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General: The Great EULA Debate
Stradden
Managing EditorMember CommonPosts: 6,696
While attending the 2008 Indie MMO Developer's Conference in Minneapolis, Community Manager Laura Genender sat in on a round table discussion about the ever-popular End User License Agreement (EULA).
Every time I log into my MMO I’m faced with a wall of legal text, scrolling down for 5 long pages of information overload. Covering every topic from third-party software to account ownership rights to password protection, this EULA is your standard all-encompassing agreement between MMO provider and MMO players – but despite the fact that we click “I agree” buttons daily, how often do MMO players actually read through these endless License Agreements? And is it really worth it, considering the standard umbrella statements which leave the end user with little recourse?
This weekend at the Indie MMO Game Designer Conference, Erin Hoffman brought this discussion to the roundtable. Hoffman – a writer and game designer from philomathgames.com – is one of the leading forces behind Settlers of the New Virtual Worlds, an essay collection concerning player rights in virtual space and online games. Working in conjunction with Erik Bethke’s BetterEULA project (www.bettereula.com), Hoffman hopes to make the EULA more substantial and helpful to both developers and players.
Read it all here.
Cheers,
Jon Wood
Managing Editor
MMORPG.com
Comments
Hungry lawyers strike back! Another thing we have to thank WoW for - the game broth lawyers' attention to the market, showing potential money income.
lets see here, i have read my EULA's across all games a total of ZERO times. they are not negotiable, if they had a "play anyway" button maybe i would actually bother
badradio.com
wow, a step ahead indeed for the players rights, but, even so, the so called CCP Steller Management is nothing more than a stop gap for CCP. They only put it in action, after they were found to have Devs/GMs who were not only playing Eve, but, were actually assisting certain corps and alliances and throwing the balance of the game off for regular players, even now, CCP staff have promised many things to help ALL players, but, have failed to keep those same promises for a certain core of the players, I do agree the game is more pvp than any other, but, in a great many cases, they always seem to have the pvp players better interest over the casual passive player. The old saying goes in Eve, you want to mine, then, we will allow you to have your ore stolen from you, but, hell with you if you for trying to defend your ore, or, your mission wrecks.
And, what about SWG, the casual way that SOE/LA entirely replaced the game play, just because they rewrote the EULA to thier liking. Absolutely no regard to players in any context, or, fairness to the players who wanted SOE/LA not to change the game play at all, but, in many forum posts only wanted SOE/LA to keep thier promises of fixing the game bugs, and advance the game play.
But, SOE/LA instead went ahead, and cared so little about thier own subscribers that they refused to believe that such an exudose from the game would happen, now, its 3 years, and they still are ignoring thier player base, all in the name of the EULA
Read it all here.
This is an important discussion. EULA's and their uses and abuses unfortunately require some attention.
For instance, a EULA may say that a game company can make changes to their game over time. Before agreeing, a player should know clearly what kind of changes the company is talking about. Language like enhancement is used in some EULA's, but what does this mean? What is a reasonable definition of enhancement?
Many would assume that enhancement means additional content, improved functionality, and modest modifications to game mechanics to improve the fun factor of a game. Many would also assume that "fun factor" improvements would be made in consultation with player representatives.
All of these assumptions, however, were proven false in the test case of the New Game Enhancements released by SOE in their StarWars MMO. Bear with me as I look at this historic example in light of the present context of this thread.
Did the new enhancements add content? No, in fact they deleted a quest-line related to "unraveling the mystery of the jedi" that players had been working through, in some cases, for 2 years. Also deleted were more than 20 professions that players had mastered over a 2 year period. Is this an enhancement? Many would argue no, but "enhancement" isn't clearly defined in the EULA. Frankly, it should be.
Let's consider improved funtionality. The new enhancements introduced new combat mechanics that simply didn't work. You would click the icon, the timer on the icon would start, preventing you from using it again, but your character would not execute the skill. Also, self-heal abilities would heal enemies as well as self. Changes to the chat system rendered all players with multiple chat windows open unable to chat at all, and by some bizarre coding connection, also completely unable to move. Players had to use the mail system to discover a work around, which we then shared with the developers.
