There is just nothing to gain because, in the end, me not agreeing with a Term of a EULA on such a widespread product is ultimately pointless.
 

Petromir

New member
Apr 10, 2010
593
0
0
I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.
 

Lord_Jaroh

Ad-Free Finally!
Apr 24, 2007
567
0
0
Petromir said:
I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.
I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.
 

DonTsetsi

New member
May 22, 2009
262
0
0
And it's getting worse. How long until PCs come with agreements not to install a different OS?
 

Petromir

New member
Apr 10, 2010
593
0
0
Lord_Jaroh said:
Petromir said:
I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.
I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.
In the case of software it gets tricky here, the part that is worth anything really isnt a physical object, and its difficult to find a way of proving it doesnt work, and that you are actually returning it.

To solve the backup issue the regualtor should offer guarentees of all replacement media, pref free, if not at cost. On the does not work, I cant see that many ways to prove it without really bad DRM.
 

Plinglebob

Team Stupid-Face
Nov 11, 2008
1,815
0
0
Lord_Jaroh said:
Petromir said:
Make it clearer on boxes that it is a license you are buying, not the item.
I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.
This is the defining issue in this argument, but its never really addressed unless its part of a discussion about the EULA. As I don't have the the knowledge to research the topic myself, an article on how games (and other software) ended up being licenses to use instead of physical products would be really interesting.

DonTsetsi said:
And it's getting worse. How long until PCs come with agreements not to install a different OS?
While this may end up being the case with store bought PCs or specifically enclosed systems(like Netbooks or Macs), it would be close to impossible for it to happen to PCs generally because pretty much anybody with a working brain and a set of instructions can build a working PC from individual components. The only way it would is for Windows and Apple to stop selling their OS's as single items and even then, there's always Linux.
 

CM156_v1legacy

Revelation 9:6
Mar 23, 2011
3,997
0
0
Is anyone really shocked at license agreement lengths anymore?

What?s one of the first rules of law? Get everything in writing.

That being said, I do wish they could condense it down to ?Don?t pirate stuff?, or in the case of online games ?Don?t sue us if our servers go down?
 

bdcjacko

Gone Fonzy
Jun 9, 2010
2,371
0
0
How many people actually go out of their way to make their ps3 into a linux machine. Isn't it easier to just get a real computer, install linux, and then sit smugly knowing that you are better than those knuckle dragging counsel players*?


*I was just making a joke, I barely even know what linux is, it is a short tailed endangered cat from Portugal right?
 

ForsakenUK

New member
Feb 11, 2010
41
0
0
wouldn't installing another OS stop you from connecting to PSN anyway?

seeing as it would overwrite the current one etc? or would the OS install onto a partition?
 

Jhereg42

New member
Apr 11, 2008
329
0
0
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
 

de5gravity

New member
Apr 18, 2011
295
0
0
The thought crossed my mind a couple of times, but I always dismissed it and now I'm kind of worried about it: if Valve decides one day to get out of the distribution business (for whatever reason, I'm not arguing whether or not it's remotely realistic), do they have all the right in the world to pretty much stop us from accessing the games we paid for?
That's a very scary thought. Or maybe we should start viewing Steam as some kind of Netflix: you don't really own the content, it's there as long as we are.
 

beema

New member
Aug 19, 2009
944
0
0
Jhereg42 said:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
This is the same point I was going to make.
Simply put, by the time you are asked to agree to a EULA, you have generally already purchased the item/service. It's completely absurd. If you actually don't want to agree with it, you are faced with a return, which may or may not even be possible (sometimes places will do exchange only, but that doesn't help since it's the same EULA).

I really don't like that EULA's are increasingly stripping away more and more user rights. Because of these agreements we no longer own half of the things we buy.

It's akin to buying a house and having to agree that the home-builder can take it back, without compensating you, whenever they want. Or that the home-builder can come by one day and knock down your bedroom wall because they feel like it.
The entire concept is completely one-sided and infuriating.
Don't some EULA's imply that, by purchasing the product, you have already agreed to their terms? Before even reading anything?

Yes, it is our faults for continually accepting them. When you examine the way they are presented, it's hard to place the blame on consumers though.
The entire system is contrived so that there is no reasonable way for the consumer to protest. The agreements are long and worded in legalese, usually presented at a time when you do not have the time/desire to read through them, and if you don't like one aspect of them, you technically cannot use the product whatsoever. There is no negotiation, no leeway. Their way or get fucked.

Everyone loves Steam, but as the paranoid guy in me keeps saying:
At any time, Steam could decide to deny you access to all your games, and there is NOTHING you could do about it. You are renting them. You don't own anything.
 

Delusibeta

Reachin' out...
Mar 7, 2010
2,594
0
0
Jhereg42 said:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
And the best part is that Activision has introduced similar EULAs to their console games that are auto-accepted as soon as you put the disc in the drive. (Check the manuals if you don't believe me)
 

Worgen

Follower of the Glorious Sun Butt.
Legacy
Apr 4, 2020
11,705
1,055
118
Gender
Whatever, just wash your hands.
I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all
 

Griffolion

New member
Aug 18, 2009
2,207
0
0
Like the article said, we tacitly agree to these conditions, i'm guilty of that like everyone else. If we ALL stopped buying games in demand of fairer EULA's etc then I think stuff will change, but I doubt that will ever happen.
 

Emergent

New member
Oct 26, 2010
234
0
0
Worgen said:
I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all
This. This should be said more. EULA's are literally meaningless.

If an empowered employee (i.e. one given written permission to make binding decisions on behalf of the corporation) of the publisher wants to stand on hand in the real world with two witnesses and a Notary Public at the point of purchase (how would we do that online, again?) so that we can sign a legally binding agreement before I give anyone any money, we'll talk. Until then, gtfo please, EULA's are not legal documents.
 
Apr 28, 2008
14,634
0
0
Jhereg42 said:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
Yes, this.

Frankly, I'm both amazed and appalled that EULA's have been going along as much as they have.

EULA's are completely bullshit. For PC games, you have to buy it, take it home, and start installing to see it. At that point you can either agree to this anti-consumer agreement, or not play a game and be out $50.

For console games, you agree to it right when you buy it, without seeing it at all.

Try this with any other industry, and that shit would be shot down damn near instantly.
 

JaredXE

New member
Apr 1, 2009
1,378
0
0
I never accept EULAs. Yet I still play games. How? My 'cat' accidentally clicks the accept button, I never accepted it, I didn't even know one popped up. Oh well, guess it can't be proven that I accepted the license.
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
Emergent said:
Worgen said:
I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all
This. This should be said more. EULA's are literally meaningless.

If an empowered employee (i.e. one given written permission to make binding decisions on behalf of the corporation) of the publisher wants to stand on hand in the real world with two witnesses and a Notary Public at the point of purchase (how would we do that online, again?) so that we can sign a legally binding agreement before I give anyone any money, we'll talk. Until then, gtfo please, EULA's are not legal documents.
You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

See ProCD, Inc., v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (upholding the validity and enforceability of a shrink-wrapped EULA).

See Hill v. Gateway2000, Inc., 105 F.3d 1147, 1149 (7th Cir. 1997) (holding that contract terms inside a box of software were binding on consumer who subsequently used it).

See Mudd-Lyman Sales and Serv. Corp v. UPS, Inc., 236 F.Supp. 907 (N.D. Ill. 2002) (ruling that plaintiff accepted terms of license by breaking shrink-wrap seal and by its on-screen acceptance of terms of software license agreement).

See M.A. Mortenson Co. v. Timberline Software Corp., 140 Wn.2d 568 (Supreme Court of Washington, 2000) (holding that the licensing agreement set forth in the software packaging and instruction manuals was part of a valid contract).

