Games as licenses and EULAs

[Austin Manning]

So I keep running into the attitude that when we buy digital and even physical copies of games, we don't actually own them, we just have a temporary license to play them. It's not even among Publishers and Developers anymore, but gamers who are sharing the opinion. All I can think of is: what? Who decided this? Who signed off on it? I don't remember signing a contract stipulating that I was only renting that game for $60.

But!!! I hear some of you exclaim... "You signed an EULA, which stipulated that it was a license!" To which I reply "I signed nothing!" and I mean it too. I have never signed a sheet of paper in the presence of a witness as part of a deal between me and any publisher/developer.

This something that's been bugging me for a while: how legally binding are EULAs exactly? I mean, you don't actually sign any of them, it's just a button press. For all the company knows, I may have left the room to use the toilet and my new puppy might have just pawed at the controller. Also, what if it's a child who buys the game? I'm fairly sure that a minor's signature isn't legally binding in most nations.

Thoughts?

 

[Zontar]

Well for physical copies it's simple, you own the physical disk and the data on it is the license for it. In all practical terms you own it, but the data is still technically on lease.

Now for digital, however, THAT is where it gets into a legal gray zone. In most cases it's simply you own a licence but not the game, however laws, primarily those of the EU, are changing this in a slow proses of moving towards owning a licence to owning the actual game. It's mainly a case of the laws being behind the technology, and so lawmakers are trying to play catch-up.

 

[Something Amyss]

But!!! I hear some of you exclaim... "You signed an EULA, which stipulated that it was a license!" To which I reply "I signed nothing!" and I mean it too. I have never signed a sheet of paper in the presence of a witness as part of a deal between me and any publisher/developer.

I don't know the rules in Canadia, but several countries (US included) have actually made clicking "I accept" or whatever as legally binding as signing your name. Hiding behind the technicality that you didn't litrally sign something isn't necessarily protection.

 

[Nimzabaat]

Basically since there has been software available to consumers it has been licensed. DRM is as old as floppy disks (I mean true floppies, not the 3.5s). The means of enforcing it in the old days was pretty primitive. I'm old enough to remember needing the books for games because there was code words or pictures in the manual that you'd have to enter to keep playing. DRM-free is a really new concept, and a PC exclusive one I might add. It's a common misconception that DRM and EULA's are a "new" thing when we've been living with them the whole time.

As to how legally binding is a EULA? About as binding as copy protection legislation (music, dvds etc). If someone wants to go after you for jail-breaking your console or pirating software they can, and it can be very expensive, but it's pretty unlikely.

 

[Austin Manning]

I don't know the rules in Canadia, but several countries (US included) have actually made clicking "I accept" or whatever as legally binding as signing your name. Hiding behind the technicality that you didn't litrally sign something isn't necessarily protection.

Really? That's a pity. You'd think someone would have raised at least one of the issue I mentioned when they were debating making that a law.

 

[Angelowl]

It depends a lot on where you live, to my knowledge a EULA is not valid as a contract here in Sweden. Mostly because it does not live up to the requirements of a legal contract. Partly because of the reason you mentioned, clicking a box is not enough unless they require you to use some form of digital ID. Making the text as convulated as possible does not help their case either.

Then we have the fact that the laws trump any sort of license agreement and it is not the companies but the courts who decide what is a product and what is a service. We have inalienable rights in this country, including the right to do whatever you want with a product you bought and payed for. Cracks are 100% legal as there are legal use for them.

It is less about the companies and more what the governments let them get away with, consumer rights are a legal matter and defined by the powers that be.

 

[MeChaNiZ3D]

Well, not signed, but you clicked a button that said "I have read and agree to the terms and conditions" without having done so so you could install the fucking game at long last, but yeah, apparently a long time ago they started making games licenses instead of products and nobody cared because it was functionally the same, except now publishers are cashing in on that whole angle to tell us we don't own our games. Really, if we were going to object, we should have done it a long time ago, but now we really can't because it's been a slow creep.

 

[zumbledum]

So I keep running into the attitude that when we buy digital and even physical copies of games, we don't actually own them, we just have a temporary license to play them. It's not even among Publishers and Developers anymore, but gamers who are sharing the opinion. All I can think of is: what? Who decided this? Who signed off on it? I don't remember signing a contract stipulating that I was only renting that game for $60.

But!!! I hear some of you exclaim... "You signed an EULA, which stipulated that it was a license!" To which I reply "I signed nothing!" and I mean it too. I have never signed a sheet of paper in the presence of a witness as part of a deal between me and any publisher/developer.

