305: Self-serving Small Print

[PlasticLion]

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]

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]

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.

 

[BloodSquirrel]

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]

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.

 

[Mumonk]

And people wonder why there is piracy? =P

 

[mjc0961]

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]

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]

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]

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]

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]

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?