Let's consider fun factor. Is losing 2 years of quest progress and mastered professions fun? What about combat functions that don't fire, heals that heal enemies, and being unable to chat or move? These are of course rhetorical questions.
What about change made in consultation with player representatives? No, this was all done secretly, and players were horribly surprised and disappointed. This brings us to another abuse of EULAs by game companies, SOE in this case specifically.
SOE had just sold players a digital download expansion that included, among other things, new creatures for creature handlers to tame, and new loot for various professions. Immediately after VISA payments for this expansion with these advertised features were finalized, SOE announced the new game enhancements. These alleged "enhancements" removed the professions that could use the new loot and tame the new creatures. In effect, the new features advertised and purchased, were rendered unuseable. SOE's defence? EULA. They claimed the right to make changes to their game. They used this alleged right to try to justify what has been called by many a blatant bait and switch, or more simply fraudulent advertising of game features that they knew they were going to delete immediately after purchase.
The fact the SOE offered refunds to all those who purchased the new expansion under false pretenses suggests that they were not entirely confident in their EULA defence. I submit, however, that there should be no ambiguity on this point. EULAs must be worded in such a way that they clearly cannot be used as a defense for fraud or false advertising. "Enhancement" over time must be clearly defined so that players can make an informed choice about paying and/or playing.
Sadly, it is corporate abuses of EULAs that have made it necessary to examine this issue. While I regret the time and energy this will require to address, it has become necessary. I'm glad to see that this issue is being explored, and I hope that my comments may be helpful to the discussion.
You're not required to accept an EULA, but then you don't play. If you don't like the EULA, don't play, state you're not playing because the eula and spread the word to other players about the horrible rules they don't know they abide to. That's the best you can do.
And about the changes/enhancements, you must be young. Any contract you sign for power, internet, water, almost anything non specific, has a clause that states they can change it without refunding you, but at the time they change the contract, you have to sign it again, or stop using their service. That's how it goes. It's rare to find a contract/eula with a fair refunding policy.
EULA or not, RL is FFA PvP guys! :P
- "If I understand you well, you are telling me until next time. " - Ren
The important thing to realize here, that these Eula's are contracts between you and the game company. NO contract can violate state or federal laws. With that in mind all you have to read some of these Eula's and laugh, because the lawyers writing them are quite evidently unaware of that fact.
Hence I don't pay too much attention to them much anymore. Best to just use common sense, pretty evident what is wrong and what is right.
As to SOE's blatant attempt to use the Eula as a defense when it made the drastic change to SWG right after an expansion. It would not hold up in court, that is why SOE backed down on the refunds. Consumer protection laws would have made chop suey of their Eula if anyone brought a class action against them because you can't agree to a contract that violates such laws. It makes the contract null and void.
EULAs are interesting beasts. I know with Sword of the New World we spent about 3 months going through and writing, editing, re-writing and re-wording the EULA to make sure it fit Federal and International laws. The biggest issue truely is 'ownership'. Without our ownership clause I know we would have a lot of issues with removing players (even with it, there are myriad legal snaffoos with banning accounts). The most important of which is not refunding an account blocked for violation of policies.
As a player I understand that there are rules and if I break said rules I lose my rights to any monies I spent on the game. As a publisher this is critical since it opens up a whole can of legal worms. Which is why the 'ownership' clause is important.
As far as content changes, I do feel that certain major changes deserve a refund but others do not. We are not going to give you a refund because we nerfed a class (especially one that was clearly overpowered). But when we made our move to Free2Play we did MAJOR compensations and infact refunded players who were no longer going to be playing our game due to the change. But in reality that is more of a courtesy thing. It is understandable that a major change like that would require fair compensation and sometimes full refund. Unfortunately not every company is willing to make consessions for their players and that doesn't really have anything to do with a EULA, that has to do with basic customer satisfaction.
