Auto-Subscribing players who never signed up for a subscription.. 11 months after a pre-order purcha

Slapshot1188

I won't name any names here, but these are the facts as I understand them:

 

1. A game went on sale as a pre-order (MMORPG) last July 2009. 

2. At the time of sale there was a TOS that stated you would start a recurring subscription AFTER selecting a subscription type (duration) and payment method.

3. There was no account/subscription section on the website for about 8 months after the sale. 

4. When they added the subscription section to the website they changed the TOS to state that by purchasing the game you agreed to becoming subscribed to the game.

5. By default they set all pre-order folks to RENEW SUBSCRIPTION.  Even though they had never picked one, agreed to one, or chose a payment method.

6. They apparently held onto credit card info used from the 2009 pre-order purchases and transfered that data over to the subscription info.

7. The company decided that ALL "free months" would start at launch of the game.. which was June 2010.

8. The company just started billing pre-order people who never played the game in months (some almost a year) and never agreed to a subscription in the original TOS for recurrent subscriptions.

9. At launch the company sent out an email from newsletter@XXXXX.com saying the game was launching and all accounts were active but people could go and turn them off if they wanted.  Needless to say after 10-11 months many people have new emails.. and who really reads most emails from newsletter accounts of old games you no longer play?

 

I may have missed one or two items.. but I think that pretty much sums up the situation.   My question is...:

 

Is this practice even LEGAL?   Even if it is legal (which I hope it isn't) should gaming sites be covering this as it would set a horrible precedent for future MMOs...?

 

I left the company name and game out as I'd like to simply discuss the issues while leaving any pre-existing pro/con feelings about the company or game at the door.

nickelpat

I'm 90% positive they stated in the TOS that it may change at any time without notification to the user, which means, yes, it's completely legal. It's stupid, but legal to my knowledge. I have to ask too, what game?

Zookz

It does not pass a common sense check. Legal or not, this is shady business, and I hope it gets sorted out for the victims. 

Slapshot1188

Originally posted by nickelpat

I'm 90% positive they stated in the TOS that it may change at any time without notification to the user, which means, yes, it's completely legal. It's stupid, but legal to my knowledge. I have to ask too, what game?

 Yes.. a TOS may change.. but you have to AGREE to the changes.. or stop using their service. 

Burntvet

Originally posted by nickelpat

I'm 90% positive they stated in the TOS that it may change at any time without notification to the user, which means, yes, it's completely legal. It's stupid, but legal to my knowledge. I have to ask too, what game?

Just because a game company says something is legal, does not make it so. If they changed the TOS to say, if you cancel your preorder, we get to send someone to your house and kick you in the nutz, would that be legal? Nope. A customer can not agree to have their rights violated. In legal terms, it is called an "Unenforceable contract".

The reason that game companies get away with the vast majority of shady behavior, especially using the excuse "It was in the EULA/TOS," is because that assertion is never challenged in court. Who is going to sue over a $50 computer game or a $15 sub fee taken illegally? Not many people.

EULAs/TOS agreements do not mean as much as people seem to think, and it is only because no one challenges them. On the few occasions this has happened, the companies typically "settle" and insist on an NDA from all parties.

There is only one case I know of where a customer directly challenged a software license agreement and had it go all the way to a court decision, and the software company lost, huge.

Distopia

Originally posted by Slapshot1188

I won't name any names here, but these are the facts as I understand them:

 

 

 

 

4. When they added the subscription section to the website they changed the TOS to state that by purchasing the game you agreed to becoming subscribed to the game.

5. By default they set all pre-order folks to RENEW SUBSCRIPTION.  Even though they had never picked one, agreed to one, or chose a payment method.

6. They apparently held onto credit card info used from the 2009 pre-order purchases and transfered that data over to the subscription info.

 

8. The company just started billing pre-order people who never played the game in months (some almost a year) and never agreed to a subscription in the original TOS for recurrent subscriptions.

 

 

I may have missed one or two items.. but I think that pretty much sums up the situation.   My question is...:

 

Is this practice even LEGAL?   Even if it is legal (which I hope it isn't) should gaming sites be covering this as it would set a horrible precedent for future MMOs...?

 

I left the company name and game out as I'd like to simply discuss the issues while leaving any pre-existing pro/con feelings about the company or game at the door.

Well I know what game/ company you're referring to.

The four things I left that were listed sound highly questionable in a legal sense. For a person to subscribe to something they must agree to it, otherwise they are not responsible for payments and/or TOS agreements. In doing the above a company would break their own TOS, not to mention they're basically stealing money.

I haven't noticed an approar as of yet, is there proof of this actually happening?

Slapshot1188

Yes there are people complaining.. on these forums as well as the official ones for the game, but they get deleted for the most part (the ones on the official forums).  Also.. this just started 2 days ago... people will be getting their card statements for the next month or so and it will be when they see the charges, but yes.. some have already started complaining.

