Topic: EULAs are bullshit

[idolminds]

I've been arguing against DRM lately on IGN. Yeah, fun. Limited installs suck, and one person said it was to keep people from lending out their games (because its certainly not stopping piracy). I thought that was a garbage answer because we have laws and rules, such as First Sale. That one states that after I bought something, it's mine. I can do what I want with it. I can lend it to others, I can juggle with it, I can sell it to anyone.

The wikipedia page mentions how this is a "fuzzy" area for software because of the EULA. Granted I can see its use on business software, but games? You aren't buying the game, you're buying a license to play the game.

Then it hit me...not games, but specifically PC games.

When was the last time you had to agree to a EULA to play something on any console? I go buy Bioshock for the 360 as soon as the money leaves my hand that thing is mine. I own it. I can lend it, trade it, sell it, and no one can say squat. Bioshock on PC is completely different despite being the same game. Theres an agreement that limits what I can do. What kind of bullshit is that?

EULAs also suck because you can't read them until you've bought, opened, and started installing the game. So if I read it and don't like the terms...then what? The store won't take it back because its opened. I've never tried it, but I highly doubt the publisher will take it back and give me my money.

So by the time you see the EULA you're fucked. Don't agree and you cant get your money back, or agree and have to abide by retarded restrictions like install limits and the secret installation of SecuROM or something.

[angrykeebler]

the EULA for console sales are usually in the back of the manual..i think that by just purchasing the game you automatically agree to it

[MysterD]

I've been arguing against DRM lately on IGN. Yeah, fun. Limited installs suck, and one person said it was to keep people from lending out their games (because its certainly not stopping piracy).

If you got limited installs, you don't wanna lend it out to others -- b/c that game can only be used so many times; especially if it has NO revokes.

Or else, you'll be calling tech support to get your install count reset (if they feel its case is warranted) or you'd have to buy another copy.

I thought that was a garbage answer because we have laws and rules, such as First Sale. That one states that after I bought something, it's mine. I can do what I want with it. I can lend it to others, I can juggle with it, I can sell it to anyone.

The wikipedia page mentions how this is a "fuzzy" area for software because of the EULA. Granted I can see its use on business software, but games? You aren't buying the game, you're buying a license to play the game.

Then it hit me...not games, but specifically PC games.

When was the last time you had to agree to a EULA to play something on any console? I go buy Bioshock for the 360 as soon as the money leaves my hand that thing is mine. I own it. I can lend it, trade it, sell it, and no one can say squat.

Keep in mind, Bioshock for X360 never gets fully installed onto the X360 hard drive completely. You need the disc to play -- b/c the game plays it off the disc directly; as a ROM. All patches will likely come from -- yes, Irrational. And you're likely not going to see SDK's and mods there, either -- since Microsoft is basically only allowing you to play the game and not utilize with the hard drive; you can not mess with the game files or anything since you are playing from the ROM (pretty much).

You buy a console game, you basically are getting the game to play it as is.

Bioshock on PC is completely different despite being the same game. Theres an agreement that limits what I can do. What kind of bullshit is that?

PC Games can be altered heavily -- since we have to install them on the hard drive to play. Even if Irrational never releases a SDK or anything, you can bet some hacker and modder are going to make their own mods for the game anyways; maybe even make their own SDK. Hell, look at GTA: San Andreas PC; there's unofficial mod kits and a MP version of the game modders made.

PC Games don't play off the disc; they play from putting all the disc's contents onto the Hard drive. B/c hard drives are readable and re-writing, you can alter the game files. The only reason there's a disc-check is just there to try to make sure you own a legit copy. Of course now, now we get the annoying Internet checks, too -- that are trying to go even further.

EULAs also suck because you can't read them until you've bought, opened, and started installing the game. So if I read it and don't like the terms...then what? The store won't take it back because its opened. I've never tried it, but I highly doubt the publisher will take it back and give me my money.

Here's a question.

I never looked into this...but do any or many of the games put the EULAs on their website? Or message boards?

So by the time you see the EULA you're fucked. Don't agree and you cant get your money back, or agree and have to abide by retarded restrictions like install limits and the secret installation of SecuROM or something.

I think this is why Stardock supports that they can refund your money on games -- since retail won't in instances you probably should.

I think that's somewhere in The Gamer's Bill of Rights.
EDIT:
To be specific, that's right #1 the Gamer's Bill of Rights.

[idolminds]

the EULA for console sales are usually in the back of the manual..i think that by just purchasing the game you automatically agree to it

Seriously? Thats even worse.

[K-man]

It's much easier to pirate PC games than console games.  You're less likely to be able to do something "illegal" with a console disc. 

[gpw11]

EULAs also suck because you can't read them until you've bought, opened, and started installing the game. So if I read it and don't like the terms...then what? The store won't take it back because its opened. I've never tried it, but I highly doubt the publisher will take it back and give me my money.

EULAs are interesting from a legal perspective because they're unilateral contracts which functionally involve three parties.  A lot of people claim that they don't hold up at all, which is basically false.  If you click "Yes, I agree" on a EULA you're generally hosed - you've legally agreed to the contract. The interesting part comes in where you can't see the terms before purchase.

There are two main reasons I've heard that people argue make EULA null.  The first being - depending on where you live - the EULA may (and probably does) go beyond local copyright laws, possibly infringing upon consumer protection laws and rights such as First Sale. This is probably the main gray area as I've head of suits ending up going both ways.  It's so iffy because there is precedence for contractual agreements being upheld even though they superseded legal rights (for instance, you can often sign away your legal right to overtime for extra hours worked as long as it is a voluntary agreement not under undue stress or duress), but they can't contradict the law (if a contract is deemed to pertain to something illegal it is automatically non-binding).  As such the context and nature of the violation of the EULA is probably pretty important.  Most of the cases I've head of where EULAs were deemed non-binding have tended to be cases where they forbid resale rather than modifying or copying code; basically, cases where the EULA violation deals with what you do with the physical copy rather than one it consists of. Remember, once you agree to the EULA you're fucked, so if you install something and it can be proved, you're pretty much hosed.

