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Tuesday, September 30, 2008
Buying a license, not a game
Famous Wizard101 blogger Cap'n John posted an interesting theory on the last open Sunday thread: End-User License Agreement's (EULA) might be unenforceable in a court of law, because the license taker, YOU, have to pay before accepting the license conditions. If you don't like the EULA conditions, you cannot just go back to the shop and demand the money back. Hmmm, certainly an interesting theory. I am not a lawyer, but I'm pretty sure that the lawyers of game companies disagree with that interpretation.
But EA's lawyers are busy with a class action suit over Spore DRM installing the SecuROM rootkit on the users computer. And in another tricky maneuver they are trying to explain how the manual stating that you could run several accounts with one copy of Spore was just a misprint. Does that mean next time they can explain how the $49.95 price tag was just a misprint too, and in fact you now owe EA $4995? And of course the announcement that your Spore game could be rendered inactive if you dare to discuss DRM on the official forums is legally tricky as well.
Buying a game or other software is hard to understand for the average person. We *think* we bought the game, but in reality we only bought a limited license to use the software under carefully prescribed conditions. Only rarely the users revolt, like the 2,000 people leaving a negative review for Spore on Amazon, when the difference between owning the game and licensing it becomes too great. In most cases people just ignore the legal difference, and treat the game as if they would own it. DRM is often more an attempt to combat casual piracy than really designed to thwart serious hackers. A hacked version of Spore was available on Bittorrent before the game even hit the shops in the USA. And there is a big risk for game companies that the more DRM they pack onto their games, the more popular the pirated version becomes over the legally bought version.
As others so correctly remarked, it is a bad situation when the pirated version of the game is perceived as better (not just better value for money) than the legit version. The obvious solution for games with online components, and Spore easily could have done that, is to have no DRM on the disk, but make it impossible to create an account with a pirated version. People pay for World of Warcraft because even if you could play it with a pirated version on a free server, the game experience on the real servers is better. There is very little discussion about DRM regarding MMORPGs, because it simply is no problem. You can legally download the WoW client for free, as trial version. And while an anti-cheat program like Warden might be perceived as bad, a lot more people can live with that than with SecuROM.
Trying to sell your customers a complicated license and then going after them with for EULA infractions, or annoying them with DRM software, is not going to work well for mass market software like games are. You just get a mix of backlash and EULA breaches you can't do much against. Selling people just a game, and putting the license on the online service is a lot easier to understand. And if the online services are good, people are quite willing to pay for them.
- posted by Tobold @ 6:30 AM Permanent Link
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Yet somehow, we went from battle.net (free) to $15/month. It adds up over time, despite the rationalizations and snake oil.
The sheep are waking up. I've got a sense that it's a part of the larger sense of democracy that you mention in the other post. Monolithic companies are not all that welcome at the party these days, and people are mad.
It's a natural shift in power between the tenuous balance between consumer and producer (or governor and governed). People actually do get sick of being abused, and once awakened, public sentiment can be very strong. Thankfully, we still have some ability to protest. I fear the day when we do not.
The sheep are waking up. I've got a sense that it's a part of the larger sense of democracy that you mention in the other post. Monolithic companies are not all that welcome at the party these days, and people are mad.
It's a natural shift in power between the tenuous balance between consumer and producer (or governor and governed). People actually do get sick of being abused, and once awakened, public sentiment can be very strong. Thankfully, we still have some ability to protest. I fear the day when we do not.
I got my copy of Spore just a couple of days ago.
The game seems fun if you like the genre. And is well polished. I like it.
But speaking of DRM, EULA and the like.... I must say I've a _VERY_ negative thumb down.
1) Why install SecuROM and need at the same time an internet connection for activation?
2) Why the software tries to check other software running on the machine? I've also WoW and Warcraft doesn't do so. I know that Warden tries to check machine but my antivirus (Kaspersky) doesn't alert me of bad behaviour. With Spore there are many tries (by Spore) to control other system components. Only some device drivers do this. (if asked I can give more details).
3) I hadn't read (as many) Spore EULA, but I think that EULA has to be shown _before_ buying or leave option to return merchandise _without_questions_ for a full refund if product isn't installed/activated. So you can start install, read EULA and eventually cancel and return for refund
4) if big companies want to play with DRM and very restrictive EULA's (that is useless as pirated copies aren't stopped by DRM) they need to provide a quick and easy method for refunds.
5) after Spore install, I had been asked if I wanted (strongly suggested) to install EA Downloader. And there was even another EULA to confirm. I did read just a random paragraph and decided to NOT_INSTALL. As EA Downloader stated in EULA that they (EA) can gather and store information like IP, Operating System, Language, Configuration, Hardware Specs... and the list continued with running process, installed aplication. Why a patcher need to transmit what aplication I have installed on my PC?