 

Edit:

 

I would link to them but I'd rather keep the specific company and game out of the discussion and get feedback from people who may have no experience with the game at all.  Just a general view on this behavior from a generic company.

tsukts

This happend to me, and I wasn't even subscribed for Newsletter.

Would be fair if they sent out a email that everyone would recieve so we could cancel it before it was billed.

Rydeson

From what info is in the OP, it's not legal binding agreement..  Good Luck.. Contact your state AG if you can..

Distopia

Originally posted by tsukts

This happend to me, and I wasn't even subscribed for Newsletter.

Would be fair if they sent out a email that everyone would recieve so we could cancel it before it was billed.

Either way you have a sure fire rebuttal to offer your bank/card issuer. Not to mention something like this could easily put a black mark on any companies portfolio. A charge back should be easy enough to obtain.

@Slap, well it looks like SV really screwed up on this one. As I said months ago, when and if this happens put it out there and all over, well it happened don't let anyone forget it.

Evile

Also, call your credit card company and tell them these charges were NOT authorized. 

Even if they can't get your cash back (which they should be able to), they can restrict all future charge attempts.

Always make sure your credit card info is REMOVED from any online MMO you become inactive on. If the account page does not give any option, email support and DEMAND the CC# be REMOVED.

LOTRO did something simmilar to me. My account all of a sudden started charging me 3 month subs (after being inactive for many months. I then demanded my info be completely removed, and called the CC company to restrict any future charges.

Why I will never play another Turbine game. Once I loose a companies trust with my cash, they loose me as a customer forever.

SnarlingWolf

OP just curious, is this the 5th or 6th post you've made on this exact same topic?

mykpfsu

Ever changing TOS cannot make up for billing you without your permission.  If you were supposed to be able to turn it off and were not able to I would say its wire fraud.

nickelpat

Originally posted by Burntvet

Originally posted by nickelpat

I'm 90% positive they stated in the TOS that it may change at any time without notification to the user, which means, yes, it's completely legal. It's stupid, but legal to my knowledge. I have to ask too, what game?

Just because a game company says something is legal, does not make it so. If they changed the TOS to say, if you cancel your preorder, we get to send someone to your house and kick you in the nutz, would that be legal? Nope. A customer can not agree to have their rights violated. In legal terms, it is called an "Unenforceable contract".

The reason that game companies get away with the vast majority of shady behavior, especially using the excuse "It was in the EULA/TOS," is because that assertion is never challenged in court. Who is going to sue over a $50 computer game or a $15 sub fee taken illegally? Not many people.

EULAs/TOS agreements do not mean as much as people seem to think, and it is only because no one challenges them. On the few occasions this has happened, the companies typically "settle" and insist on an NDA from all parties.

There is only one case I know of where a customer directly challenged a software license agreement and had it go all the way to a court decision, and the software company lost, huge.

I didn't think of it. Good point, I lose :P

Slapshot1188

Originally posted by mykpfsu

Ever changing TOS cannot make up for billing you without your permission.  If you were supposed to be able to turn it off and were not able to I would say its wire fraud.

 It's not that they couldn't turn it off.  It's that the company decided to turn it on by default for everyone who ever pre-ordered the game (11 months prior to release) even though they never agreed to a subscription.  Subsequently the company changed their TOS to allow billing for subscriptions for each purchase... but this is a new TOS.. the one in place at the time of purchase said you had to pick the type of sub and payment method before recurrent biulling would start.

 

There wasn't even a subscription OPTION to turn on or off for like 7-8 months after purchase...

SnarlingWolf

Originally posted by Burntvet

 

EULAs/TOS agreements do not mean as much as people seem to think, and it is only because no one challenges them. On the few occasions this has happened, the companies typically "settle" and insist on an NDA from all parties.

 Don't suppose you notice the huge hole in that statement.

 

You are saying that EULAs/TOS aren't legally binding (I interpret it that way since there are a bunch of e-lawyers on these forums who try to claim as such all the time as reasons they can do what they want and then cry when they get banned). And you are claiming the reason you are sure of this is that you know that people challenge the EULAs/TOS and win. But then say that the people who win are bound to NDAs......... which means you can not know this. Interesting.

Zookz

Originally posted by SnarlingWolf

Originally posted by Burntvet

 

EULAs/TOS agreements do not mean as much as people seem to think, and it is only because no one challenges them. On the few occasions this has happened, the companies typically "settle" and insist on an NDA from all parties.

 Don't suppose you notice the huge hole in that statement.

 

You are saying that EULAs/TOS aren't legally binding (I interpret it that way since there are a bunch of e-lawyers on these forums who try to claim as such all the time as reasons they can do what they want and then cry when they get banned). And you are claiming the reason you are sure of this is that you know that people challenge the EULAs/TOS and win. But then say that the people who win are bound to NDAs......... which means you can not know this. Interesting.

I'm guessing you missed the word typically. 

sevitoth

Did this subject really need another thread created on another board? One of the two threads on the MO board was already locked because it wasn't needed. Now we have another one.....

