170: We the Gamers

We the Gamers

"Over the past several years many journalists, game developers and gamers themselves have tried their hand at drawing up a document that definitively catalogs players' rights. Reactions against DRM, including the recent Amazon review-bomb against Spore, comprise the majority of those arguments currently on the average gamer's radar, but older documents, including Raph Koster's Declaration of the Rights of Avatars, have been around for years now. They're hardly new concepts, but what is new is the force with which some disenfranchised gamers have responded to the perceived infringement of their right to game."

Read Full Article

MMOs these days are like second jobs. Well, that is if you were ever willing to pay to work a second job. These online games insatiably gobble up your time, money, and mental energy. What you get in return is (apparently) some much desired escapism and a few virtual items that help you maintain that escapism. So you can see how perhaps a person may be inclined to injure another in real life for some sort of trespass committed virtually in a video game. As well we can see how "Gold Farmers" make virtual gold into real life money and how one could find themselves in a real life courtroom fighting over virtual property or items.

If we want to talk about gamer's rights one might want to include the right not to be a slave to escapism.

MorkFromOrk:
If we want to talk about gamer's rights one might want to include the right not to be a slave to escapism.

Haha, that makes me laugh because you posted it on a website called The Escapist. Not that I'm disagreeing, but I just think that it's funny as hell.

Actually, the implications there are interesting. If it's our right to not be slaves to escapism, should we tell Blizzard and Mythic and Nexon and whoever else makes massively multiplayer games to stop making them so damn addictive? ...shouldn't we also then demand that cigarette companies remove tobacco from their products, yet insist that they remain as stress-relieving?

Like I said, I don't necessarily disagree with you, Mork, but there are some interesting ramifications to that statement you made.

MorkFromOrk:
If we want to talk about gamer's rights one might want to include the right not to be a slave to escapism.

It's not the company's fault that some individuals become mindless slaves to the product, but it is the company's fault should they do nothing when something like that case study in China occur. Especially if they have the means to do it, but refuse for one reason or another.

One question that I'm itching to ask is, Has anyone ever challenged a EULA in court? I reckon, should developers carry on their path of preventing piracy in such a manner, that someone will sue, and the EULA, as we gamers know it, will be under extreme heat.

stompy:

MorkFromOrk:
If we want to talk about gamer's rights one might want to include the right not to be a slave to escapism.

It's not the company's fault that some individuals become mindless slaves to the product, but it is the company's fault should they do nothing when something like that case study in China occur. Especially if they have the means to do it, but refuse for one reason or another.

One question that I'm itching to ask is, Has anyone ever challenged a EULA in court? I reckon, should developers carry on their path of preventing piracy in such a manner, that someone will sue, and the EULA, as we gamers know it, will be under extreme heat.

Well, there is the class-action Spore lawsuit about the DRM and how it wasn't clearly identified in the EULA, but the EULA itself contravening certain trade laws? I'm not sure that's ever been tried. Maybe the FTC should get involved.

Oh, you guys know what's sort of funny? Spore's EULA, I went and read through the whole thing... some interesting points came out of it...

Spore End User License Agreement (Section 2A):
EA owns all of the right, title and interest in the Software; to the assets included in the Software for building and animating creatures and for creating backgrounds and video clips; and to all derivative works comprised of those assets, including the Spore creatures that you create, animate, and capture in screen shots or video clips using the Spore Creature Creator.

So that means that any creature or other media I create with Spore is theoretically owned by EA. Interesting. Love to see how that works out when I make a replica of an already copyrighted design. I saw someone make The Magic Schoolbus as his spaceship. I'd love to see EA try and say they own the design of that.

But the really relevant piece is this:

Spore End User Licence Agreement (Section 11):
11. Severability and Survival. If any provision of this License is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this License shall continue in full force and effect.

Is it just me, or does that mean they know they've put illegal or unenforceable terms into their contract?

I an sorely tempted to sue ea over intrusive drm. That is if i win this weeks national lottery. 24 mil baby!! There is probably something illegal about the drm.

stompy:

One question that I'm itching to ask is, Has anyone ever challenged a EULA in court? I reckon, should developers carry on their path of preventing piracy in such a manner, that someone will sue, and the EULA, as we gamers know it, will be under extreme heat.