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Even if i blindly agree (i suppose I am dyslexic can i use that in a court?) to all EULAS of mmorpgs i prefer to play, i wonder that if even if the Character i create and all the items i use are not owned by me do i own the literary property of how to use and combine these "tools" to progress and prevail my character?
I demand a real contract between any company and an end user, at least to respect the initial rules of a game and don't alter them in order to attract a different player base (thus different rules) to any game that i choose to play.
Many service industries are based on the principle of "informed consent." Relevant legislation defines what it means to be "informed" and who is able to give "consent" to receive a particular service.
EULAs, as used by SOE for example, are very sketchy on the "informed" aspect of this principle. Is the customer given sufficient, accurate information about what may or may take place after they make payment? I would argue no. SOE has exploited this to justify mistreatment of their players, and taking money from them under false pretenses.
While I don't believe that a EULA clearly defining possible game changes would solve all of the ethical issues here, I do believe it would be a step in the right direction.
If for example, SOEs SWG EULA would have said, "we reserve the right to alter the fundamental game mechanics at any time, and this may render any or all of your in-game progress null and void," I would have chosen not to play. Many would have chosen not to pay for a year's subscription in advance. Did they make a truly informed choice to play and subscribe for a year? I would say no. The EULA's description of possible game changes is vague at best, and SOE's use of the term "enhancements" for the NGE was an obvious attempt on their part to exploit this lack of clarity to their own advantage at their players' expense.
I would advocate for a standard that requires game companies to list the possible changes they reserve the right to make to the game. If something is not on the list (e.g. delete professions, change the game from rpg combat to fps) than they can't do it. Doing so would violate the contract.
It's been pointed out that consumer protection legislation cannot be over-ridden by a EULA. I agree wholeheartedly with this point, and I've made it myself. BUT vaguely written EULAs serve to "muddy the water" so to speak to the point that some lawyers and prosecutors pause before taking on a game company that has been accused of fraudulent activity. I would also argue that broad stroke EULAs are written by unethical companies with the intent of obscuring consumer rights and muddying the water with regard to possible legal recourse.
Let's clear the water and remove the tool of obfuscatiing EULAs from the hands of disreputable companies.
As for me being young lol, I wish
EULA as worthless and can't even be called a contract because with a contract once both parties have agreed to it a contract doesn't change unless both parties agree, but with EULA one side is allowed to change it when it suits there best interest.
EULA are not worth the time to read because it is not a contract as it is nothing more then a wavier to all your rights, and if there is something not covered under it, it will be added when then need it.
Showed this to someone here in my office and he asked a seemingly stupid question.
If a player is only paying for access to the server and the Company owns the character, what is stopping someone from sueing for compenstation for advancing their character?
At first it just seems wrong, but If someone spends 400 hours advancing the company's character (ie property) shouldn't minimum wage laws come into play? I couldn't give him a clear answer for this lawyerish question. But it is a funny non-gamer way of looking at it.
I've actually been in *ponder* mode about EULA/ToS but from a slightly different perspective.
Companies can choose to enforce these things as they see fit and to their benefit.
My takes is that when I press "accept" and they charge my credit card. We have entered an agreement/contract. Which has two parts:
1) I choose to agree to their terms
2) They are required to enforce their terms.
The reason I started thinking about this... I went back to play a certain MMO for a month. I saw blatant speed hacking... I've played this game since its beta.. I've played every class in this game. I know what they can and can't do and at what levels.
So to make it short.. the company is NOT enforcing their ToS/EULA.
Well obviously I hit cancel (again) and will move on.
But what I was wondering... is it possible to sue a company for breach of contract (for not enforcing their ToS/EULA)?
I personally hate courts etc.. but I do believe certain people and behaviour have no place in MMO's. Whether a game is basicly "dead" and the company is working on their next game.. isn't really a factor to me. Yes they will get bad word of mouth and perhaps have less subscribers in their next game.
Basicly... I would just like them to have to actually enforce the rules they have written.
/shrug
Nothing I am actually going to spend time on.. just something I thought about trying to play an old game for a month.