See Arizona Cartridge Remanufacturers Ass'n v. Lexmark Int'l, Inc., 421 F.3d 981 (9th Cir. 2005) (upholding the validity of a shrink-wrapped license because the box provided clear notice of the terms and the box had been opened).

See Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569 (New York Supreme Ct. App. Div. [Aug.] 1998) (holding that a shrink-wrapped contract was formed when the plaintiffs retained the software for longer than the 30 day "approve or return" period).

See Rogers v. Dell Computer Corp., 2005 WL 1519233 (Okla. June 28, 2005) (holding that a contract was formed when a computer was ordered by telephone and terms contained in box were disregarded).

See Levy v. Gateway 2000, 1997 WL 823611 (N.Y. Sup. Ct. 1997) (holding that consumer assented to EULA by keeping the product).

See I-Systems, Inc. v. Softwares, Inc., 2004 U.S. Dist. LEXIS 6001 (D. Minn. Mar. 29, 2004) (denying summary judgment in part by upholding I-Systems' click-through and shrink-wrap licenses).

See Net2Phone, Inc. v. State ex rel Consumer Cause, Inc., 109Cal. App. 4th 583 (Cal. App. June 9, 2003) (implicitly upholding Net2Phone's forum selection clause, even though the user agreement was formed only through a hyper-linked contract with the language "by using the site or materials, you agree . . . .").

See Lively v IJAM, Inc., 2005 OK Civ. App. 29 (2005) (holding that an enforceable contract was formed when a computer was ordered by telephone and terms contained in box were disregarded).

See Rinaldi v. Iomega, 1999 WL 1442014 (Del. Super. Sept. 3, 1999) (enforcing a disclaimer of warranties contained inside product packaging when there was a refund opportunity).

See Westendorf v. Gateway 2000, Inc., 2000 WL 307369 (Del. Ch. Ct., March 16, 2000) (enforcing licensing agreement contained in the packaging even though the computer was paid for by someone else).

See Vernor v. Autodesk, No. 09-35969. DC No. 2:07-cv-01189-RAJ (2010) (concluding that a shrink-wrapped EULA created a license rather than a sale of the underlying software).
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
Worgen said:
I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all
On the facts you describe, there isn't yet an agreement between the parties so I'm not seeing how you can say that the EULA doesn't matter at all. Technically, it wouldn't exist on the facts you've described. It may not exist because it hasn't been entered into, but that doesn't mean it doesn't matter at all. Just that it hasn't been entered into by the parties.
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
Irridium said:
Jhereg42 said:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
Yes, this.

Frankly, I'm both amazed and appalled that EULA's have been going along as much as they have.

EULA's are completely bullshit. For PC games, you have to buy it, take it home, and start installing to see it. At that point you can either agree to this anti-consumer agreement, or not play a game and be out $50.

For console games, you agree to it right when you buy it, without seeing it at all.

Try this with any other industry, and that shit would be shot down damn near instantly.
You aren't exactly describing the process accurately, but every industry that licenses software uses the same means of establishing a license between licensor and licensee. Buy a copy of an AutoDesk program (e.g., AutoCAD), and the same process applies. Games aren't in any way peculiar.
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
JaredXE said:
I never accept EULAs. Yet I still play games. How? My 'cat' accidentally clicks the accept button, I never accepted it, I didn't even know one popped up. Oh well, guess it can't be proven that I accepted the license.
I hope you aren't seriously relying on that argument. FYI, that ain't gonna stand up in any court.
 

Emergent

New member
Oct 26, 2010
234
0
0
JDKJ said:
Oh, hi. They let you out of your cage, I see. Oh well, it was a nice few days while you were suspended. Anyway, this is pointless retreading of old ground.

Random lower court decisions get overturned all the time (especially when the judge turns out not to know what the fuck the difference is between a media product and a physical product), you and I specifically have even had this argument before, let alone the half dozen other threads you go around spouting this shit in. There's as many, or more, cases where EULA's have been thrown out and they've been linked/quoted to you on more than one thread here, and by a dozen posters if not more - in the last month alone.

At this point, you're literally just e-stalking those of us who disagree with you to the point of having personally threatened me through this very site's messaging system over something you were particularly fired up about.

Bye now, troll.

(P.S. the quadruple post is a dead giveaway)
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
Emergent said:
JDKJ said:
Oh, hi. They let you out of your cage, I see. Oh well, it was a nice few days while you were suspended. Anyway, this is pointless retreading of old ground.

Random lower court decisions get overturned all the time (especially when the judge turns out not to know what the fuck the difference is between a media product and a physical product), you and I specifically have even had this argument before, let alone the half dozen other threads you go around spouting this shit in. There's as many, or more, cases where EULA's have been thrown out and they've been linked/quoted to you on more than one thread here, and by a dozen posters if not more - in the last month alone.

At this point, you're literally just e-stalking those of us who disagree with you to the point of having personally threatened me through this very site's messaging system over something you were particularly fired up about.

Bye now, troll.

(P.S. the quadruple post is a dead giveaway)
FYI, the Supreme Court of Washington is not a "random lower court." It is the highest state court in all of Washington. Nor is the Ninth Circuit Court of Appeals a "random lower court." It is the appellate court for the largest federal jurisdiction in the land -- and one where many software developers do business -- and its decision are appealable only to the Supreme Court of the United States of America.
 
Apr 28, 2008
14,634
0
0
JDKJ said:
You aren't exactly describing the process accurately, but every industry that licenses software uses the same means of establishing a license between licensor and licensee. Buy a copy of an AutoDesk program (e.g., AutoCAD), and the same process applies. Games aren't in any way peculiar.
True enough. However, AutoDesk gives you a 30-day free-trial for all but 2 of their products. You don't get a free trial with games(well there's demo's, but the number of games with demos is slowly declining). So before you buy, you know if you'll like it or if its for you. Quite a lot of software companies do this actually, and quite a lot of games do not.

And I always figured the gaming industry was an entertainment industry, rather then a software licensor. In which case, some more clarity on that would be needed.
 

galaxygamer

New member
May 23, 2008
47
0
0
Frybird said:
If I'd decline every EULA that I'd slightly would disagree with, I hardly could play any games.
Hey now! There is a really great way to A)Not agree to any EULA, AND B)Still play games! Simply build yourself a really great retro video game collection! I have games for the NES, SNES, PS1, PS2, Sega DreamCast, Sega Saturn, and N64. Would you believe with these systems there is no "always on" online DRM? Would you believe there is no stupid contract I have to abide by simply to play the great games on those systems? Would you believe I can still play multiplayer with real people sitting next to me watching the same TV screen? It is truly astounding!

I just thought I would throw that out there. :)
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
Irridium said:
JDKJ said:
You aren't exactly describing the process accurately, but every industry that licenses software uses the same means of establishing a license between licensor and licensee. Buy a copy of an AutoDesk program (e.g., AutoCAD), and the same process applies. Games aren't in any way peculiar.
True enough. However, AutoDesk gives you a 30-day free-trial for all but 2 of their products. You don't get a free trial with games(well there's demo's, but the number of games with demos is slowly declining). So before you buy, you know if you'll like it or if its for you. Quite a lot of software companies do this actually, and quite a lot of games do not.

And I always figured the gaming industry was an entertainment industry, rather then a software licensor. In which case, some more clarity on that would be needed.
For a console maker, the real value of their business lies in licensing their software, not in providing entertainment. If you use this valuation method, then they're software licensors more than anything else.
 

galaxygamer

New member
May 23, 2008
47
0
0
This is one of the reasons why I won't invest in the video game medium when the new systems come out starting in 2013. What rights will I have? No, really!