This something that's been bugging me for a while: how legally binding are EULAs exactly? I mean, you don't actually sign any of them, it's just a button press. For all the company knows, I may have left the room to use the toilet and my new puppy might have just pawed at the controller. Also, what if it's a child who buys the game? I'm fairly sure that a minor's signature isn't legally binding in most nations.

Thoughts?

well Eula's in most of europe are binding but they also dont allow for infringing on rights so most of what eula's say often doesnt have any legal weight , for eg even if i sign a eula that says i dont have my consumer rights from the sales of goods and services acts those laws are above the eula and infact will still apply.

you have a choice no ones forcing any method of consumption on you. Maybe things should of been explained to you clearer but im not sure we want the seller to have the weight of informing us as theres clear conflict of interest.
personally i prefer actually prefer this DD method of licencing, the advantages massively outweigh the costs FOR ME so i choose to buy everything i can digitally. but then i educated myself on what i was buying before i did so

 

[Atmos Duality]

Then we have the fact that the laws trump any sort of license agreement and it is not the companies but the courts who decide what is a product and what is a service.

It is less about the companies and more what the governments let them get away with, consumer rights are a legal matter and defined by the powers that be.

^This.
In the US, "consumers rights" for games (most software) is virtually non-existent.
The only implicit right is First Sale and even that is limited to physical media.
(and there are ways around first sale, which is a big part of why more and more games are being sold with online requirements)

There is no law that enables or requires refunds or returns for games.
There is no law that requires games to even function at all, let alone as advertised.

Food for thought, at least for the US gamers.

ASIDE: Apparently Solve Media is only obsessed with my grocery shopping habits now. This is like the 6th one of those in a row. I thought these were a necessary evil for stopping bots. If there is no wrong answer, how does this stop an automated program?

 

[RedBackDragon]

Big part of the reason i completely got out of consoles was the EULA and User agreements , like microsofts dilightfull lil poodle turd of a agreement that states i dont own any of the games i am only renting them and that microsoft can do what it wants when it wants without telling you and theres jack you can do about it , which in pratice eneded up with m-soft claiming that i owed them $11 they then locked my account out and blocked my console from live.. it took me 6 months and numerous emails to get them to conced that i did not infact owe them jack and at the end of all that they did not so much as say sorry.

Then theres steams agreement that states that i canot sue steam or valve and that if i do try i imeadtly conced that they win :/ ofcousce that is completely illegal and a violation of the rights i have as a citizen of australia and as far as i am concerned that agreemeant should be treated as treason because they are basicly telling my nation that their cizizens can go get stuffed.

do feel free to check section 12.DISPUTE RESOLUTION/BINDING ARBITRATION/CLASS ACTION WAIVER of the steam sub agreement

http://store.steampowered.com/subscriber_agreement/

"YOU UNDERSTAND THAT YOU AND VALVE ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY." for example...........

but yeah safe to say GOG is where alot of my monney and trust is going , along with dotemu and desura.

 

[Nimzabaat]

Cracks are 100% legal as there are legal use for them.

Actually if cracking was even 1% legal there would be a legal term for it. That's like saying piracy is 100% legal because people want the software (hint, it's not)

 

[Angelowl]

Cracks are 100% legal as there are legal use for them.

Actually if cracking was even 1% legal there would be a legal term for it. That's like saying piracy is 100% legal because people want the software (hint, it's not)

If it is a product bought and paid for then you are free to modify it to your hearts content, as long as it stays in your hands. No disk mods are perfectly reasonable for example.

The comparison is inapt, torrenting is perfectly legal. Distributing material you do not legally own is not.
If a DRM keeps you fram playing a game that you own, then you are free to fix it. Companies do not own the right to force customers to use a product a certain way. Of course, it gets a bit murky with digital distribution as the rules for services are different.

 

[DoPo]

Cracks are 100% legal as there are legal use for them.

Actually if cracking was even 1% legal there would be a legal term for it. That's like saying piracy is 100% legal because people want the software (hint, it's not)

If it is a product bought and paid for then you are free to modify it to your hearts content, as long as it stays in your hands. No disk mods are perfectly reasonable for example.

Yet, you haven't bought a product but the rights to use the product.

The comparison is inapt, torrenting is perfectly legal.

The comparison was not about torrenting.

Distributing material you do not legally own is not.

That is called "piracy". Which is what the comparison was about. Therefore, you just agreed it is apt.

Companies do not own the right to force customers to use a product a certain way.

Actually, you just described what the entire point of DRM is.

 

[Strazdas]

Games are products. Products are bought. When you buy a product you own it and can do anything you want with it except illegal things.
Sadly gaming industry is the only one that gets away with holding our products hostage and even manages to win courts against them.