 

 

Slapshot1188

This thread was an attempt to leave specific company/games out of it and discuss the general situation with a wider (non-niche) audience.  SImilar to how there are threads about the SOE layoffs in multiple forums.

Burntvet

Originally posted by Zookz

Originally posted by SnarlingWolf

Originally posted by Burntvet

 

EULAs/TOS agreements do not mean as much as people seem to think, and it is only because no one challenges them. On the few occasions this has happened, the companies typically "settle" and insist on an NDA from all parties.

 Don't suppose you notice the huge hole in that statement.

 

You are saying that EULAs/TOS aren't legally binding (I interpret it that way since there are a bunch of e-lawyers on these forums who try to claim as such all the time as reasons they can do what they want and then cry when they get banned). And you are claiming the reason you are sure of this is that you know that people challenge the EULAs/TOS and win. But then say that the people who win are bound to NDAs......... which means you can not know this. Interesting.

I'm guessing you missed the word typically. 

What is actually known is that they settled, so yes, it is known that the plantiff and the company came to an agreement. What is not known is what the terms are, and the settlement is also made "without an admission of wrongdoing". Makes it harder for other people to sue.

And it is also easy to determine if they won: if they broke the NDA, the settlement agreement is void and they have to give the money back. So, because people do not break an NDA, it is much more likely that they received compensation, otherwise, they'd have no reason to not talk about it.

Additionally, all of the filings and court documents before a case is settled in a situation like this, are not sealed, by the court or subject to an NDA, and become part of the public record, so you can read the complaints that are settled all day long if you wanted.

 

KenFisher

I guess for clarity, the question comes down to:

 

Can a software shrink-wrap license obligate the purchaser to subscription fees without their expressed consent?

 

I don't know the answer.  It does seem questionable.

Slapshot1188

Originally posted by ActionMMORPG

I guess for clarity, the question comes down to:

 

Can a software shrink-wrap license obligate the purchaser to subscription fees without their expressed consent?

 

I don't know the answer.  It does seem questionable.

 NO... actually in this case they CHANGED the TOS 8 or so months after the fact.. and applied it to all the earlier pre-orders without their agreement or consent.  The original TOS said you would start a subscription AFTER picking a type (duration) and payment method.

 

So the question is basicly can a company change a TOS and apply it to earlier transactions?  I would strongly hope not.   Of course they can change a TOS... but I would think that people would have to agree to the changes (or stop using the product).  Otherwise a company could change the TOS to say that the company has claim on your firstborn child....

 

ArmaniDemon

I would definitely issue a charge back and claim to have been a victim of fraud.

Transfering payment data from one purchase to another by a vendor without explicit permission is definitely grounds for a complaint. I'd register one with the BBB as well (if anything it'll highlight their shady practices and possibly impact their business).

Zookz

Originally posted by Burntvet

Originally posted by Zookz

Originally posted by SnarlingWolf

Originally posted by Burntvet

 

EULAs/TOS agreements do not mean as much as people seem to think, and it is only because no one challenges them. On the few occasions this has happened, the companies typically "settle" and insist on an NDA from all parties.

 Don't suppose you notice the huge hole in that statement.

 

You are saying that EULAs/TOS aren't legally binding (I interpret it that way since there are a bunch of e-lawyers on these forums who try to claim as such all the time as reasons they can do what they want and then cry when they get banned). And you are claiming the reason you are sure of this is that you know that people challenge the EULAs/TOS and win. But then say that the people who win are bound to NDAs......... which means you can not know this. Interesting.

I'm guessing you missed the word typically. 

What is actually known is that they settled, so yes, it is known that the plantiff and the company came to an agreement. What is not known is what the terms are, and the settlement is also made "without an admission of wrongdoing". Makes it harder for other people to sue.

And it is also easy to determine if they won: if they broke the NDA, the settlement agreement is void and they have to give the money back. So, because people do not break an NDA, it is much more likely that they received compensation, otherwise, they'd have no reason to not talk about it.

Additionally, all of the filings and court documents before a case is settled in a situation like this, are not sealed, by the court or subject to an NDA, and become part of the public record, so you can read the complaints that are settled all day long if you wanted.

 

 

This is all irrelevant to the point. Take this as a concession of your awesomeness if you need to. It doesn't invalidate the OP in anyway. People should know that SV has essentially defrauded people. Regardless of legality, it's a deplorable business practice. 

Garvon3

You are only JUST starting to question the business ethics of a company who SOLD a BETA for full price, and released pre rendered cinematics saying it was in game footage? 

 

Ugh. 

FolbyOrb

Originally posted by Slapshot1188

9. At launch the company sent out an email from newsletter@XXXXX.com saying the game was launching and all accounts were active but people could go and turn them off if they wanted.  Needless to say after 10-11 months many people have new emails.. and who really reads most emails from newsletter accounts of old games you no longer play?

This is why it's legal. They informed the users that changes had been made to the Terms of Service and to their accounts.

The user gave them contact information. How is the company in question liable in a case where the user stops paying attention to that contact point or begin to use a new contact point?

The company held up their end of the agreement.