I've been playing video games since I was 9 years old since the late 1980s, and I have never had to deal with such trivial bullsh*t, as much as I have had to, until this generation of home consoles and PC games. It is clear to me that all EULAs are meant to simply strip the rights of the consumer purely in favor of the creator of the product: the game. All in all, I can remember actually sharing video game cartridges with friends and neighbors without having to break some stupid EULA. I remember I used to be able to actually play my games I owned on friends' systems without having to log into some game service. I remember turning on a game and almost instantly being able to play it because there weren't g*****n FBI anti-piracy screens (or loading screens) warning me not to pirate games I just legitimately bought. I remember when ads in games were very, very rare.

The future of video games will be more obnoxious and restricting than television. Unlike television, we will have no choice but to watch ads in games; we will have no choice but to be tethered to some game system unable to lend out games or share them with friends; we will be forced to give up our privacy in the name of "system security," contractual obligations through EULAs, and ad-sense-type programs; we will have no actual choice in variety in games since almost all games will be all flash (First-person shooters) and no substance (niche games).

You all can deal with that nonsense and silliness. I'll be playing some great games on my retro systems. Is anyone up for Contra?
 

ryo02

New member
Oct 8, 2007
819
0
0
Ive never thought of these things to be legally binding it just doesnt make sense to.
 

Ipsen

New member
Jul 8, 2008
484
0
0
Irridium said:
Try this with any other industry, and that shit would be shot down damn near instantly.
This is a valid point, though I'm aware other software industries license in a similar manner.
Movies (in theaters) and books (paper) don't have to go through this crap.

What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.
 

Elamdri

New member
Nov 19, 2009
1,481
0
0
JDKJ said:
Emergent said:
Worgen said:
I maintain that the end user license agreement has no real sway and doesnt matter at all, really if you read them for pc games they specifically state that if you do not agree with the elua then you can return the game for a refund but when farcry 2 was on sale on steam and I discovered that it had drm after purchasing it I couldnt get that refund from either steam or ubisoft, ubisoft said the distributer was responsible for the refund and steam said there were no refunds, clearly against the terms of the elua for the game so therefor they dont matter at all
This. This should be said more. EULA's are literally meaningless.

If an empowered employee (i.e. one given written permission to make binding decisions on behalf of the corporation) of the publisher wants to stand on hand in the real world with two witnesses and a Notary Public at the point of purchase (how would we do that online, again?) so that we can sign a legally binding agreement before I give anyone any money, we'll talk. Until then, gtfo please, EULA's are not legal documents.
You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

See ProCD, Inc., v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (upholding the validity and enforceability of a shrink-wrapped EULA).

See Hill v. Gateway2000, Inc., 105 F.3d 1147, 1149 (7th Cir. 1997) (holding that contract terms inside a box of software were binding on consumer who subsequently used it).

See Mudd-Lyman Sales and Serv. Corp v. UPS, Inc., 236 F.Supp. 907 (N.D. Ill. 2002) (ruling that plaintiff accepted terms of license by breaking shrink-wrap seal and by its on-screen acceptance of terms of software license agreement).

See M.A. Mortenson Co. v. Timberline Software Corp., 140 Wn.2d 568 (Supreme Court of Washington, 2000) (holding that the licensing agreement set forth in the software packaging and instruction manuals was part of a valid contract).

See Arizona Cartridge Remanufacturers Ass'n v. Lexmark Int'l, Inc., 421 F.3d 981 (9th Cir. 2005) (upholding the validity of a shrink-wrapped license because the box provided clear notice of the terms and the box had been opened).

See Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569 (New York Supreme Ct. App. Div. [Aug.] 1998) (holding that a shrink-wrapped contract was formed when the plaintiffs retained the software for longer than the 30 day "approve or return" period).

See Rogers v. Dell Computer Corp., 2005 WL 1519233 (Okla. June 28, 2005) (holding that a contract was formed when a computer was ordered by telephone and terms contained in box were disregarded).

See Levy v. Gateway 2000, 1997 WL 823611 (N.Y. Sup. Ct. 1997) (holding that consumer assented to EULA by keeping the product).

See I-Systems, Inc. v. Softwares, Inc., 2004 U.S. Dist. LEXIS 6001 (D. Minn. Mar. 29, 2004) (denying summary judgment in part by upholding I-Systems' click-through and shrink-wrap licenses).

See Net2Phone, Inc. v. State ex rel Consumer Cause, Inc., 109Cal. App. 4th 583 (Cal. App. June 9, 2003) (implicitly upholding Net2Phone's forum selection clause, even though the user agreement was formed only through a hyper-linked contract with the language "by using the site or materials, you agree . . . .").

See Lively v IJAM, Inc., 2005 OK Civ. App. 29 (2005) (holding that an enforceable contract was formed when a computer was ordered by telephone and terms contained in box were disregarded).

See Rinaldi v. Iomega, 1999 WL 1442014 (Del. Super. Sept. 3, 1999) (enforcing a disclaimer of warranties contained inside product packaging when there was a refund opportunity).

See Westendorf v. Gateway 2000, Inc., 2000 WL 307369 (Del. Ch. Ct., March 16, 2000) (enforcing licensing agreement contained in the packaging even though the computer was paid for by someone else).

See Vernor v. Autodesk, No. 09-35969. DC No. 2:07-cv-01189-RAJ (2010) (concluding that a shrink-wrapped EULA created a license rather than a sale of the underlying software).
Will you have my babies?
 

RJ Dalton

New member
Aug 13, 2009
2,285
0
0
I personally make a point of reading ever EULA that gets thrown at me. There have been over a dozen websites I've found that actually explicitly state in their contract that by registering with them, you give them the right to install spyware programs on your computer for marketing purposes. They don't call it spyware, but when you look at the definition they give and the purpose, it's pretty damn clear it's spyware.
That's kind of why I haven't gone for the newer generation consoles. I don't get to look at the EULA until after I've bought the product and the automatic updates allows them to alter the machine in so many ways that there's just no way to be certain that the product you're purchasing will do what you want it to in a couple of months.
 

Rad Party God

Party like it's 2010!
Feb 23, 2010
3,560
0
0
galaxygamer said:
I'm all up for Contra and Metal Slug. Later we can play Battletoads.

But seriously, this is nuts. As an avid Steam user who's spent more than $500 in his library, I'm getting quite annoyed with all of this stuff.
I'm still not paranoid about it, but rather annoyied by it, as it's quite unrealistic that Steam will shut down their services all of a sudden, but I think I won't be buying as many games as I did before all of this nonesense (read: bullshit).

Right now, the only service I see with the lesser draconian EULA is GOG and right now, I prefer to buy old games rather than new ones.
 

Lord_Gremlin

New member
Apr 10, 2009
744
0
0
I've actually read PSN ToS every time an update came out. What really bothers me, is that Sony clearly state that if an official firmware update or a Sony-licensed game purchased via PS store destroy/break/render the console useless Sony is not responsible.
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
Ipsen said:
Irridium said:
Try this with any other industry, and that shit would be shot down damn near instantly.
This is a valid point, though I'm aware other software industries license in a similar manner.
Movies (in theaters) and books (paper) don't have to go through this crap.

What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.
Actually, books in paper form impose functionally equivalent limitations. Pop open most any book and you'll find an express reservation of a copyright and a prohibition that no part of the book may be copied without permission but for brief quotations in critical articles and reviews (i.e., fair uses). Generally, all owners of copyrighted materials make their copyrighted materials available to the public with this understanding. Software is no different. It's copyrighted material. The reason software is licensed to the end user is that it is a practical impossibility -- and makes no economic sense -- that the copyright owner would sell it outright -- not for $40 a pop.
 

Phishfood

New member
Jul 21, 2009
743
0
0
My biggest problem with EULAs is that you have no choice but to accept THAT EXACT eula or go with out. If I go to mcdonalds and they say they will only sell me a cheeseburger if I agree to eat it naked, I can tell them to **** *** and go next door to burger king and get something almost identical but without the requirement.

