Evil Tim said:
XBox Live is not a physical good, it's a service. Services mean big contracts; think lease documents, mortgages, credit agreements. If you're offered a contract, don't bother to read it and sign it, that's entirely your problem. If the contract you signed says you have given permission for it to be modified without your further explicit agreement, that is also your problem. You'd get the same if you just nodded your way through agreeing to a loan and then suddenly decided you didn't like the interest rate.
XBL is a service, true. However, I meant software licenses in general. Buying a standalone game or piece of software is much more akin to buying a typical physical good than to receiving a service (in many states software is even explicitly defined as a good, not a service). As for contracts, I have never had a lease agreement, credit agreement, etc. nearly as long as many of the EULAs I've agreed to. Software routinely comes with EULAs that are more akin to novels than they are typical contracts. Moreover, the majority of the contracts you mention involve very substantial amounts of money that are not even remotely comparable to a $50 game or a $12/mo subscription. And it's very unlikely that a person is going to have to deal with those larger sorts of contracts particularly often, whereas a computer user might easily end up agreeing to a EULA every few days. To suggest that there's an equal incentive to pay close attention to these things is silly.
As for modification, I don't think that's as substantial an issue as many of the other problems, particularly those that run up against fair use and liability. However, contracts that may be modified without consent are particularly nasty in the world of software. If I were presented with a contract for a credit card that allowed them to change the rate, I wouldn't agree to it - I'd find another provider. But many of these EULA practices are so widespread in software and virtual services that there
is no other provider. If you want to play games with your friends and you don't like the contract, it's not as though you can go elsewhere and find a different contract. The problem here is contracts for services that are themselves protected as intellectual property. A plumber is pretty interchangable with another plumber, so you can find a contract you feel comfortable agreeing to. Such a situation is relatively rare in software since similarly interchangable solutions would typically violate the first producer's IP rights.
Evil Tim said:
This is distinctly different to what David Stebbins is doing, which is closer to if someone mailed you a contract saying if you didn't sign it then an agreement exists between the two of you; this doesn't hold up because you made no initial agreement saying that they could do this. Same with Stebbins' case; no agreement existed between him and Microsoft allowing him to modify the terms of his agreement with them by mail with ten days' notice.
Yes. I suppose I'll say it one more time: his case "holding up" has absolutely nothing to do with the purpose behind it. It isn't intended to hold up. It isn't intended to provide a legal challenge to these practices. It is intended to do one thing: bring attention to the gigantic grey area that is the typical EULA in a humourous way. It's a Michael Moore stunt, not a legitimate legal challenge.
Evil Tim said:
There is nothing unethical or illegal about saying you're allowed to modify the agreement. Particularly since the companies usually have you click "I agree" to any new modification of the contract rather than just have it take effect; that's certainly what Sony does with updates to the PSN TOU. PSN and XBox Live are services offered with a product, not parts of that product, and are subject to their own terms of use.
Yes, they are. First, there are thousands upon thousands of pieces of standalone software. Second, I don't really think contractual modification is a particularly big problem. It's perhaps worth saying that it's not quite as inconsequential as suggested given that a person might shell out a pretty hefty sum for, say, a 360 so they could use XBL only to find a particularly unsatisfactory change in the EULA prompting them to quit a week later. That doesn't sit particularly well with me, though you may feel differently. But again, I don't think future modification clauses are particularly problematic, especially so long as modifications require their own agreements.
Evil Tim said:
Examples of illegal contract terms, please? There are certainly some that might not hold up in court (for example, the claims in software TOUs that they are offering you a license to use the software rather than a product, which is why "fit for use" laws on products supposedly don't apply to buggy games), but none that are outright illegal.
Yes, that's what I meant - provisions that would never hold up if taken to court. I only meant to distinguish them from provisions that are likely to be enforced or are unclearly enforceable, yet seem clearly unethical.
Evil Tim said:
Rational people don't sign something they haven't read, as a rule. That's more irrational, in point of fact. The only person at fault for you scrollwheeling through the TOU is you.
Rational people do not spend several hours a week reading page upon page of legal text to go with their $10-50 purchases. Particularly if they know that the average person doesn't read them and that it's very rarely an issue for the average user. I think you're confusing rational with "doing what someone told you to do regardless of the context".
Evil Tim said:
Yeah, people will sue for tripping over a paving slab or the emotional trauma of finding a dead bug in a box of cereal, but companies know they're a-ok for committing massive contract fraud without legal repercussions. Are you even listening to yourself?
Those are all areas in which there is an established precedent of people winning damages. EULA cases are exceptionally rare and most of the issues involved are unlikely to win anyone substantial damages (most of the cases are over software purchases in bulk for instance). If I were to bring up the fact that Ubisoft ruined my computer with its DRM and that its contractual agreement with me states they are not liable for doing so, there is virtually no way that I wouldn't lose money bringing the case. Despite their potential fault, this sort of liability limitation is more or less untested in court and even if I won, the time and cost of going to court couldn't hope to balance out to the cost of the computer. Who would ever bring such a case?
And as for companies including unenforcable contract provisions, that's fairly routine when it's unlikely to cost them anything, when people are unlikely to press charges, when its the standard practice within the industry, and when the particular contractual terms are mosly untested.
If your posts can be taken to imply that you actually read all of the EULAs before agreeing to them, I hope you buy software very, very rarely. Otherwise, I truly pity you. That must be a hellish existence.
kidding ;p . Well not truly, society has progressed to a point where civilisation can maintain itself without the imperative need for socialising (all I'm saying here is that we wouldn't perish without it), as oppose to thousands of years ago where it was the brick foundation of our survival. I mean would we really have degenerate delinquents running the streets if we were all apart of the ASD?