They're tough to crack but contracts similar to the one in video games have been busted before. Like the article said, what makes it hard is that you've agreed to arbitration, which means you go to an outside unbiased judge instead of a legal court. The problem is that the Judge is just gonna look at you and say, "You clicked 'I Agree' to their batty contract, what's the problem?"

@ Fenixius

Funny you should mention that, the U.S. Copyright service has a giant gaping hole in it regarding user-created mods and who has the rights to them. The Lanham Act (the law controlling Copyrights) was never designed for video games. It shoehorns them into this category called 'audiovisual displays' but it was intended for movies, not games.

And oh the lawsuits that are going to come out when people start making money off their mods...

I think it's fair to say, for all of the reasons the OP stated, and for the numerous unconscionable terms in these EULAs, that they carry little legal weight. But, assuming they were otherwise truly binding contracts, what implicit rights might the licensee have that aren't explicit in the contract?

For one, there's the expectation of availability. Just like you would expect some minimum level of availability for your power and phone service, so too would you expect availability of an online game. This can manifest in a couple of ways: incompatibility with your hardware/software and centralized server failure.

It's frustrating to purchase software only to find out that it won't work on your machine, but it's criminal to be told that you can't get a refund in that case. They assert that it's the customer's responsibility to ensure compatibility, but how can the customer do that without trying the software first? Most of the incompatbilities aren't even ones that the developer is aware of, let alone the customer.

And then there is the all-too-common situation where a new online game is released and the publisher-owned servers buckle and break over the initial flood of users. The users paid for the program, but are unable to play it because the publisher hasn't provided sufficient infrastructure. It should be the publisher's responsibility to ensure the robustness of their infrastructure, and if they believe they have certain capacity limits, they should not attempt to sell more units than they can support. It would be no different than paying a restaurant for a yet-to-be-served meal, only to be offered a raincheque with no option of a refund. You paid for the product with the expectation of using it immediately -- a promise of being able to use it sometime down the road doesn't cut it.

Aside from availability is fitness for a particular purpose. This liability is usually disclaimed by software developers, and yet it seems like the most basic right to the user. If I go to a gas station and purchase gasoline, shouldn't I be able to use that gasoline to power my gasoline-powered vehicle? If I buy food at a grocery store, shouldn't I be able to ingest it for nourishment? If there is a problem with the gasoline or the food that prevents me from doing so, the seller will be held accountable. Why then can't I purchase a word processor with a guarantee that I will, in fact, be able to type letters with it?Worse yet, why can't I buy a tax program with a guarantee that the values will all add up and I won't be accused of tax fraud because of a programming error?

Software, and virtual property by extension, has managed to write its own laws based on the premise that it is not real and therefore isn't important or necessary. The argument that you bought the bits, or a license to use the bits, is tantamount to saying that you didn't buy a car (implying some set of properties and abilities), but rather a set of metal and plastic whose value is nothing more than its constituent components, or worse yet, that you are only renting it and we can take it back whenever we feel like it.

In any other industry, it would be unacceptable to sell things that didn't work as the customer would reasonably expect it to. In everything software, it's accepted and (theoretically) protected by law. We need to demand the same customer rights and protections offered to every other form of product.

L.B. Jeffries:
The problem is that the Judge is just gonna look at you and say, "You clicked 'I Agree' to their batty contract, what's the problem?"

This one has always made me wonder. With the length of those EULAs and the confusing legalese they are written in, couldn't a person argue that they didn't understand what they were accepting? I'm sure the courts would say, "If you didn't understand, you shouldn't have accepted, or you should have secured legal counsel first," but neither of those options is particularly reasonable. (If you refused to accept every license that you never fully understood -- presumably all of them -- how much software would you own right now? Could you live a normal life without it? Could you afford to have a lawyer explain every single EULA to you? Is it fair to place the burden of that cost on the consumers?)

ReverseEngineered:

L.B. Jeffries:
The problem is that the Judge is just gonna look at you and say, "You clicked 'I Agree' to their batty contract, what's the problem?"