Entertainment is the only area I set my mind on an exact product and then I can only buy that exact product from one developer. With that exact eula every time.

I guess the point I'm going for here is that games are a lot less fungible than many other products, which severly limits your options. A car is a car. It has 4 wheels and goes from A to B if you put petrol in. They don't all look the same, they aren't identical but to most people the exact choice is no real matter.
 

veloper

New member
Jan 20, 2009
4,597
0
0
How courts deal with EULAs and other shrink wrap contracts seems to vary in places, but examples of courts holding them enforceable involve businesses vs other companies.

Remember that as a consumer who can just buy something in store, you don't necessarily even have to be able to read, so there is no way you could have known about the small print even if you could return a product in x days and get your money back.

Think about what software you install on your compe actually does, instead of worrying about what you could do with it, but maybe wouldn't be allowed to because some dubious EULA.
 

DonTsetsi

New member
May 22, 2009
262
0
0
Plinglebob said:
DonTsetsi said:
And it's getting worse. How long until PCs come with agreements not to install a different OS?
While this may end up being the case with store bought PCs or specifically enclosed systems(like Netbooks or Macs), it would be close to impossible for it to happen to PCs generally because pretty much anybody with a working brain and a set of instructions can build a working PC from individual components. The only way it would is for Windows and Apple to stop selling their OS's as single items and even then, there's always Linux.
Unless they make those limitations hardwired. I don't think it will happen for desktop PCs, but it may for laptops.
 

Sartan0

New member
Apr 5, 2010
538
0
0
Ipsen said:
What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.
The intent is to get you to just click and not read it. That is the point of most legalize. To make you fall asleep and not read it. That way you don't notice the crazy crap you agreed to.

They even add in extra words and overly complex language to make it that much harder to read. It is not that they don't know most people are not Lawyers. They are counting on it.
 

Sartan0

New member
Apr 5, 2010
538
0
0
Petromir said:
I think a judge ruling on this could be a disaster. What this needs is a staute, decided by elected governments, in consult with the industry and consumers.

Define the basics whats reasonable under a EULA, produce an ombudsman to regulate things, and provide a court of arbitration before things go to full on courts. Define what rights each side has, and in turn what responsibilities.

Make it clearer on boxes that it is a license you are buying, not the item.
Well like it or not. In the USA at least courts often act because the Legislature has failed to. In some cases Judges will make rulings very uncomfortable on purpose to get Congress to act.

It is how the system of government self corrects when Congress gets distracted with say subsidies for example. It prompts Congress to do their job.
 

Jonathan Bradford

New member
May 9, 2011
44
0
0
Ipsen said:
Irridium said:
Try this with any other industry, and that shit would be shot down damn near instantly.
This is a valid point, though I'm aware other software industries license in a similar manner.
Movies (in theaters) and books (paper) don't have to go through this crap.

What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.
The issue vaguely reminds me of credit cards and the various fiascos therein. EULA's existence is understandable to an extent, but the wording makes it appear to be more of a "if you sue us" type document than anything else. There is no way around them though (discounting piracy), change will have to be implemented but it will be slow in coming.
 

Nesrie

New member
Dec 7, 2009
41
0
0
Great article. Gamers just need the right person, with the right amount of money and time to finally prove these EULA's are as fair and legal as a selling a toilet paper parachute to someone about to jump out of a plane.
 

Sjakie

New member
Feb 17, 2010
955
0
0
This is the best argument to boycot games(-companies) that use STEAM.

(or Sony for that matter. Now i wonder if the removal of OtherOS has something to do with the recent hacks. Maybe some pissed off linux-Nerds?)

I really wish companies would just sell their software. Agreeing to all that licensing-shit means you can get shafted for no reason what so ever!

"go play game X while company Y shoves it's Z in your A-hole"
 

Duskflamer

New member
Nov 8, 2009
355
0
0
Sjakie said:
(or Sony for that matter. Now i wonder if the removal of OtherOS has something to do with the recent hacks. Maybe some pissed off linux-Nerds?)
Nothing proven but some people suspect that it's hackers who are angry at the result of the GeoHot lawsuit which was over the OtherOS issue (that lawsuit also brought this very topic to light with how public and abusive Sony was being with it's EULA, turning passive acceptance from many people into disdain for the practice).
 

The Random One

New member
May 29, 2008
3,310
0
0
CM156 said:
That being said, I do wish they could condense it down to ?Don?t pirate stuff?, or in the case of online games ?Don?t sue us if our servers go down?
Yeah, I do read EULA's, and like 80% of them is stuff like this. Don't use this to break laws. Don't pretend to own the copyright for this, and don't sell it like you did. Don't sue us for stuff that is clearly not our fault. Don't sue us if we can't provide you an online service because your internet is down/our servers are overload/we went bankrupt.

It's the other 20% that kills.

I'm quite certain that EULA's will never stand in court, though. It would make no sense that they did. A legal decision will likely be on the side of common sense, so it would uphold the EULA in the cases I mentioned in which the costumer is the one being a whiny *****, but would strike it down if it was the company who was acting all uppity.

Well, at least after the Geohot case ends we'll decisively see OH WAIT
 

Ipsen

New member
Jul 8, 2008
484
0
0
JDKJ said:
Actually, books in paper form impose functionally equivalent limitations. Pop open most any book and you'll find an express reservation of a copyright and a prohibition that no part of the book may be copied without permission but for brief quotations in critical articles and reviews (i.e., fair uses). Generally, all owners of copyrighted materials make their copyrighted materials available to the public with this understanding. Software is no different. It's copyrighted material. The reason software is licensed to the end user is that it is a practical impossibility -- and makes no economic sense -- that the copyright owner would sell it outright -- not for $40 a pop.
Huh. Believable. I'll count it my F(ail).
 

Tarngold

New member
Apr 13, 2010
4
0
0
Anyone see that Human Centipad episode of South Park, that's what this article got me thinking of, and for the first time ever i did read more into the agreement given with the last Itunes update. Its some scary stuff when you think about it, were hit with so many EULA's to agree to in the gaming scene, it can become a major hassle to read through all of it.

Just remember, the next EULA you agree to without reading may include a section where the company has the right to abduct and experiment on you. ;) (i kid of course)
 

Duskflamer

New member
Nov 8, 2009
355
0
0
Ipsen said:
JDKJ said:
Actually, books in paper form impose functionally equivalent limitations. Pop open most any book and you'll find an express reservation of a copyright and a prohibition that no part of the book may be copied without permission but for brief quotations in critical articles and reviews (i.e., fair uses). Generally, all owners of copyrighted materials make their copyrighted materials available to the public with this understanding. Software is no different. It's copyrighted material. The reason software is licensed to the end user is that it is a practical impossibility -- and makes no economic sense -- that the copyright owner would sell it outright -- not for $40 a pop.
Huh. Believable. I'll count it my F(ail).
It's not exactly the same. For the most part, you're able to open and flip through a book before you purchase it, so if such an agreement is stated there, you have a chance to read it before purchasing the book. This is rarely if ever the case with software EULAs, in these cases the EULA pops up to be read during the installation process, long after the purchase has been made.
 
Mar 29, 2008
361
0
0
I really have no problems with the basic idea of a EULA, movies have it in the copyright reserved screen, cd's have it in the books, it has to be there to legally state, yep you bought a copy, thanks, just know you don't own the content, just a copy of it for personal use don't sell the content as your own and what not. That's cool with me, its pretty much implied with anything.