Why honest buyers are punished with all this?
The game seems fun if you like the genre. And is well polished. I like it.
But speaking of DRM, EULA and the like.... I must say I've a _VERY_ negative thumb down.
1) Why install SecuROM and need at the same time an internet connection for activation?
2) Why the software tries to check other software running on the machine? I've also WoW and Warcraft doesn't do so. I know that Warden tries to check machine but my antivirus (Kaspersky) doesn't alert me of bad behaviour. With Spore there are many tries (by Spore) to control other system components. Only some device drivers do this. (if asked I can give more details).
3) I hadn't read (as many) Spore EULA, but I think that EULA has to be shown _before_ buying or leave option to return merchandise _without_questions_ for a full refund if product isn't installed/activated. So you can start install, read EULA and eventually cancel and return for refund
4) if big companies want to play with DRM and very restrictive EULA's (that is useless as pirated copies aren't stopped by DRM) they need to provide a quick and easy method for refunds.
5) after Spore install, I had been asked if I wanted (strongly suggested) to install EA Downloader. And there was even another EULA to confirm. I did read just a random paragraph and decided to NOT_INSTALL. As EA Downloader stated in EULA that they (EA) can gather and store information like IP, Operating System, Language, Configuration, Hardware Specs... and the list continued with running process, installed aplication. Why a patcher need to transmit what aplication I have installed on my PC?
Why honest buyers are punished with all this?
This is not a new legal theory, and it hasn't had much luck in American courts. (They refer to the EULA as a "shrinkwrap" license, because you have to break the shrinkwrap around the box before you get to read it.) Most EULA's have a clause claiming that you can get a full refund if you refuse to agree, and you would probably be able to get said refund if you worked hard enough at it (though good luck returning an opened computer game to the store), which is good enough for the terms of the law.
The argument that has seen some success is that some portions of EULA's are "unconscionable", in particular some very one-sided arbitration clauses (notably, Second Life's). Still, this law too is pretty murky; a US court recently found that loading a copy of WoW into your computer's RAM, a necessary step prior to playing the game, constitutes a "copy" of Blizzard's intellectual property, which is only permissible if the EULA says so.
In summary, as they say on the Internets, all your rights are belong to EULA.
The argument that has seen some success is that some portions of EULA's are "unconscionable", in particular some very one-sided arbitration clauses (notably, Second Life's). Still, this law too is pretty murky; a US court recently found that loading a copy of WoW into your computer's RAM, a necessary step prior to playing the game, constitutes a "copy" of Blizzard's intellectual property, which is only permissible if the EULA says so.
In summary, as they say on the Internets, all your rights are belong to EULA.
Vernon v. Autodesk = you do own the copy of your software.
MDY v. Blizzard = you do not own the copy of your software.
Both are 9th Circuit and one of them will be a lot stronger in a year or so.
MDY v. Blizzard = you do not own the copy of your software.
Both are 9th Circuit and one of them will be a lot stronger in a year or so.
# posted by 
: 30/9/08 15:18
: 30/9/08 15:18
"They refer to the EULA as a 'shrinkwrap' license, because you have to break the shrinkwrap around the box before you get to read it."
They were called shrinkwrap because they used to be on the box or on the shrinkwrap outside the box. By opening the box you agreed to it.
The latest is "clickwrap" where you have to agree to the EULA by clicking "I agree."
"The argument that has seen some success is that some portions of EULA's are "unconscionable", in particular some very one-sided arbitration clauses"
Exactly. EULA's are generally enforceable unless they are completely unreasonable to one party. Such as at one time Gateway's arbitration clause was that you had to take them to an international tribunal that cost thousands of dollars to even file with them.
They were called shrinkwrap because they used to be on the box or on the shrinkwrap outside the box. By opening the box you agreed to it.
The latest is "clickwrap" where you have to agree to the EULA by clicking "I agree."
"The argument that has seen some success is that some portions of EULA's are "unconscionable", in particular some very one-sided arbitration clauses"
Exactly. EULA's are generally enforceable unless they are completely unreasonable to one party. Such as at one time Gateway's arbitration clause was that you had to take them to an international tribunal that cost thousands of dollars to even file with them.
# posted by : 30/9/08 15:19
: 30/9/08 15:19
Ah the battle.net days.
Somebody is paying for the servers, actually.
COD4 free to play--- as long as someone else foots the bill for the server.