This something that's been bugging me for a while: how legally binding are EULAs exactly? I mean, you don't actually sign any of them, it's just a button press. For all the company knows, I may have left the room to use the toilet and my new puppy might have just pawed at the controller. Also, what if it's a child who buys the game? I'm fairly sure that a minor's signature isn't legally binding in most nations.

Thoughts?

They are legally binding in US for whatever greedy reason that corpoations have. Technically they cant supersede consumer laws, in practice - they do.
They are not legally binding in any form anywhere else[footnote]this stuff can warry as i dont know african law for example, but the only place we hear it being legally binding is US and sometimes canada[/footnote]. In order to EULA or TOS to be legally binding it needs to be signed on actual paper or your your electronic signature (the one the government issues you) BEFORE the point of sale. any license added after the sale (like EULA during instalation) is null and void according to european law.
i am not certain how a child buying it would affect the legality, considering that in US it is technically legal to sell R rated games to any age (even though noone does it).

In most cases it's simply you own a licence but not the game, however laws, primarily those of the EU, are changing this in a slow proses of moving towards owning a licence to owning the actual game. It's mainly a case of the laws being behind the technology, and so lawmakers are trying to play catch-up.

Nothing is "changing" in EU. the laws regarding ownership of software always were like that. Its just that finally somone decided its worth enforcing them.

As to how legally binding is a EULA? About as binding as copy protection legislation (music, dvds etc). If someone wants to go after you for jail-breaking your console or pirating software they can, and it can be very expensive, but it's pretty unlikely.

noone can legally go after you for breaking EULA. This is why creating bots and trainers for games is not illegal. This is why companies cannot (im looking at you EA) dictate what we can and cannot mod.

Really? That's a pity. You'd think someone would have raised at least one of the issue I mentioned when they were debating making that a law.

your assuming people making that law ever played a videogame.

Well, not signed, but you clicked a button that said "I have read and agree to the terms and conditions" without having done so so you could install the fucking game at long last,

that is not legally binding though. i can say i agreed to go home by food today and then dont and you cant sue me for that. only if i sign a legal contract that i will go on foot you can sue me.

you have a choice no ones forcing any method of consumption on you.

Can i buy modern PC games without using steam DRM? no? then they are forcing single method of consumtion.

Actually if cracking was even 1% legal there would be a legal term for it. That's like saying piracy is 100% legal because people want the software (hint, it's not)

Cracks are legal. Cracks are modification of software. we have a legal word for it - mods. Crack is as much legal as your weapon skin mod in a game. This is also why jailbreaking phones and consoles is legal.
What is not legal is to download copyright material, which a reason some people use cracks for - running said material. This is like torrent traffic. Torrent trafic is legal, in fact a lot of MMOs use torrent distribution of their client files (or rather used to, for some reason they dont do that so much anymore, i blame high bandwitch of steam downloads). there are plenty of legal stuff (books, music, software) you can download via torrents legally. for example - linux OS.
I dont have the email as it was 8 years ago, but once after talking to some game support person about SecuRom DRM beign fussy about my CD drive and not allowing me to play they actually linked me to a crack and told me just to use that and the game will work. Wont see companies do that anymore though, now they would call you a filthy pirate and ban you because how dare you complain their DRM doesnt work.

That is called "piracy". Which is what the comparison was about. Therefore, you just agreed it is apt.

Cracks =/= piracy

 

[FoolKiller]

Well for physical copies it's simple, you own the physical disk and the data on it is the license for it. In all practical terms you own it, but the data is still technically on lease.

Now for digital, however, THAT is where it gets into a legal gray zone. In most cases it's simply you own a licence but not the game, however laws, primarily those of the EU, are changing this in a slow proses of moving towards owning a licence to owning the actual game. It's mainly a case of the laws being behind the technology, and so lawmakers are trying to play catch-up.

I have a piece of paper on my hard drive stating that ownership rights to anything stored is given to the owner of the physical hard drive and that by allowing the download to said hard drive, the previous owner is consenting to the transfer of rights.

And please, no one try to explain why its different to me. I find it amuses me and if I go to court I will at least have some fun with it.

Also, if you want to give them fits ask them to replace any damaged discs for you. You will pay the cost of the disc (approximately 20 cents) and shipping but as you have paid for the license you shouldn't have to pay the retail cost again. I'm waiting for this one to surface one day and see how they deal with it.

 

[DoPo]

That is called "piracy". Which is what the comparison was about. Therefore, you just agreed it is apt.

Cracks =/= piracy

Would you mind reading that again

That's like saying piracy is 100% legal because people want the software (hint, it's not)

and point out at which point was I addressing cracks?

