EULAs: How the fuck do they work?

[Lilani]

I've been pondering on this a lot lately, and I'm hoping somebody here can explain it to me. Basically, I can't figure out how publishers get away with having us see and agree to the EULA of a game after purchase.

See, as I understand it, the EULA is the license agreement you are supposed to agree with in order to install and use the game. Digital distribution is also explained this way: You aren't buying the game itself, you are buying a license to use the game according to the terms given by the publisher and agreed upon by you.

But here's the thing. When you buy a physical game, where is the EULA? It's on a piece of paper in the box, or on the disc during installation. The box that you can't open to see this piece of paper or disc until after you've purchased it. And in the case of PC games, the box that when you've opened it, you can no longer return it for a refund. You are being sold a license you are supposed to agree with before you've even been allowed to see the license to decide if you agree with it.

And on the outside of the box, at least on the PS2 games and PC games I've looked at (shut up, I have no modern consoles) there is nothing on the outside that says that by purchasing the game you have not yet read or agreed to the EULA, which you must agree with in order to use the license. Not even a warning that at the point of purchase, there are still terms and conditions of use you haven't seen. Even DVDs will tell you on the outside of the box that you can't copy them or charge for public viewing, the same warnings on the disc you watch every time you run them.

And with digital games it's the same way. You don't see the EULA until you're installing it, and there are NEVER refunds for those. It makes no sense: you are buying a LICENSE to use the game. Yet the agreement of use, the END USER LICENSE AGREEMENT, is never shown to you until after you've given the publisher your money. That would be like renting an apartment to somebody, but making them pay the rent for their entire stay before they even get to see or sign their leasing contract--no refunds and no backing out if they decide they don't like the terms.

How is this even legal? The way I see it, if publishers are going to continue with this "you aren't buying the game, you're buying the license" shit, they're going to have to market them as such, and show us the terms of those licenses BEFORE we pay. Anything less would be false advertising and entrapment.

Unless I am misunderstanding. If anybody around here sees something I'm missing, please feel free to inform me.

So...discussion: How is this legal, why do we put up with it without question, and what should we do about it?

Captcha: sonic screw driver. Captcha is a Whovian?!? Or knows I'm one?!?! Dafuq?!

 

[SajuukKhar]

In terms of EULAs legality they are perfectly legal... in America.... and they are actually illegal by the laws of several European nations, but no one ever cares enough so they aren't made to go away.

However the legality of EULAs in America also depends on what court circuit it is brought before, as several court circuits find then illegal, and some dont.

 

[veloper]

Easy enough. EULA's simply do NOT work.

No publisher will sue some poor gamer over modding their games and installing it on two computers and other stuff the EULA says you can't do. Shrink wrapped EULAs in games will remain untried as such.

The only thing that matters here is what a company can actively do to you without interference. Blizzard can shut down your battlenet account at any time and EA can take away all your games on Origin whenever they feel like it.

For games that come with less DRM, nothing is stopping you the player from doing anything you want. EULA's are a worthless paper shield.

 

[SajuukKhar]

For games that come with less DRM, nothing is stopping you the player from doing anything you want. EULA's are a worthless paper shield.

EULAs are not entirely worthless as several courts have ruled that they are legal, again it all depends on what court circuit the trial goes to.

 

[Seishisha]

Essentialy most EULA's come down to you agreeing not to reverse engineer the tech behind the game, not to use third party software that could hack the game etc, its not realy an agreement of rights to play the game because you've already purchased so you have that right, its more a set of rules you have to convene to whilst playing and ofcourse if you get caught breaking those rules then the company is within its rights to ban you etc, as you've already agreed not todo those things in order to play.

As for the question of its legality im sure its perfectly legal, if it wasnt then companies could loose millions in lawsuits, in my opinion people put up with EULA's because they want to play the product, as for a measure against it, i guess do some research on the title first, check if there is an EULA, if you find issue with what the EULA require's then dont buy the title.