(more or less to try to make it clear... I believe a company should enforce their own rules or be required to offer a refund to people who don't wish to play with people using 3rd party programs (speed hacks, radar etc.)
It sucks how the EULA's are worded to confuse people ...gotta love legal mumbo jumbo...but anyway to address this.
I can see how people not familiar with games would say such a thing sounds funny though. Honestly game companies should just come right out and say it 'the time and effort to buidl the character 'sheet / template' is yours but the art work, animations, models, gear, & items are all ours. Thats basically what some of the legal mumbo comes down too. They don't want someone taking their artists work and profitting off it since they PAID to have that stuff made for the game.
EULA's are shoddy at best the game industry really needs to step it up and come up with a uniformed policy that protects them from us and us from them.
Please Refer to Doom Cat with all conspiracies & evil corporation complaints. He'll give you the simple explination of..WE"RE ALL DOOMED!
Many service industries are based on the principle of "informed consent." Relevant legislation defines what it means to be "informed" and who is able to give "consent" to receive a particular service.
EULAs, as used by SOE for example, are very sketchy on the "informed" aspect of this principle. Is the customer given sufficient, accurate information about what may or may take place after they make payment? I would argue no. SOE has exploited this to justify mistreatment of their players, and taking money from them under false pretenses.
While I don't believe that a EULA clearly defining possible game changes would solve all of the ethical issues here, I do believe it would be a step in the right direction.
If for example, SOEs SWG EULA would have said, "we reserve the right to alter the fundamental game mechanics at any time, and this may render any or all of your in-game progress null and void," I would have chosen not to play. Many would have chosen not to pay for a year's subscription in advance. Did they make a truly informed choice to play and subscribe for a year? I would say no. The EULA's description of possible game changes is vague at best, and SOE's use of the term "enhancements" for the NGE was an obvious attempt on their part to exploit this lack of clarity to their own advantage at their players' expense.
I would advocate for a standard that requires game companies to list the possible changes they reserve the right to make to the game. If something is not on the list (e.g. delete professions, change the game from rpg combat to fps) than they can't do it. Doing so would violate the contract.
It's been pointed out that consumer protection legislation cannot be over-ridden by a EULA. I agree wholeheartedly with this point, and I've made it myself. BUT vaguely written EULAs serve to "muddy the water" so to speak to the point that some lawyers and prosecutors pause before taking on a game company that has been accused of fraudulent activity. I would also argue that broad stroke EULAs are written by unethical companies with the intent of obscuring consumer rights and muddying the water with regard to possible legal recourse.
Let's clear the water and remove the tool of obfuscatiing EULAs from the hands of disreputable companies.
As for me being young lol, I wish
I would only add that SOE did not have the guts to make the NGE change without input (threat) from its partner. Star Wars is a very high profile Intellectual Property. Linage is really a low level property unless you ask someone in the Asian market. World of Warcraft's origial orgin is a very good RTS game but not on the level of noteability as Star Wars. Why was Linage & Linage2 along with WOW gaining more subs than SWG?
Lucas Arts Marketing controls much of what is choosen in the direction of SWG. They package, promote, cut deals with online services and research the demographics for the game. It was and is an insult to Lucas Arts for other lower visible IP's to out do SWG in subs. WOW identified the larger purer MMO customer that all target now in thier demographics. SWG was originally a world simulator "sandbox" MMORPG that appealed to an older demographic that was much smaller in coverage. This is key in understanding the marketing mindset. I will identify "Someone" demanded that SWG be geared to capture the WOW demographic at the cost of the then current game machanics. At the cost of the current low number(actually quite high for the average market) dedicated veterian playerbase. The NGE was the magic formula to win the new kiddies over and put to sleep the old game with its issues. They knew they would loose many vets but the gambled return on the new target audiance would quickly out weigh the loss and bad mouth.