There is no way you can rationally expect a company to agree to buy the bandwidth, server farms, etc.. for years with only a $50 box sale to fund it.
Sorry. This isn't a megacorp political thing; its a "mmo's cost a lot of money to maintain, this ain't Quake 2 or some shit" thing.
Somebody is paying for the servers, actually.
COD4 free to play--- as long as someone else foots the bill for the server.
There is no way you can rationally expect a company to agree to buy the bandwidth, server farms, etc.. for years with only a $50 box sale to fund it.
Sorry. This isn't a megacorp political thing; its a "mmo's cost a lot of money to maintain, this ain't Quake 2 or some shit" thing.
# posted by : 30/9/08 17:44
: 30/9/08 17:44
Toxic, aye, it's reasonable to expect to pay for server maintenance. (Though, Guild Wars manages just fine.) Given the continually improving technology, however, $15/month per player is far overpriced for the service offered.
Yes, the EULA is generally enforceable, unless it violates your basic rights. It's like a contract under which you would agree to become a slave would not be a valid contract, because it takes away basic inalienable rights. Even if you signed it in the presence of multiple doctors who would all attest that you are of sound mind and body, the contract could not be enforced. Although there's nothing to stop you from acting as a slave, even including enduring beatings should your Master desire it, because (normally) it would be up to you to press charges for Assault and/or Battery. However, if your Master killed you during one of these beatings, or made you perform an act which resulted in your death, at the very least he could be found guilty of manslaughter.
This is an extreme example of an otherwise legally binding Contract being unenforceable.
When you buy a game you are not, technically, buying the game; you are buying a license which allows you to use the game but only IF you agree to abide by the TOU and EULA for that game. For most people when the EULA pops up, they just click Accept, continue Installing the game, and away they go.
But some people will read the EULA. And some will disagree with it. What happens when they do?
What rights does the consumer have to seek a refund for the product, should they choose not to Accept the EULA?
Ah ha! Thanks, Green Armadillo.
EULA
2. Service and Terms of Use
If you do not agree with the Terms Of Use, then (a) you may not register for an account to play the game, and (b) you may call (800)757-7707 within thirty (30) days after the original purchase to arrange to return the game and to request a full refund of the purchase price.
As Green Armadillo stated, most software EULAs contain a clause allowing you to seek a refund should you choose not to accept it. In WoW's case you do not return the product to the store, but rather call an 800-number within 30 days of purchase to arrange your refund. Naturally it requires you to return (mail) the game, so you will most likely have to eat the cost of postage.
Sorry for the Wall Of Text...at least I punctuate ;)
This is an extreme example of an otherwise legally binding Contract being unenforceable.
When you buy a game you are not, technically, buying the game; you are buying a license which allows you to use the game but only IF you agree to abide by the TOU and EULA for that game. For most people when the EULA pops up, they just click Accept, continue Installing the game, and away they go.
But some people will read the EULA. And some will disagree with it. What happens when they do?
What rights does the consumer have to seek a refund for the product, should they choose not to Accept the EULA?
Ah ha! Thanks, Green Armadillo.
EULA
2. Service and Terms of Use
If you do not agree with the Terms Of Use, then (a) you may not register for an account to play the game, and (b) you may call (800)757-7707 within thirty (30) days after the original purchase to arrange to return the game and to request a full refund of the purchase price.
As Green Armadillo stated, most software EULAs contain a clause allowing you to seek a refund should you choose not to accept it. In WoW's case you do not return the product to the store, but rather call an 800-number within 30 days of purchase to arrange your refund. Naturally it requires you to return (mail) the game, so you will most likely have to eat the cost of postage.
Sorry for the Wall Of Text...at least I punctuate ;)
As above... they have to pay the postage in the UK.
The Sales of Goods Act (1979)says that you should not be left out of pocket trying to put things right. The seller has to bear certain costs, including postage or return carriage, and, particularly for heavy items, it is the retailer's responsibility to arrange for collection.
The Sales of Goods Act (1979)says that you should not be left out of pocket trying to put things right. The seller has to bear certain costs, including postage or return carriage, and, particularly for heavy items, it is the retailer's responsibility to arrange for collection.
# posted by : 1/10/08 01:46
: 1/10/08 01:46
I returned my Spore, glad I did. Down with DRM.
Btw, I've purchased not 1, but 3 copies of Sins of a Solar Empire (for friends).
I'm now a HUGE fan of Stardock.
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Btw, I've purchased not 1, but 3 copies of Sins of a Solar Empire (for friends).
I'm now a HUGE fan of Stardock.
# posted by : 1/10/08 11:32
: 1/10/08 11:32<< Home