But going further than that with strange requirements and restrictions in it that inhibit or control lawful/personal use of the product is insanity, especially when it is some hidden shrink-wrap/post-purchase license, like you've paid for the console, software, & subscription to online network, NOW we reserve the right to make you use or not use certain services or we lock you out of the network reducing the functionality of the device you purchased, hah.

It is insanity, but sadly the culture shift is trending towards corporate empowerment and I don't see any end to this sort of action, at least not through legal/political avenues and while some economic avenues could work; at the rate that all manners of devices are gaining connectivity, I think this is soon to become fairly universal and you'd be left boycotting everything.

If you have a problem with these sorts of "contracts" there really are two options that I see (probably others, but that's for others to point out):
1. Become a ludite and get stuck using outdated tech/soft.
2. Agree to the BS documents, and do whatever you want to do with the product while laughing at the document. Should the VERY unlikely event occur where that corp try to bring you to court over making a hackintosh or something, make it as public as possible you'll lose anyways may as well make them look bad. Unless you are spreading around a root key you have a better chance of winning the lotto than winding up in court for ignoring the bs restrictions.
 

anian

New member
Sep 10, 2008
288
0
0
smv1172 said:
If you have a problem with these sorts of "contracts" there really are two options that I see (probably others, but that's for others to point out):
1. Become a ludite and get stuck using outdated tech/soft.
2. Agree to the BS documents, and do whatever you want to do with the product while laughing at the document. Should the VERY unlikely event occur where that corp try to bring you to court over making a hackintosh or something, make it as public as possible you'll lose anyways may as well make them look bad. Unless you are spreading around a root key you have a better chance of winning the lotto than winding up in court for ignoring the bs restrictions.
Well there is the 3rd option of breaking the "law" and a lot of people do it and just think of how sad it is that so much bad decisions have been made that people are desensitized to those kind of crimes. I mean, who, with any basic sense of moral, wouldn't agree that you have to be "paid" for your work, yet still people do it.
With so many things being really unfair (the legal issues might be borderline or not yet determined, but still I think everyone will agree that, unfortunately, that is far from what is fair), companies themselves are really encouraging opposition.
Companies might have the upper hand for now, but how long is it before every company exepriences an "attack", which are mainly a product of how they treat their costumers. And there are plenty of them that could go on a chopping board, from Valve/Steam, Apple etc.

The whole software/games business has become too big for itself, not only has there been a more than exponential growth in the cost of making games and in the prices that then have to be modified, but the actual struggle to survive in the market produced so much of what is basically greed. Instead of better managment and trying to figure out how to better organise the whole industry, companies take rights from the costumers...just sad really.
 
Mar 29, 2008
361
0
0
anian said:
smv1172 said:
If you have a problem with these sorts of "contracts" there really are two options that I see (probably others, but that's for others to point out):
1. Become a ludite and get stuck using outdated tech/soft.
2. Agree to the BS documents, and do whatever you want to do with the product while laughing at the document. Should the VERY unlikely event occur where that corp try to bring you to court over making a hackintosh or something, make it as public as possible you'll lose anyways may as well make them look bad. Unless you are spreading around a root key you have a better chance of winning the lotto than winding up in court for ignoring the bs restrictions.
Well there is the 3rd option of breaking the "law" and a lot of people do it and just think of how sad it is that so much bad decisions have been made that people are desensitized to those kind of crimes. I mean, who, with any basic sense of moral, wouldn't agree that you have to be "paid" for your work, yet still people do it.
With so many things being really unfair (the legal issues might be borderline or not yet determined, but still I think everyone will agree that, unfortunately, that is far from what is fair), companies themselves are really encouraging opposition.
Companies might have the upper hand for now, but how long is it before every company exepriences an "attack", which are mainly a product of how they treat their costumers. And there are plenty of them that could go on a chopping board, from Valve/Steam, Apple etc.

The whole software/games business has become too big for itself, not only has there been a more than exponential growth in the cost of making games and in the prices that then have to be modified, but the actual struggle to survive in the market produced so much of what is basically greed. Instead of better managment and trying to figure out how to better organise the whole industry, companies take rights from the costumers...just sad really.
That is a really good point that the software industry is a bit bloated, competitive, and people need to get paid, and I could see my 2nd option being a little unclear. Just wanted to state that I am not advocating piracy. I am saying buy the software then doing whatever you want with it. Like if you want to run macOS on a pc damn the eula that says you can't, or if you want to crack and mod Office or something to add functionality, etc. But as a coder, please buy the soft unless it is given out free.
 

bootz

New member
Feb 28, 2011
366
0
0
I have an EULA on my computer Steam and other Programs agree to when I install them. Since they are on my system they must agree to my terms.
 

DTWolfwood

Better than Vash!
Oct 20, 2009
3,716
0
0
I'm always curious y the EULA have a "I Do not agree to the terms" options. Will a retailer give you a full money refund should you choose that option after you have opened it? It isn't like you have to agree to this contract prior to purchase its always after the fact. And if you buy it and not agree, you just paid whatever sum of money for large paper weight.

kind of asinine to have the EULA be presented after the product is purchased and not before.
 

Douglas Heaven

New member
May 9, 2011
8
0
0
Lord_Jaroh said:
Petromir said:
I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.
I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.

Had Sony come out at the beginning and said they were removing the OtherOS feature and would refund those who did not want the update, then this joke would of ended a few months after it began.

I firmly believe that if I spend $300~$450 on a console, it should be mine and I should be allowed to do whatever I want with it, just like my laptop I am writing this on.


If Microsoft were to tell me that they are removing the Windows Media Player because it allows for people to burn CD's thus allowing for piracy.... well, I wouldn't really mind, I hate WMP and its one of the first things I tend to replace.

But if they were to remove something I specifically bought the laptop for, say web browsing, then yes, that pretty much made my computer a useless $1,2000 paper weight, granted, a paperweight that can still play games.

I don't think ToS'es and EULA's as they are now should be binding, since there is nothing stopping users from just hitting "Accept" or scrolling to the bottom and hitting "Accept", a way to improve it though, and to make sure users know what they are agreeing to, would be to have a short questionnaire who's answers could be found in the EULA, though that would get annoying very fast, it would make users actually read through both forms.


While there will always be a back and forth argument over how software and hardware developers treat their users through the EULA, we cant do much against it besides actually reading and understanding what we are agreeing to.
 

PxDn Ninja

New member
Jan 30, 2008
839
0
0
Anytime we buy a new console we buy into the fact that it will stop being supported some day.

While I may not like some of what the EULA's set up for the contract relationship, I am for Sony on this. If you click the "I agree" or "I read" button after the EULA and continue on, you have explicitly accepted the contract. IF you don't like what it says, do not sign it.

I just bought a vehicle and had to sign several contract papers for the loan and such, and I can't claim later if the company stops making parts for the car that I would not have bought it had I known they wouldn't support the vehicle in the future. While nothing is being removed from the vehicle, it still works along a parallel.
 

Grey Walker

New member
Jul 9, 2010
135
0
0
PxDn Ninja said:
Anytime we buy a new console we buy into the fact that it will stop being supported some day.

While I may not like some of what the EULA's set up for the contract relationship, I am for Sony on this. If you click the "I agree" or "I read" button after the EULA and continue on, you have explicitly accepted the contract. IF you don't like what it says, do not sign it.

I just bought a vehicle and had to sign several contract papers for the loan and such, and I can't claim later if the company stops making parts for the car that I would not have bought it had I known they wouldn't support the vehicle in the future. While nothing is being removed from the vehicle, it still works along a parallel.
I see your point, but would you have agreed if there had been a clause in the contract stating that the manufacturers can come by at any time and take out say, the radio or the power steering and you have to let them. Oh, and you can't replace them, either.

Now imagine if you didn't get that contract until after you had already paid for the car in full, and couldn't get a refund.