This one has always made me wonder. With the length of those EULAs and the confusing legalese they are written in, couldn't a person argue that they didn't understand what they were accepting? I'm sure the courts would say, "If you didn't understand, you shouldn't have accepted, or you should have secured legal counsel first," but neither of those options is particularly reasonable. (If you refused to accept every license that you never fully understood -- presumably all of them -- how much software would you own right now? Could you live a normal life without it? Could you afford to have a lawyer explain every single EULA to you? Is it fair to place the burden of that cost on the consumers?)

You have to remember what you're suing a person over in a EULA dispute. Like you pointed out in that long post, there are a ton of things I might sue a developer or publisher for. What the EULA dispute is going to boil down to is whether that legal battle will occur in an arbitration court (privately run third party judges) or a state/federal court. If you're the company, you want the arbitration because it's cheaper and they are only going to look at the contract. If you're the individual, you want it in state/federal court because all sorts of laws and arguments are available.

So like I said, the judge is going to look at the person and say, "You agreed to settle all lawsuits in arbitration. Why is this unfair aside from you can't possibly win in an arbitration court?" There are ways to beat that, like the article noted, but it depends on what state you're in and how cold Hell is that day.

*edit*

If anyone is extensively interested all this, there is an excellent blog run by video game lawyer out of Texas who writes great articles for Joystiq on all things legal with games.

http://lawofthegame.blogspot.com/

It is definitely worth looking through for even the average joe. Know your rights!

The way I see it, if you have paid actual money for these items or services, even though virtual, you still have a right to have your purchases protected. It's that simple.

If you accept the EULA would you technically be agreeing to 'rent' the items/gametime/use of chars instead of buying them outright?

If so then surely there isn't that much legal protection...?

Thanks, all, for the comments. Standard disclaimer, IANAL, etc etc. But I agree that these are important issues both to think about and discuss.

stompy -- Bragg v. Linden ultimately challenged the EULA, sued over EULA issues. As far as I know that's the closest it's gotten. In other cases, such as the recent Glider one, other companies have done interesting contortions with the law in order to avoid making the EULA itself an issue. For instance, the Glider case actually asserts that Glider makes a *copyright violation* because Blizzard's IP is stored in the RAM of a computer and Glider makes modifications to that version of the software in RAM. All this to stop scripting that drives your WoW character for you. It's (IMHO) a pretty disturbing abuse of copyright -- but interesting insofar as how far Blizzard went to avoid simply bringing down the hammer on Glider and Glider users under the auspices of the "we can do whatever we want" EULA. It shows very distinctly how much they did not want that to come up in court.

ReverseEngineered -- the short answer is yes, regarding the argument that someone didn't understand. For this reason major clauses actually legally have to be separated into their own paragraphs and in some cases emphasized (bold print) -- this came up in Bragg v. Linden, too. But basically the company who writes the contract has to be shown to have made a good faith effort to make sure their contract was understood at the time it was signed, and if they do too many backflips with the language (e.g. "fine print"), it can come back to bite them depending on the judge. If a judge gets a whiff that the intent is to deceive or take advantage of, the company is in trouble if the contract is ever questioned.

Jeffries -- good points, but I would add that arbitration isn't necessarily going to come down on the side of the company. Arbiters are actually usually quite good at negotiating a fair compromise between the two parties in conflict (and they're usually former judges or at least lawyers themselves). There's much more legal safety in the arbitration arena, for sure (in terms of having fines imposed or legal precedent set as a consequence), but it's far from "you can't possibly win". The court systems are content to have most disputes shunted there just because it takes pressure off of a system paid for by taxpayers.

IJazzl -- it's interesting you bring up "renting". I think that the concept of 'renting' or perhaps stock ownership is closer to what might apply in these spaces. But consider how much legal protection there is on renters -- depending on your state, the answer is usually A LOT. If you're renting a place, you have a very stern, very formalized contract with your landlord, and your landlord can't generally a) invade the premises unannounced; b) alter the premises without your permission; c) evict you without proper procedure and warning. All of these things currently happen in MMOs, and represent liability on the part of the operators. One of the big steps that operators can currently take toward fairness in their EULAs, and one of the major legal concerns with current systems, is that a lot of games these days will actually alter the EULA on you mid-payment-cycle, which is a very risky thing for them to do. This is tantamount to altering your lease after you've signed it and before your lease term is up -- it's not legal. What they're likely to move to instead is that instead of new EULAs coming into effect immediately, they'll come into effect 15-30 days after they're agreed to -- aka the next payment cycle, in which case the company is much safer in claiming "well, if they disagreed with the EULA, they could have just suspended their subscription". An interesting side-effect of this is that, for instance, a banned user (who would contractually still have until the termination point of their contract -- the end of the payment cycle) or a user who disagreed with the EULA would then have that period of time, no matter how small (even a couple of days) to liquidate their virtual holdings and recoup some, if not all, of their value. This minor change, moving more toward a rental model, would drastically, IMHO, shift the fairness and ethics of the EULA problems we currently have.