 

[Lilani]

As for the question of its legality im sure its perfectly legal, if it wasnt then companies could loose millions in lawsuits, in my opinion people put up with EULA's because they want to play the product, as for a measure against it, i guess do some research on the title first, check if there is an EULA, if you find issue with what the EULA require's then dont buy the title.

But that's the thing. Why do I have to do prior research to find out if there's an agreement before I purchase something? If the agreement has such legal significance, then why am I not shown it up front to agree with? I shouldn't have to Google search and email prior renters to see the leasing agreement for an apartment I'd like to rent. I should be shown that agreement up front prior to paying a dime. It shouldn't be something that illusive, and it shouldn't be something that legally binds us if they made no effort to make it known to us prior to paying our good money.

 

[Seishisha]

Ok then, perhaps your not shown the EULA before purchase because, retail and even digital products have limited advertising space, the companies don't want people to have to wade through paragraphs of text to read about the game, what they want is people to see it, read about the features and buy on impulse, i can't realy imagine going into a store or buying a title from steam and basicly having a wall of text to navigate in order to find the system specs or key features.
I guess companies should be more upfront with this sort of info and there isnt realy a reason why the products webpage shouldnt have a section for it, but at the end of the day EULA's are not exciting and they definatly arnt the reasons why people buy the games, i honestly can't realy see a way around this problem in retail because as i said limited advertising space on a boxed copy, services like steam could certainly host the information or atleast links to it but again its still ad space essentialy. Im just gonna guess 90% of the time people skip the EULA and just press accept anyway, so would it be worth displaying all that info that most people are just going to ignore anyway?

I don't think i can realy clarify it any better, asuming i did that at all with my rambling, essentialy its not shown because its considered trivial informtion, and although it probably does have some legal significance it doesnt tell you about the product so it would be a waste to put it on the box/steam store page.

 

[Esotera]

What I've never understood is why companies who want to release proprietary code produce a couple of standard EULAs that afford the user/company different rights.

The open source community has the GPL, BSD, Apache, and Creative Commons licenses, and the vast majority of material is licensed under one of these. You instantly know what you're getting when using an unfamiliar product with these, so you don't need to read the license text each time. I don't think I've ever seen two mainstream game companies use the same EULA.

I think the current way EULAs are given means that they aren't actually binding, particularly as they are very one-sided as a contract. No-one enforces this though.

 

[Lilani]

Well because customers are well... lazy...


You can read it up front. They flash it after every big patch in WoW.

But people dont want to. They want to pay their 50$ and get on with it.

Most of the stuff in there is pretty common knowlege like "dont hack our files" and the major stuff is often printed on the box. 80% of the stuff you will be reading wont be affecting you if you have a working brain.

You've missed my point. It's not laziness on my part for not being aware of an agreement if it was not anywhere on the outside of the physical product I cannot legally open until after purchase, and if it was not made known at the point of purchase. It's laziness on their part for not putting it on the OUTSIDE of the box or making the agreement known BEFORE purchase. I cannot be aware of terms and conditions I'm supposed to agree to if they are not there before the point of purchase. Prior research should never be a REQUIREMENT to be fully aware of the terms behind your purchase. If it's not made loud and clear and prior to purchase, it's not legal. If McDonalds is required to put CAUTION - HOT warning on the outside of their coffee cups, surely video game publishers should be required to put their EULAs (or at LEAST a mention of their existence) on the outside of their games.

