305: Self-serving Small Print

SinisterGehe

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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

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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

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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

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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

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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

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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

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Apr 1, 2004
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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
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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

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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

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Mar 24, 2009
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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

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May 7, 2009
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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

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Apr 18, 2009
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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

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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

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Oct 5, 2010
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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

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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

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Dec 9, 2008
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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

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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

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May 6, 2010
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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

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May 9, 2011
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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.