That being said, I understand the idea of not being able to sue if support is cut out when it comes to games like Demon's Souls or Portal 2. Servers can't run forever.

I think I now understand more of what Yahtzee means when he says full priced games should have a solid single player, but I'm getting off topic now.
 

McMullen

New member
Mar 9, 2010
1,334
0
0
Jhereg42 said:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
This. I hope this point comes up in whatever court cases deal with EULAs. If piracy is theft, EULAs are extortion.
 

The Rogue Wolf

Stealthy Carnivore
Legacy
Apr 3, 2020
11,527
970
118
Stalking the Digital Tundra
Gender
✅
Well, since the Supreme Court has ruled that EULAs can in fact strip you of the right to class-action lawsuits and force you into arbitration (with third-party companies that tend to find in favor of the corporation 95% of the time), the only advice I can give now is this:

Do not buy any consumer goods, at all, ever, unless you can afford a lawyer to go over all the fine print.

Because, seriously, every time someone says "Well, just read the EULA", I respond: Have you? Sixteen pages' worth of small-print lawyertalk designed to confuse anyone with less than an MBA in law? We should get a 5% reduction in a product's price everytime their EULAs use words like "henceforth" and "heretofore".
 

RhombusHatesYou

New member
Mar 21, 2010
5,800
0
0
JDKJ said:
You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

--8<--snippage of case law--8<--
The main issue is when the consumer doesn't agree to the EULA but is prevented from getting a refund/exchange/recompense for the cash outlayed for the licenced product. That's something that hasn't been put to the test in a case similar enough to game software to be of use, at least as far as I know of.


Edit: Heh, and I got the 'forum rules update' agreement screen when posting this. Hahaha.
 

SinisterGehe

New member
May 19, 2009
1,456
0
0
For those people who are against this, SONY being able to decide what you are allowed to do with their product and with their services. If you don't like, don't use it. It is not like someone is forcing you to use it - buy an XBOX and stop whining.

This is why you should read papers like these, even if they might not contain anything and are long. You agreed to obey by them, so shut up. Don't like it? - Then vote with your money, don't use their products.
 

RhombusHatesYou

New member
Mar 21, 2010
5,800
0
0
Jhereg42 said:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.
This is the fundamental problem with EULAs and they way they are used regarding the gaming software industry.

As far as actual contract law goes EULAs are quite sound, even 'shrink-wrapped' ones, it's their implementation that is broken. If you set up a situation where there is no way to avoid 'accepting' the EULA (such as keeping a product as tacit 'acceptance' when there's no way to return it) then there's every chance of the contract being voided.


Also... piracy as an excuse to no exchange/refund? What is this, the 90s? Easier to just torrent a game than buy one, crack it then drag your arse back to the shop where you bought the game.

Actually, the main reason retailers don't refund/exchange PC games is DRM using one shot serial numbers... because Publishers can't seem to just wipe a used serial from their online authentication servers so the serial is valid again... oh no, apparently that would require thought and would mean the same title can be bought twice while they only get the money for it once which would make it almost as bad as the used games market.
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
RhombusHatesYou said:
JDKJ said:
You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

--8<--snippage of case law--8<--
The main issue is when the consumer doesn't agree to the EULA but is prevented from getting a refund/exchange/recompense for the cash outlayed for the licenced product. That's something that hasn't been put to the test in a case similar enough to game software to be of use, at least as far as I know of.


Edit: Heh, and I got the 'forum rules update' agreement screen when posting this. Hahaha.
Fine. Then make that very narrow distinction clear and you're on firm ground. But say that, as a categorical matter, no EULA is binding legal document when there's a slew of court opinions that say they absolutely are, is to spew pure horseshit.
 

RhombusHatesYou

New member
Mar 21, 2010
5,800
0
0
SinisterGehe said:
For those people who are against this, SONY being able to decide what you are allowed to do with their product and with their services. If you don't like, don't use it. It is not like someone is forcing you to use it - buy an XBOX and stop whining.
All console manufacturers have a "this is actually ours and we can fuck it up if we want" clause in their EULAs. It's usually a few clauses below the 'if you fill your console's case with kittens, we're not fixing the damned thing when it breaks' clause.
 

RhombusHatesYou

New member
Mar 21, 2010
5,800
0
0
JDKJ said:
Fine. Then make that very narrow distinction clear and you're on firm ground. But say that, as a categorical matter, no EULA is binding legal document when there's a slew of court opinions that say they absolutely are, is to spew pure horseshit.
I wasn't saying EULAs in and of themselves are not legally binding. They're solid contract law (shrink-wrapped EULAs aren't so solid in Oz but that's neither here nor there for this) but the way the game software companies implement them presents a scenario where they could be voided because the publishers and whoever else have established a system that, going by your cited cases, leaves the consumer with no way to not 'accept' the EULA and with no way to redress.
 

JDKJ

New member
Oct 23, 2010
2,065
0
0
RhombusHatesYou said:
JDKJ said:
Fine. Then make that very narrow distinction clear and you're on firm ground. But say that, as a categorical matter, no EULA is binding legal document when there's a slew of court opinions that say they absolutely are, is to spew pure horseshit.
I wasn't saying EULAs in and of themselves are not legally binding. They're solid contract law (shrink-wrapped EULAs aren't so solid in Oz but that's neither here nor there for this) but the way the game software companies implement them presents a scenario where they could be voided because the publishers and whoever else have established a system that, going by your cited cases, leaves the consumer with no way to not 'accept' the EULA and with no way to redress.
I didn't mean you. I meant the horseshit-spewer to which I originally responded. That's what they said.
 

The Hungry Samurai

Hungry for Truth
Apr 1, 2004
453
0
0
If I may agree to the EULA for Devils Advocate for just a moment here, I don't think these EULA's are implemented to screw over the consumer. Let's face it, there are people in this world who simply look at things in terms of can and can't exploit. Usually these forms are in place as a minor effort to have legal grounds to defend themselves from cheats hackers and pirates. If they can't rely on them then they are just going to find more annoying and difficult ways to protect themselves so that the other side doesn't drive them into a huge financial hole.

Yes it sucks when these things affect those of us not trying to scam the system, but if companies abuse EULA's I think the best way to fight it with your wallet and future purchases. They know that the power is ultimately in our hands.

All this attacking the big guy just because theyre big is getting tiring. If we were in their shoes every one of us would be doing the same thing. Otherwise we wouldn't be wearing those shoes.

Edit: I also find it hilariously ironic that to post this I had to agree to updated forum conduct rules.
 

subtlefuge

Lord Cromulent
May 21, 2010
1,107
0
0
We really need a gaming consumer advocacy group. Something like the EFF that works exclusively on making sure the EULA is fair for both sides.

It's really like any other legal contract, and the fact that these companies have been bullying users into signing it without representation or even full explanation is absurd.
 

RelexCryo

New member
Oct 21, 2008
1,414
0
0
Douglas Heaven said:
Self-serving Small Print

Odds are pretty good you don't bother to read every EULA you agree to, and odds are even better that someone is counting on that fact.

Read Full Article

Welcome to the Escapist. This is an excellent first article, and if you continue to put out excellent articles like this, we will be glad to have you here. This issue has seriously bothered me. People seem to act like fraud and even outright theft from consumers by developers/publishers is perfectly acceptable. There is something deeply wrong with this situation.
 

Lord Honk

New member
Mar 24, 2009
431
0
0
So, do I agree to the EULA by buying a PS3, or when I plug it in and scroll through the menu? Because then is there anything that legally prevents me from modding my console with custom software if I never agreed to abide by Sony's rules? (Let's assume I want a really expensive blue-ray player / mediocre computer and know how to write an OS for the PS3 architecture.)