And if you think EULAs are just to tell people to not hack files, then clearly you haven't read up on EA's EULAs as of late. Check out this, from the Battlefield 3 EULA [http://www.rockpapershotgun.com/2011/08/24/eas-origin-eula-proves-even-more-sinister/]:

You agree that EA may collect, use, store and transmit technical and related information that identifies your computer (including the Internet Protocol Address), operating system, Application usage (including but not limited to successful installation and/or removal), software, software usage and peripheral hardware, that may be gathered periodically to facilitate the provision of software updates, dynamically served content, product support and other services to you, including online services. EA may also use this information combined with personal information for marketing purposes and to improve our products and services. We may also share that data with our third party service providers in a form that does not personally identify you. IF YOU DO NOT WANT EA TO COLLECT, USE, STORE, TRANSMIT OR DISPLAY THE DATA DESCRIBED IN THIS SECTION, PLEASE DO NOT INSTALL OR USE THE APPLICATION.

Battlefield 3 was made available through Origin. Meaning if people purchased the game, saw this, and didn't want EA to be rooting through their non-Origin applications and files on their computer, they could not get a refund. Funny thing--you can disagree with the contract, but not get your money back. You can pay in full without having a clue what you are expected to agree to. Tell me how that is legal. And if it's legal, tell me if it should be.

 

[SajuukKhar]

You've missed my point. It's not laziness on my part for not being aware of an agreement if it was not anywhere on the outside of the physical product I cannot legally open until after purchase, and if it was not made known at the point of purchase. It's laziness on their part for not putting it on the OUTSIDE of the box or making the agreement known BEFORE purchase. I cannot be aware of terms and conditions I'm supposed to agree to if they are not there before the point of purchase. Prior research should never be a REQUIREMENT to be fully aware of the terms behind your purchase. If it's not made loud and clear and prior to purchase, it's not legal. If McDonalds is required to put CAUTION - HOT warning on the outside of their coffee cups, surely video game publishers should be required to put their EULAs (or at LEAST a mention of their existence) on the outside of their games.

Actually many games have text on the back of the box that says something along the lines of "software is subject to licensing agreement", it is usually in the fine print part on the back.

I know they are on the ME1, NWN diamond edition, Fear 2, and several other game boxes I own.

 

[Lilani]

You've missed my point. It's not laziness on my part for not being aware of an agreement if it was not anywhere on the outside of the physical product I cannot legally open until after purchase, and if it was not made known at the point of purchase. It's laziness on their part for not putting it on the OUTSIDE of the box or making the agreement known BEFORE purchase. I cannot be aware of terms and conditions I'm supposed to agree to if they are not there before the point of purchase. Prior research should never be a REQUIREMENT to be fully aware of the terms behind your purchase. If it's not made loud and clear and prior to purchase, it's not legal. If McDonalds is required to put CAUTION - HOT warning on the outside of their coffee cups, surely video game publishers should be required to put their EULAs (or at LEAST a mention of their existence) on the outside of their games.

Actually many games have text on the back of the box that says something along the lines of "software is subject to licensing agreement", it is usually in the fine print part on the back.

I know they are on the ME1, NWN diamond edition, Fear 2, and several other game boxes I own.

Many, but not all. It's not a requirement. I don't see it on my copy of Viva Pinata. And that still leaves the problems of digital purchases in which you aren't given the EULA until after purchase.

 

[SajuukKhar]

Many, but not all. It's not a requirement. I don't see it on my copy of Viva Pinata.

The reason why Mcdonalds, and coffee places in general, are required to put HOT labels on their coffee is because some idiot ordered coffee, apparently didn't think it was hot, and then spilled some on themselves, and used it to sue whatever coffee place it started with.

In short is was an idiot being an idiot, then blaming the coffee places for his own idiocy.

The most likely reason why a EULA warning isn't required is because
1. Everyone knows all software has a EULA
2. No one has been dumb enough to complain about something 99% of the populous already knows.

I fully except that some time in the future some idiot will do something idiotic, then blame software companies for his idiocy, and then EULA warning will be required on all software.

I pray that wont happen because we already have enough cases of consumers winning legal battles that should rightly be only blamed on their own idiocy, but knowing America, as it will most likely come from America, it will happen one day.

 

[targren]

Disclaimer: I am not a lawyer.

In the cases that affirm the binding nature of EULAs in the US, it seems to rest on one very stupid decision.