 

[Strazdas]

That is called "piracy". Which is what the comparison was about. Therefore, you just agreed it is apt.

Cracks =/= piracy

Would you mind reading that again

That's like saying piracy is 100% legal because people want the software (hint, it's not)

and point out at which point was I addressing cracks?

One person was speaking about cracks. Another incorrect compared it to piracy. When somone pointed this out you wrote the quoted part.

Also, if you want to give them fits ask them to replace any damaged discs for you. You will pay the cost of the disc (approximately 20 cents) and shipping but as you have paid for the license you shouldn't have to pay the retail cost again. I'm waiting for this one to surface one day and see how they deal with it.

Its been tried. their response was akin to "too bad, buy another".

 

[SinisterGehe]

The code belongs to the developer, the disc and such you can own. But media in it is theirs. At least this is what Finnish law states.
But hey... I have stopped complaining about 60? game titles and do I own them or not after I had to buy 600? and 1000? software licenses for my work.
And according to the terms to which I signed to "Digitally" by purchasing the licenses. I own a copy of the software, I can store and use it as I wish, but all the media, technology and code belongs to them, which I am not allowed to share, copy or modify for my own purposes.
This sounds odd but I checked this with my father's company's legal dude (Whatever his title is supposed to be) is that the whole packet that the installer and .exe contains are mine. But the code is not. I am only allowed to make addons and modify the code that is on certain "access level" to the program (There is addon/mod section for it in the core program).

The whole contract was pages long and I ran through it by people who know what it means so I know what I am agreeing to. And I was ok with the terms.

But!!! I hear some of you exclaim... "You signed an EULA, which stipulated that it was a license!" To which I reply "I signed nothing!" and I mean it too. I have never signed a sheet of paper in the presence of a witness as part of a deal between me and any publisher/developer.

This something that's been bugging me for a while: how legally binding are EULAs exactly? I mean, you don't actually sign any of them, it's just a button press. For all the company knows, I may have left the room to use the toilet and my new puppy might have just pawed at the controller. Also, what if it's a child who buys the game? I'm fairly sure that a minor's signature isn't legally binding in most nations.

Thoughts?

Digital signature is as legally valid and binding as any other agreement. Specially if it is connected to any piece of identification, phonenumber, ID, name, signature, account name... You get the idea. Even oral agreements made front of a witness or recorded is legally binding. (At least by Finnish law and EU standards).

Well if you are a minor you are not allowed to do such contract, this is in the law. But if you do make such contract it is the guardians fault. Basically the contract's terms can not be pressed upon you if you are under 13. And breaking term of contract is not criminal if you are under certain age (15 in Finland). But you guardian can be held accountable for your actions. (Depending on the local law to what extend)
But if you are minor, the generally quite universal idea in Western law is that, you need to consult your guardian, if you don't then it is the guardians fault that you didn't.

Also shops/retailers are not allowed to sell to minors if the game has a contract like that (it is marked on the box if there is) if they sell it to minor it is according to EU standards a criminal act.
On internet there is a reason you need to have a credit card/debit card to purchase ANYTHING. Even Paypal is required to ask for age verification in some countries. Because at least in EU you can not have a card if you are not in a legally binding age. Banks are not allowed to give you one. So that is why it can be used as age verification and digitally sign contracts.
Some banks offer minor cards that are tied to parents accounts but by law usually you can not use it online (Visa does this for example - you can only have a Visa electron that works online if you are over the local legal age (18 in FInland for internet purchases))

Of course kids will always find loopholes but it will always fall to the guardians to make sure they don't do anything illegal - it is called parenting.

 

[Nielas]

that is not legally binding though. i can say i agreed to go home by food today and then dont and you cant sue me for that. only if i sign a legal contract that i will go on foot you can sue me.

Ever hear of a verbal contract? They are just as binding as a written contract. They are simply not given the same weight since they are extremely hard to prove without having witnesses. It is also why many jurisdiction require certain types of contracts to be written down and signed (eg real estate sales) since these types of contracts are deemed to be too important to be in a verbal form.

If I tell you that I will pay you $100 for mowing my lawn and you accept the offer, we have a legally binding contract and you can sue me if I refuse to pay after you mowed the lawn.

 

[Nimzabaat]

Cracks =/= piracy

That's like saying giving someone the date-rape drug =/= rape. Mods are legal. "Cracking" is the term for illegally removing the copy protection from something. The legal terms for things tend to be more boring.

Examples:
Logging in with your username and password = legal / hacking = illegal
Removing the copy protection with the permission of the softwares owners (ala GoG) = legal / cracking = illegal
Consensual sex = legal / rape = illegal

People who want to see it as a "grey area" are usually standing in the dark.