The NGE failed. They now have an idea of how far they can stretch the brand assoiaction of Star Wars before a product will not sell. The real problem with SWG was not Target Demographics but the SOE philosphy of MMO marketing. SOE has worked very hard in the last 5 years to provide a diverse catalog of MMO offerings that crosses many generas and interests for thier Station Pass. Low priority for quality of games at launch and further lack of dedication to improve those offerings has given SOE its less than steller rep. Lucas Arts has been marketing SWG with this SOE lead.
At no time in the life of SWG(Pre-publish 9, Pre-CU, CU, NGE, post Chapter 6) has it been bug free, stable, polished, complete or directed to the general acceptance of the common MMO market. Brand assoication could only carry the game as far as it can before all realize how sour the milk is.
As to the EULA, I agree with ya' on that Arc, old bud.
I can see that. What worries me was a few years ago when I first read about legal professors talking, I hope theoretically, about what might constitute ownership of virtual items. They were coming at if from a number of different angles.
1) IRS taxing gains made from selling virtual items. Apparently can be covered as you are suppose to pay for profits on sales. Congress may not need to create any new laws to make this interpretation! And what if they do pass a law to aid IRS which makes a legal definition of what virtual property means? With billions of dollars in gaming revenue every year, the feds are taking notice.
2) Civil lawsuits, such as inappropriate loot assignment.
3) Hate crimes.
4) If PKing with FFA is allow, could they be considered be virtual crimes? Why or why not?
Do we even want people outside the gaming hobbies asking these questions? At some level, I don't. It's just a game.
It sucks how the EULA's are worded to confuse people ...gotta love legal mumbo jumbo...but anyway to address this.
I can see how people not familiar with games would say such a thing sounds funny though. Honestly game companies should just come right out and say it 'the time and effort to buidl the character 'sheet / template' is yours but the art work, animations, models, gear, & items are all ours. Thats basically what some of the legal mumbo comes down too. They don't want someone taking their artists work and profitting off it since they PAID to have that stuff made for the game.
EULA's are shoddy at best the game industry really needs to step it up and come up with a uniformed policy that protects them from us and us from them.
Well, what is ownership? If player A is playing mmorpg XYZ with XYZ retaining rights to all the above art and IP, if player A sells his "character" to player B, he has no way to sell XYZ's property. But that which isn't XYZ, should be sellable. I am against sellers, but they game companie's position sounds weak on some level. The question is: What, if anything, could a court say the player does own in the situation?
What I dont understand is how mmo companies can prohibit you from giving away/selling your rights to play the game.
I dont think banning an account for being sold to someone else can stand in any court.
Ofc the items you have on your character and the character itself are virtual things/artwork and you cant claim ownership of them, thats pretty obvious. But what about YOUR time you invested in advancing your character. Above all you dont claim to pass over any ownership rights of a character but ask compensation of the time spent to advance it. That should be totally acceptable.
To answer the common question really quick, game companies can prevent you from selling/transferring characters by the same legal resources that prevent reselling most software packages. You purchased a non-transferrable license from the publisher. Some companies allow you to transfer individual characters through various means as an exception to the normal EULA, but you still have your license of the game, and not a different one someone else was using.
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I feel like adding so much to the conversation here, but without any real legal expertise, I'm not sure what I have to say is factual or any real bearing on the law. I have no new arguements to present. I would just like to see the indie publishers succede in helping change the market that we all enjoy and love by making it more consumer friendly.
Other than that, I really wish SWG subscribers had filed suit against SOE. Likely, the suit would have been settled out of court for probably the same thing that SOE agreed to. (Contrary to popular belief, companies settle, not because of innocence or guilt, but because it's generally cheaper to settle after short arbitration than potentially years in a court congested with criminal cases. Which would you rather do: settle with a bunch of people for say.... $15,000 in goods/services or pay your lawyers a few hundred thousand? Think of a bottom line here, and not a moral stand.)
It is my opinion that game companies have a right to place any limits and conditions they please on THEIR game. If the player doesn't like it., then the player does not have to play.. Plain and simple.. no debate.
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It's just me, so open the door.