The claim was that loading a piece of software from secondary storage (hard drive/CD Rom) into memory, which is required for the computer to actually run the software, constituted making a copy and thus was copyright infringement unless permission was granted to make that memory copy. The document that granted that permission is the EULA, which does so in exchange for all of the other abusive clauses.

 

[Lilani]

Many, but not all. It's not a requirement. I don't see it on my copy of Viva Pinata.

The reason why Mcdonalds, and coffee places in general, are required to put HOT labels on their coffee is because some idiot ordered coffee, apparently didn't think it was hot, and then spilled some on themselves, and used it to sue whatever coffee place it started with.

In short is was an idiot being an idiot, then blaming the coffee places for his own idiocy.

The most likely reason why a EULA warning isn't required is because
1. Everyone knows all software has a EULA
2. No one has been dumb enough to complain about something 99% of the populous already knows.

I fully except that some time in the future some idiot will do something idiotic then blame software companies for his idiocy and then EULA warning will be required on all software.

I pray that wont happen because we already have enough cases of consumers winning legal battles that should rightly be only blamed on their own idiocy, but knowing America, as it will most likely come from America, it will happen one day.

I still don't see how it's idiocy on my part when I can't see the contract I'm expected to agree to in order to use it until I've purchased it and am beyond the point of getting a refund, as is the case in digital and PC purchases.

 

[SajuukKhar]

Disclaimer: I am not a lawyer.

In the cases that affirm the binding nature of EULAs in the US, it seems to rest on one very stupid decision.

The claim was that loading a piece of software from secondary storage (hard drive/CD Rom) into memory, which is required for the computer to actually run the software, constituted making a copy and thus was copyright infringement unless permission was granted to make that memory copy. The document that granted that permission is the EULA, which does so in exchange for all of the other abusive clauses.

The cases I know about didn't use that, what case are you talking about?

 

[nu1mlock]

I guess it depends on the laws in the country you live in. EULAs aren't illegal in Sweden (EU), but they can't "contract away a law".

You're also allowed to return the product after you've opened it if you didn't agree with the contract itself. The STORE, however, might deny it, but they can't. They will most probably try though and hope that you don't know better.

But that's just here in Sweden.

 

[SajuukKhar]

I still don't see how it's idiocy on my part when I can't see the contract I'm expected to agree to in order to use it until I've purchased it and am beyond the point of getting a refund, as is the case in digital and PC purchases.

Most game's EULAs can be found online via a simple Google search, furthermore that EULAs are such common knowledge, one should be expected to do research on the product before they buy it.

Just like one should know coffee is hot, and expect it to be hot, without someone telling them.

 

[targren]

The cases I know about didn't use that, what case are you talking about?

I don't remember the citation... But I think it was MAI v. Peak.

 

[Vegosiux]

Most game's EULAs can be found online via a simple Google search, furthermore that EULAs are such common knowledge, one should be expected to do research on the product before they buy it.

Not an excuse. If you want to run a professional busines, behave professionally and show some common business courtesy. I don't care that an EULA is on google, I should not be expected to go out of my way to search for it. Just like I'm not expected to "look up" any other contract I sign, both parties to the contract (or their authorized representatives) should be present at the time it's signed.

And besides, if I never agreed to it, I can't violate it either, so it's actually in the seller's interest to have me agree to it somewhere they can make sure I agreed to as opposed to bypassing it.

But tell me, if you buy, say, a new cellphone, are you going to accept "Oh and the reciept and the warranty card are somewhere on the net, look them up"?

 

[Owyn_Merrilin]

Answer: it's not legal, but the American system is set up in such a way that "case law" often has more weight than the actual law. EULAs are illegal, but the judicial branch can't seem to figure that out, especially not with all the well paid lawyers flashing shiny objects in front of the drooling old farts on the bench, old farts who don't know a thing about technology. In the rest of the world, EULAs generally don't fly.