I'm sorry if this is obvious, but I don't have an XBox360 or PS3. I'm used to EULAs however, and I fear the day when I'm locked out of my Steam account. Well, my physical copy of Morrowind will at least keep me company...
 

Scars Unseen

^ ^ v v < > < > B A
May 7, 2009
3,028
0
0
I don't pirate games, but I think that if I was the guy being told that I would lose my $500 game collection over a $3.75 Paypal dispute I would reconsider my position. Good will keeps customers. Asshattery invites piracy.
 

Spyre2000

New member
Apr 18, 2009
45
0
0
Ok so the PSN EULA says they can remove any feature they like. That's NOT the PS3 EULA!! PSN EULA basically means they can choose to remove features from the PSN such as chat, marketplace, matchmaking multiplayer games, and etc. It doesn't include the right to change anything on your PS3.

That's like saying I buy a TV and my cable company has the right to make changes to it. Just because Sony owns both products doesn't mean it can using wording in one products agreement and apply it to another.
 

Phantom_Viper

New member
Mar 25, 2010
4
0
0
I kind of see this as "Bait and Switch", they offered all these features to consumers as a marketing tactic to increase sales. Now that people have bought the product they are now taking said features away. The thing that Sony and all other companies need to be aware of is that (and please correct me if I'm wrong); No contract that restricts a persons rights or contradicts a country's laws can be legally enforced.
 

cfehunter

New member
Oct 5, 2010
43
0
0
Sony are pretty much killing themselves.
They've got a new handheld on the way, their next console can't be too far off and their reputation is getting as bad as EA at their lowest point.
My intuition tells me we're going to see two massive flops if they don't stop screwing their market.

As for EULA, there are two main things I disagree with.

#1 - EULA's that assume your compliance prior to you reading them or even opening the box, this is completely illegal and would've been shot down years ago in any other medium.

#2 - EULA's that allow the developer to change the agreement after the time of sale. Sony and their removal of OtherOS are an example of this.

Other than that, Software developers have a right to protect their property. It's their income that's on the line and you can't expect them to take no steps to prevent people abusing it once it's out in the wild.

Two steps I think would make the situation infinitely better:

#1 - Make it a legal requirement for companies to abide by their EULA provided at the time of sale. Once a product is available to consumers there can be absolutely no changes to the agreement ever. If they add a new service to the product the new service gets its own EULA.

#2 - Make it a legal requirement for a copy of the EULA to be provided to consumers prior to purchase, for physical copies of games it would have to appear on the box.

As a bonus, length limitations implied by this would probably stop companies creating these ridiculously long agreements that take a law graduate to understand.
 

Trolldor

New member
Jan 20, 2011
1,849
0
0
EULAs and such are specifically designed to discourage you from reading it.
The use of language, the format, the font use, the white background and black text.
Companies know what they're doing, and the 'legal' format of the EULA is designed to stop that vast majority of the public actually looking at what they're supposedly agreeing to.
 

Nurb

Cynical bastard
Dec 9, 2008
3,078
0
0
Past cases with EULAs have shown judges think most of what they say is a bunch of bull and ruled against them because they claim too much power over people.
 

Draconalis

New member
Sep 11, 2008
1,586
0
0
Ultimately it comes down to "I just spent 700 dollars on a product that is almost worthless to me if I don't agree to their terms. There's not point in me reading it because I just want to play my games."

I think that's why most people don't bother to read the fine print, the alternative is that they don't get to make use of the product.

We didn't have these problems back in the day of NES up to PS1 because when we bought our toy, we could play it, and everything it offered. Which is kinda bullshit when you really think about it. I'm spending alot of money, and unless I agree to your draconian rule, I can't use half of it.

Kinda makes me not want to buy future consoles now that I really think about it...

PC gaming from now on! I'm going to own a PC no matter what so... what the hell.
 

Phanixis

New member
May 6, 2010
24
0
0
My biggest problems with EULA is that they are not agreed to upon purchase. First the software is purchased and paid for the then the EULA appears during installation and blocks installation if you reject it. In the case of PC software, if you reject the EULA you cannot get a refund for the software. In effect they on forcing you to accept the EULA after you made your transaction with the software distributor by essentially sabotaging the software you purchased if you choose to reject their terms. This should be illegal.

If software developers want to enforce these EULAs upon us, they ought get our consent at time of purchase.
 

Douglas Heaven

New member
May 9, 2011
8
0
0
It's funny how they even bother with this idiocy anymore, as many people pointed out it wouldn't hold up in just about any court.

So it doesn't protect their interests(people still pirate and hack), we get no chance to see it before purchase of goods, we can't say no or we are deprived of actual use of said goods, and we can't even freaking understand what is said to us because it's in hardcore drow elvish/klingon level legalese.

Good job game/ software companions(this is sarcasm).

One of the biggest things is no one can understand the bloody things.

If you sign a legal document can you not insist the lawyer or such offering you it to translate it, or demand said law worker?

It's so tremendously asinine it's not even funny.
 

PlasticLion

New member
Nov 21, 2009
67
0
0
Well a few weeks ago Sony scared me so I unplugged my PS3 and placed a Bible on top of it. This article made me wonder what the back of a game box says. On the back of the Heavy Rain box it says two interesting things:

"Licensed for distribution in North America and Mexico" Wait what? When did Mexico secede from the continent? Are they part of South America now?

"Software license terms available at www.us.playstation.com/support/useragreements." The EULA is available to everyone before they purchase the game. If you don't have a computer, go to a public library. If you can't read then bring a friend that can. If you don't have any friends, the library is a perfect place to make a new one. I'm sure your mom told you that bars and clubs aren't the best place to meet nice girls/guys, so try to get some digits while your at it. Then again, I doubt someone in a library will be interested if your pickup line is, "I can't read. Will you read this video game license agreement to me?"

Of course I can only speak for the US where public libraries are available. I'm assuming that most countries do. Those that don't probably don't have people that play video games. Or they pirate.

For me the console's software is a bit more of a grey area. If you agree to the EULA that exists when you buy the console then everything I said above applies. You can find the current EULA before you buy a PS3. So if you buy one tomorrow you should know that you can't install other OS's on it. When it updated and changed it was cheap and unfair but it wasn't illegal. Because every version of the EULA should say something like this:

We reserve the right to withhold or cancel(read ransom) online services (online multiplayer, the store, Home)at any time(read until you agree to our next EULA).

I only have a degree in criminal law (and only US at that) not civil law, but what they do sounds legal to me. People do have an opportunity to decline the EULA before they make a purchase.

EDIT: Escapist made me type I AGREE for some weird reason before this would post.
 

Kilyle

New member
Jan 31, 2011
61
0
0
DonTsetsi said:
And it's getting worse. How long until PCs come with agreements not to install a different OS?
A few years back, I went on eBay and hunted down a PC version of Guitar Hero 3. Turns out the game plays like crap on my computer (the lag was killing any chance of my enjoying the gameplay), but hey, a guitar that plugs into my PC that I can use to play free alternative game Frets on Fire! Awesome!

Only, part of the EULA on part of the game tried to say that I didn't have the right to use the guitar controller for anything other than the official game.

Yeah, right. And the next mouse I buy can only be used if I have Windows installed.

That's the point at which I stopped believing that the EULA had the right to govern my actions in the same way a legal contract does. Because they're clearly not worrying about the legal ramifications of their side of the agreement. They're just throwing on whatever scare language they think they can get away with.

ETA: Also, I'm a little miffed at the current system that assumes I have to buy a game console in order to legally play a game disc (that I legally bought) that I can physically make work on my computer. I would be less miffed if the game consoles were making a profit, but from what I've read they're selling everything (except the Wii) at a loss, so forcing me to buy a PSX instead of merely play on an emulator is a pointless legal formality that costs both of us money.