Renting is currently the way I view many of the MMORPGs. However I worry that should I be scammed in one of these games there would be no legal way to fight the scammer as most legal systems would either view it as A: a game, virtual only and not real or B: not worth looking at because people can't see an online game/life as important no matter the money/time/effort you put into it.

Here in the UK I feel like I'd be totally unable to approach a lawyer with a view to bringing legal charges against someone/some company should I be scammed or hacked in an online world.

A shift of the laws to cover users playing games is an absolute must IMO. I didn't spend several years on a game and a couple thousand dollars just to have no support if my char gets taken away/my gears get scammed/the company gets hacked, (as has happened).

With online gaming becoming so big and with people spending a lot of money in some cases there should be laws to protect them instead of relying on the company who produced it. I have known many users who have not agreed with changes the company have made and gone to sell up their virtual property but been banned from doing so by the company who state that everything is their property, rendering the hours and hours of time, the expensive items and the assets of the virtual character completely and utterly redundant. Even worse is that these people usually get banned from playing on that char or any future ones.

i have never been obsessed with an mmo, i have played them, i just dont obbses about things that much...

ReverseEngineered:

L.B. Jeffries:
The problem is that the Judge is just gonna look at you and say, "You clicked 'I Agree' to their batty contract, what's the problem?"

This one has always made me wonder. With the length of those EULAs and the confusing legalese they are written in, couldn't a person argue that they didn't understand what they were accepting? I'm sure the courts would say, "If you didn't understand, you shouldn't have accepted, or you should have secured legal counsel first," but neither of those options is particularly reasonable.

The thing is that you pay for it before you have a chance to read the EULA.
I suppose it's reasonable that you can take it back to the store but some places won't refund if you broke the wrap and opened the packaging.

IJazzI:
With online gaming becoming so big and with people spending a lot of money in some cases there should be laws to protect them instead of relying on the company who produced it. I have known many users who have not agreed with changes the company have made and gone to sell up their virtual property but been banned from doing so by the company who state that everything is their property, rendering the hours and hours of time, the expensive items and the assets of the virtual character completely and utterly redundant. Even worse is that these people usually get banned from playing on that char or any future ones.

People are paying to use software and programs that the company owns, the things that they achieve in the game still belong to the company, even though they earned them themselves.
It's a sad reality but it is also something most people don't realize.
If you played World of Warcraft for 4 years and were lvl 80 and had all of the best gear that took you so much time to get, it doesn't make a difference, you don't own that gear because it was the company that created it and it's the company that is letting you use it.

Varchld:

The thing is that you pay for it before you have a chance to read the EULA.
I suppose it's reasonable that you can take it back to the store but some places won't refund if you broke the wrap and opened the packaging.

A good point. In many cases a store won't offer a refund so you have bought the game but cannot disagree to the EULA without losing money.. I wonder how that's covered under your statutory rights.. Their argument for not refunding money is the key/game might have been used I guess.

Augg:

People are paying to use software and programs that the company owns, the things that they achieve in the game still belong to the company, even though they earned them themselves.
It's a sad reality but it is also something most people don't realize.
If you played World of Warcraft for 4 years and were lvl 80 and had all of the best gear that took you so much time to get, it doesn't make a difference, you don't own that gear because it was the company that created it and it's the company that is letting you use it.

Augg I know many friends of mine who have paid for a game and then think that everything they do makes it their character, or their equipment.. I don't really see how things can be balanced up though. Renting is perhaps the closest model but even so..

They should introduce at least SOME laws to protect the gamers.

 

Reply to Thread

Your account does not have posting rights. If you feel this is in error, please contact an administrator. (ID# 64770)