305: Self-serving Small Print

JDKJ

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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

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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

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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

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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

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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.
 
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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

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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

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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

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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

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Ive never thought of these things to be legally binding it just doesnt make sense to.
 

Ipsen

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.