The second reason I've heard people argue is that they're non-binding because you can't agree to them before purchase.  This isn't entirely true.  As before, (and generally this is what makes all the difference in the world) - if you agree to it you're locked in.  But what happens if you take the shrink wrap off, try to install and don't agree? Well, your ass should be covered, although it's probably a pain.  The easiest way is to go back to the reseller and demand a return and refund, hopefully they will go for it,  but they have no legal obligation to do so.  Being a third party (hence reseller) your contract with them is different; every purchase you make is a contract and has the same stages as any contract negotiation; initial offer, negotiation of terms, acceptance, and transaction (this part is fuzzy and I may be missing something or unnecessarily adding something). Again, it's fuzzy but there the legal precedence for how this breaks down when purchasing a product from a store goes something like: 

Initial offer - price on the product
Negotiation of terms  - you bring the product up to the till, they ring it through and the price comes up
Acceptance - (on the part of the buyer) They see and agree on the price in the system, and ask for your money. You offer it.
Transaction - They take your money (up until this point they can still deny sale), give you the item, and you walk out.

Yeah, something is kind of messed there, but that's pretty much the summary of it.  The part that matters is that at the acceptance or negotiation phases you have a chance to find out about their return policies and if you don't like them, you don't buy the product.  Don't like them but buy the product anyways? Screwed.  Don't ask, find out you don't like them later?  Most likely screwed because the onus is on each individual in a contract agreement to demand clarity of terms. 100% disclosure is not necessary (actually, it's a bit more complicated than this, but for the purposes of what we're talking about that doesn't matter because we're assuming everything is legit).  So, if you buy some software, don't agree to the EULA and try to return it at the store, they don't have to take it if their policy is not to once the shrink wrap is off and they never agreed to do so.  Where I think you might have some chance though, and I could be completely wrong on this, is non-disclosure of additional agreements ( you can't use this unless you agree to another contract).  That could be wrong though, and it also could be correct but only apply to the manufacturer rather than the reseller.  I don't know if they even have warnings about EULAs on packages...I've never checked.

So where does that leave you?  Well, assuming you don't agree to the EULA, you don't agree to that contract.  The reseller has no legal obligation to refund your money but the manufacturer does I believe.  I'm fairly certain that as long as you have all the proper paperwork you can contact them and demand they take their product back for a refund as you don't agree to the terms of their license agreement.  If it's anything like any other type of unilateral contract they pretty much have to or else it's duress of goods...which voids the contract you refuse to agree with in the first place.

The main thing is (again) agreeing to the EULA makes it legally binding (again, unless you have all the paper work to prove that you disagreed, asked for a refund, claimed duress of goods and were still denied a refund).  But, in the end, like pretty much everything else in contract law it all comes down to who kept the best paperwork and the judge.

All that aside, I can see where they're coming from with EULAs in some cases (rarely gaming software), but yeah - they're generally still bullshit.  I don't agree with the premise that you're licensing a product instead of buying it.

[Cobra951]

What you didn't cover in that dissertation is equal bargaining power, or rather the lack of it, which can amount to coercion.  With games, it's arguable that it doesn't matter, because they're not a necessity.  You could choose never to play commercial PC games and still do OK.  Refusing to sign away a right to overtime pay means no job, and nothing you can do about it.  If that's a standard thing in your job field, you're screwed.  This can and has been used as a legal argument.

I totally agree with the subject line.  In the consumer world, EULAs are pure bullshit.  You buy something, you are paying for it and then owning it, which means it's yours to do with whatever you want.  No one even imagines that they're signing away rights in a contract, and that all they're acquiring is a use license.  That's all legal fiction, and the sooner it's done away with, the better.

Oh, and EULAs in the back of manuals inside the box?  Even in a pro-business legal climate, that doesn't hold any water.  You need to see it, read it, and do something to acknowledge it.  If it's on the outside of the package, opening the package is being construed as assent (which as I said, is pure bullshit--consumers don't think this way at all).  What action corresponds to assent to a hidden EULA?  None whatever.  I may as well write a contract on the bottom of your cereal bowl, then try to hold you to it after the crunching stops.

[gpw11]

What you didn't cover in that dissertation is equal bargaining power, or rather the lack of it, which can amount to coercion.  With games, it's arguable that it doesn't matter, because they're not a necessity.  You could choose never to play commercial PC games and still do OK.  Refusing to sign away a right to overtime pay means no job, and nothing you can do about it.  If that's a standard thing in your job field, you're screwed.  This can and has been used as a legal argument.

Equal bargaining power is covered under both duress and undue influence in different ways.  Considering we're talking about a unilateral contract, the only time it really comes into play is where 'duress of goods' is mentioned as above.  You should be able to get a refund and if not, you have a very very good case for the terms for the agreement being declared void and thus not having any legal responsibility to abide by the EULA.  Beyond that, since it's a unilateral contract, you'll have a very very hard time trying to prove that they had any undue influence.

When it comes to employment contracts it's quite a bit different and a lot easier to claim duress and/or undue influence just because of the nature of the agreement and the implications of it.  Most employers get around this by claiming you're actually trading your right to overtime pay away for other benefits and/or by changing the the status of the position to one which is not protected such as claiming employees are subcontractors.     

But yeah, none of that changes the fact that EULAs are indeed garbage.  You're not buying a licence - you're buying a good and as such it should be yours.