You rent an apartment and while you're living there, buy things to put in your apartment. After two years of living there, a friend (or you) throws a party that gets out of hand and the landlord changes your locks and doesn't let you back in to get your stuff (unless you can somehow prove your innocence).
This is (sort of) how the EULA works. No one is arguing the fact that the game company does or doesn't own their code and product. The catch comes with the time spent in the game. Is this time worth something? As far as the EULA is concerned, your time spent isn't separate from their property/code.
As others have mentioned, there's also the issue with people paying REAL money for one type of a product or game and then having that game changed drastically halfway through (as is the case with SWG). In this case, it'd be like ordering one product and then the company turning around and giving you a completely different one, then telling you there's nothing you can do about it. This isn't legal, but they make it very difficult for people to bring them to court by making a very vague "we can change the game however we like." Honestly, no one would buy groceries at a grocery store if the store had the right to stop you as you're walking out with your groceries after buying them and then remove and replace your items with whatever they'd like. But MMOs are getting away with it because they can wave the EULA around saying that they "warned" players that changes could be made at any time and they agreed to it.
Sometimes it's a good thing that companies are able to cover their rears. But the EULAs do need to change so that players aren't treated like crack addicts who only get their addictions if they behave, take whatever is handed to them and keep shelling out the money.
I always read the EULA the 1st time I install a game. Honestly though I only skim over it when it gets updated over the course of a game's evolution.
Regardless, that document clearly states what you can and can't do with their game. Ok, well maybe "clearly" is a bit relative with all the legalese in the text. In real life there is a statment that "ignorance of the law is no defense" that meaning that even if I don't know that stealing is illegal, I can still get arrested for stealing. Same applies here, if I didn't know selling ingame currancy is against EULA doesn't mean that I can do it without penalty.
I know it will suck, but honestly folks read it at least once all the way through.
I think the problem is that players do not read the EULA. They have no idea what it says or limits. When I did live in apartments I always read the contract. If the contract said that you could have no loud parties then I would make a decision if I wanted to move in or not. It is the same with online games. It is not the game companies fault if players do not want to read the EULA.. I do read them. I know what I am agreeing to when I click accept. My game is EQ2 and I know that SOE can change the game any way they wish. And they have. Online games are entertainment. You pay a monthly fee, for most of them, for the entertainment you are receiving while you play. The monthly fee is not something you are entitled to get back if something is changed which causes you to no longer enjoy your play time. If that is the case. you quit. But you are not entitled to get any compensation for past playing time. That just doesn't make sense.
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It's just me, so open the door.
I say let players have ownership of their characters. When they quit, give them a digital download of a binary file that's useless to all but the curious, with no way of uploading it back in. There, they own it, do what they want with that file.
Umm, I fail to see the problem with banning and not refunding accounts for violations. Every company is allowed the rights to service. i.e. The right to provide or deny service. Criminally, that right can't be broken. Civil rights however can cause cases where the company is sued, but then again, if you look at someone funny or breath the wrong way, at least in the US, you can be sued. I understand the issue of having the funds to actually fight the perpetual battle that will ensue from things of that nature, however, setting precedence would probably solve the issue quickly.
As to EULAs. Did any of you sit down and spend millions in development cost and years of coding and testing to make the game? Are any of you providing space, bandwidth, facilities or any other form of support to the company besides having an account? As an IT professional, I am well aware of the enormous task involved in setting all this up. For a real life example that everyone can equate to, if you built a house with your own hands, would you not have rules about what happened inside that house. If one of your friends came over and trashed that house you worked on so hard, would you say, "Oh well" and let them continue to come to your house? The EULA is a contract, yet companies like Black ICE entertainment and IGE have made a mockery of them, thereby making contracts no longer a valid legal stance. However, in the US, remember that, playing MMOs is not a right. It's a privilege, and with any privilege, it can be removed. Again another real life example, you do not have the right to have a driver's license, you have the privilege. If you speed too much or have too many accidents, that privilege will be removed. Also, as Kasmar pointed out, ignorance of the law, or rules, does not make breaking the law, or rules, right.