I could throw in the environmental impact of the manufacture of yet another console vs. tranfer of a couple megs of data, but meh.
 

thenumberthirteen

Unlucky for some
Dec 19, 2007
4,794
0
0
Nobody ever reads the small print before agreeing. I remember getting an update on my iPhone, and I had to agree to the licence that was, as I recall, over 50 pages long. Nobody, but a corporate contracts lawyer is ever going to even read that, let alone understand it. I'm pretty sure that only a half dozen people at Apple have read and understood that thing. With such complex and convoluted contract there must be a point where "the agreement" simply becomes void.
 

Douglas Heaven

New member
May 9, 2011
8
0
0
I click agree every time, because if you don't its a major ball ache. If you don't agree with the terms you don't get their shit. End of. Its the way the world works.

And until THIS happens...

http://www.youtube.com/watch?v=DnBj6EeH2N8

I reckon I'll be alright.
 

BloodSquirrel

New member
Jun 23, 2008
1,263
0
0
A few issues here:

#1 a EULA that is presented to me AFTER I buy a product is not legally binding. It isn't anything like a contract; It's the publisher telling me "Now that youv'e bought the game, here are a bunch of thing that I've decided that you agreed to before you bought it."

#2 EULAs aren't contracts in the first place. How do you know that *I* clicked yes? How do you know that I even had the authority to agree to what I agreed with? The Facebook example is perfect for showing the problems with them: what if I uploaded a copyrighted image to Facebook when I didn't even own the copyright in the first place? Can Facebook claim that I gave something to them that I didn't even own?

#3 Possession is 9/10 of the law. A company using an EULA to deny service has to be sued in order to be forced to provide that service. If they wanted to come into your house and actually make you uninstall a game that you didn't need them to activate/run, then nothing they put in their EULA would make that possible.

Justifying a refusal to provide a service is basically what EULAs are for. It's a gray area: You bought a product with an attached service without agreeing on the terms of that service in the first place.

#3 is why any kind of activation-based DRM is bad. You're handing the publisher massive power over you, and you would be naive to think that it will never be abused. You've turned a product (the game) into a service (activating the game), and you don't have any kind of contract detailing what the provider is responsible for.
 

BloodSquirrel

New member
Jun 23, 2008
1,263
0
0
PlasticLion said:
I only have a degree in criminal law (and only US at that) not civil law, but what they do sounds legal to me. People do have an opportunity to decline the EULA before they make a purchase.
If EULAs were actually binding, the game indusrty would have used them to shut down used game sales by now. This is something that has actually been tried and shot down by the courts.
 

mjc0961

YOU'RE a pie chart.
Nov 30, 2009
3,847
0
0
The agreements definitely need to be shorter and in normal English that most people can understand. Even if everyone did bother to read every last word in one of those monstrous walls of text, unless you're a laywer or damn good at translating all that legalese crap into English, you still don't understand a single word of what you're agreeing to, and that probably makes the whole thing suspect as well.

Simply not reading a regular, sensible warning shouldn't be enough to say "this is null and void" though. Case in point, that thing we heard about this week where that guy wants to sue because he ignored the warning about seizures that all games contain and had one. No, to that I say, tough luck man. You should have read the warning first. It's in normal English that's very easy to understand and even contains suggestions on how to reduce the risk of having a seizure. It's also four short paragraphs instead of a humongous multiple page wall. If you ignore that, it's your own fault.

Of course, that bit isn't an EULA either, but my point is that if they write these agreements to be easier to read and shorter, people shouldn't be able to use "I didn't read it" as a fallback point.

There's still the whole "one sided" issue though, and that needs to be addressed too.
 

shiajun

New member
Jun 12, 2008
578
0
0
PxDn Ninja said:
Anytime we buy a new console we buy into the fact that it will stop being supported some day.

While I may not like some of what the EULA's set up for the contract relationship, I am for Sony on this. If you click the "I agree" or "I read" button after the EULA and continue on, you have explicitly accepted the contract. IF you don't like what it says, do not sign it.

I just bought a vehicle and had to sign several contract papers for the loan and such, and I can't claim later if the company stops making parts for the car that I would not have bought it had I known they wouldn't support the vehicle in the future. While nothing is being removed from the vehicle, it still works along a parallel.
It's not exacty the same. When you buy any piece of technology you know that at some point it will be replaced by something else in the future. You shouldn't (and can't) expect for everything to be supported forever. It makes no economic sense. However, the most correct car analogy would be if you rent a car and while the car is still functional and relevant the company you're renting the car from sent some employee to your house and showed you that mandatory maintance is required. Said employee then proceeds to puncture all four tires and then leaves. You shout and scream but there's nothing you could do with the now non-working car and there is absolutely no refund of your payment. In fact, they go one step further and warn you that if you attempt to change the tires yourself they can sue you for tampering with their property. How does any of that make any sense?
 

CrystalShadow

don't upset the insane catgirl
Apr 11, 2009
3,829
0
0
ForsakenUK said:
wouldn't installing another OS stop you from connecting to PSN anyway?

seeing as it would overwrite the current one etc? or would the OS install onto a partition?
From what I remember of it, it's more like the PS3 firmware/OS allowed for dual-booting.
(If you don't know what that means, it's common on PC if you have more than one OS. Instead of the usual startup program that loads the OS, a menu gets installed that loads whatever OS you choose.
One example of such a manu is included with Linux, but amazingly, windows has one too. - It was part of windows NT 4 (First time I came across it anyway), and it meant that if you installed windows 95, then installed windows NT 4.0 after, i gave you the option of installing both, and having a menu at startup. - interestingly, if you installed NT 4.0 first, then tried installing windows 95, you wouldn't get that option, and Windows 95 would simply overwrite Windows NT 4)
 

darth jacen

Sith Reviewer
Jul 15, 2009
659
0
0
That was a very interesting read and I feel more informed for it. Thank you for the article and I may even read one of these agreements next time I am asked to see what injustices I am about to agree to.
 

Roxor

New member
Nov 4, 2010
747
0
0
I think a character limit should be put on licence agreements. They have to fit the whole thing into 255 bytes or they must go without.

The only licence agreement I have actually read from start to finish and actually agreed to is the GPL.
 

Guardian of Nekops

New member
May 25, 2011
252
0
0
I am of two minds about this...

Obviously, the fact that we don't read (and even if we do, that we probably couldn't comprehend the legal ramifications of) these contracts is a large vulnerability for the consumer. One does envision the sort of abuses shown in the Apple/Human Centipede episode of South Park happening, because there's this contract that you're signing and you're not sure what it means.

On the other hand, these companies do have the right to limit their liability. If you set your PS3 up in the middle of a store room of oil barrels and it ends up causing an explosion, they should NOT have to pay for the restoration of the whole block. If you open up the case, they should not have to accept a return on the thing when you break it. They should have the right to shut down the PSN if they're out of money and the company goes under, rather than going into debt to keep it running... stuff like that. Most of the time, the EULA you sign without reading just amounts to that sort of thing, and that sort of demand should hold water in court whether you read it or not.

Also keep in mind the fact that if the court DOES require you to read these things to make them legally binding, that means that companies are actually going to make sure you read them. I'm talking about going through every word of that contract, typing it in YOURSELF, with no copy-pasting allowed, until you have two copies of the thing, or reading it aloud in your own voice... really, that's the only way I can think of to prove someone read it that will hold up in court. And this wouldn't be just for games... expect to have to jump through extra hoops for every other contract you sign, too.

And at the end of the day, the leverage is still theirs. You're still going to come to that point in the language where you have to choose between this feature and the rest of your gaming experience... and what are you going to do then?

How many of us will still sign, after all that hassle, because the only way to play on their system is to play by their rules?