Guy Jackson said:
I thought an EULA couldn't override the law? At least I'm pretty sure that's how it is here (UK). If I agree to an EULA that contradicts my consumer rights, my consumer rights have priority - they override the EULA. Similar to how if person A signs a contract that says person B my murder him, the murder would still be illegal; the law overrides the contract. Right?
Yes and no. IANAL obligatory hand-waving. As a rule you're not far off. Certainly UK consumers are better protected than most.
UK case law is sketchy on the subject specifically of shrink-wrapped or equivalent EULAs. However, the general perception is that the following is legally enshrined re your usual UK consumer rights (this is no way gospel):
If you open a game and discover that the EULA that you just were asked to agree to (because you couldn't read the full terms on the box) is not satisfactory, you are entitled to return & refund the game (because the EULA and the reading of it concludes the contract, and if you don't agree with it, there is no contract and thus you have every right to your money back). The EULA cannot in any way state you are not allowed a refund in such a case. The retailer might, but would be on distinctly shaky ground to outright refuse because the contract is not complete.
If a EULA attempts to cover things that are otherwise covered by existing law, then usually that is also thrown out. For example, copyright infringement clauses in a EULA are pointless, because UK unlawful copying laws supersede them, prosecutions have been brought etc. Equally a company saying 'we must have these clauses in the EULA to protect our business' comes under great scrutiny because it would be argued that UK law already protects business interests (see above).
If a publisher waives liability in a EULA they are usually ok to do so up to a point, but that's not to the extent of 'you bought it, sucks to be you'. The product must always 'live up to expectations'. Plenty of games have been taken back and lawfully refunded when, after a few days & reasonable attempts on the part of the user, the game just doesn't work as expected. That in this case it's that Blizzard's servers suck is irrelevant - the contract was money exchanged for a working game experience, and was not delivered upon. The contract cannot be changed after the event to state 'trust us, it will get better later'.
A lot, as they say, is up to individual case law.
Equally, nothing in a EULA can change the agreement between you and a retailer. If you buy a game online from a UK retailer and are thus covered by the Distance Selling Regulations, you can expect to cancel the contract up to 7 days after the receipt of goods, no questions asked, end of story, do not pass go. They might charge you a restocking fee (provided their cancellation terms state that on the website when you bought it), but nevertheless, you can return the item for a refund.
I have absolutely no idea what South Korean law says, but legal officials don't raid offices on a whim. They will have had to obtain permission and justification will have to have been brought. I imagine therefore that in this case Blizzard's legal team dropped the ball in surmising they could outright refuse refunds.
I would look at the specifics like this:
A user cannot purchase Diablo 3 in advance, and have a guaranteed perfect game experience known a priori. They must take the game home, install it, try it on their net connection, and only then do they get to see if it works.
As such, the provision of a product that is contingent on all those factors can only enter into a contract for purchase provided that the contract is null & void if those factors prevent product use. You cannot sell a product that cannot be used otherwise it is not a valid contract to begin with, based on the legal principle of consideration.
Thus if you determine that your net connection is insufficient for D3 to work correctly, or that Blizzard have not provided you with a suitable experience due to massively overloaded servers, they have not lived up to their end of the contract. Money was not provided as a gift, it was for a received product. It must be usable as intended and that intent is determined by both parties, not by one only. That is the essence of an agreed contract.
