State of the Industry

State of the Industry
Self-serving Small Print

Douglas Heaven | 10 May 2011 12:26
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There's nothing atypical about the details of Sony's EULA, but in its willingness to cite its stringent terms in court, we're seeing an example of the power these licenses actually give the license holder. There's a clear history of consumer rights law that should protect us from after-sale restrictions or alterations to products we purchase. But with the shift towards digital distribution and internet-enabled DRM, these rights appear to be more readily subject to infringement.

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Individual examples abound of lost digital purchases and disabled accounts, most getting little attention beyond the forum rants of the aggrieved. But overall they paint a picture in which game buyers have little recourse against the whims of content providers who cover themselves with the catch-all terms of their license agreements. Here are just three of the more prominent examples: Sony's post-sale insertion of video advertising into the loading screens of WipEout HD months after people had bought the game without ads via PSN; a temporary EA account ban that locked a user out of his "offline" EA games because the games' DRM required online access; and a Steam user coming very close to losing a game library worth over $500 and amassed over several years because of a $3.75 PayPal mix-up. In the EA case, the ban was occasioned by a disparaging remark against EA in its forum and, according to EA's terms, it could potentially have imposed the ban indefinitely and without offer of refund for the games rendered unplayable. Steam's conditions seem equally draconian: Its user was told that unless he could resolve the issue with PayPal, his Steam account would remain locked and he would lose access to all of the games - despite the fact that only the most recent transaction was being disputed. And again the small print makes it all OK. It's not quite 1984, but the accompanying and overly familiar mantra of "software as service" has the definite dull ring of Newspeak.

There are always rumblings of dissent. Organizations such as the Electronic Frontier Foundation will continue to cry foul as digital rights continue to be trampled on. In Europe, The Consumer Council of Norway, a government agency, has claimed that Sony breached the Norwegian Marketing Control Act when it disabled OtherOS and it criticizes the license agreement that apparently gave Sony the right to do this. But the fact of the matter is that the legality of most licenses has yet to be tested in court.

Ashelford thinks "there's a sword of Damocles hanging over these licenses because we all know that the habits of users are that they are never read." Most gamers are in the habit of tacitly accepting the terms of the latest EULA by impatiently clicking through as part of a lengthy software installation. "Don't pirate the game," yadda yadda, click click. These "clickwrap" agreements are assumed to be binding even though users do not need to have read the terms before accepting them. But then what can we be said to have agreed to? In the end, perhaps very little. "There's a difference between saying 'I have accepted these terms' and 'I have read them'," says Ashelford, "and courts have already criticized the latter for requiring people to make these false - clearly false - statements. Such behavior almost renders the text of the license an irrelevance."

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