The Great EULA Debate
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.
The roundtable started with a definition of basic terms: what do you find in your average EULA? Cutting through the legal jargon, your EULA contains basic concepts such as “We can ban you if you don’t listen to rules.” “We own your characters, accounts, and character possessions – you are just borrowing them.” “You can cancel your subscription at any time, but no refunds after bans/cancellations.”
From the above, we started our conversations on the concept of player ownership, and several attendees – including our moderator, Hoffman – felt that EULA statements about character and account ownership are downright offensive and contradictory.
If players don’t own their own characters and accounts, why do the backs of our boxes say “progress your character through 70 levels of immersive gameplay”? This problematic situation is magnified in the 2005 court case Bragg vs. Linden Lab, where Linden’s EULA was contradicted by their advertisements for a world “built, created, and owned by you. Game companies promote an atmosphere where players believe they have personal ownership over their character and experiences.
For game companies, though, there’s a similar catch 22 of negative effects: they want to allow players a personalized and unique existence, and have no sinister plans of seizing our characters for their own evil purposes…but at the same time, these legalities are needed to cover their company backsides against property loss suits in the event of “acts of god” (i.e. destroyed databases) or necessary bans. Theoretically, if players owned the characters, companies would still have a right to ban – but they’d also have an obligation to compensate.
For Hoffman, this might just be the answer. Hoffman is working on the development team of GoPetz, and they fully intend to compensate banned players. To make the GoPetz EULA more binding in court and substantial to the GoPetz player, users will be paid in-game to sign the EULA. Hell, GoPetz is even giving players a say in development priorities: the developers will release lists of features they intend to work on, and players can vote to prioritize these features by spending “points” (i.e. it might cost 5 points to prioritize a new armor graphic, but 50 for a new zone).
While this supports the player, I’m unsure as to how successful some of the above features would be in your average MMO; for example, if NCSoft had to compensate every gold farmer they banned from Lineage 2 for the gold and items lost, they’d be in bad shape right now! And what if a player dupes a valuable item – would they be owed compensation for their 30,000 diamond necklaces? I love the idea of giving players input on content, though, and so do several other game development companies – ATITD has let players vote on “laws” for years, and EVE is reinstating the Council of Stellar Management to advise designers.
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 ;)
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
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
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.
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.
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.
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.
The problem is... there IS debate. Though no real life comparison works perfectly, here's one to give you an idea:
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.
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.
So let's say I buy a MMORPG at timecard, open it, install it, run it, read the EULA and decide it doesn't match the advertising or I just don't agree to it. Can I return the game and timecard for a full refund? Most stores don't let you return opened merchandice and that goes double for software unless you can prove there's a physical defect. Why should I have to waste $60+ on a game before finding out it has a bad EULA or otherwise doesn't live up to the advertisment?
Most companies provide a trial issue of some short time, simply because they are aware the retailers are taking advantage of the customers by not allowing them to return merchandise that did not suit their gaming need. The answer to your question is therefore obvious. Take the trial time and see if you like it before you buy it.
The money paid to the game company is for the right to access their server. The price pay for the game is the cost paid when you buy it at the store. So the month fee is a Service fee, all they have to show is that they provided that service.
So with items and characters on their server, its just game code it was their property from the start to the end regaurdless of the time you spend collecting it. Same with the content of the game code, its theirs always was and they can change it.
Thats where the companies are coming from the players see it differently and laws and courts are still mostly vague on the topic.
A lot of people are on the same page with what you wrote. There is debate, and IF (perhaps BIG IF) something happens in law or interpretation of law, everything could go out the window.
Very nice article, it got me thinking a lot.
My thoughts on EULA's are very simple. It's a crying shame that we even need them. Some lady burns the roof of her mouth from a cup of McDonald's coffee; then sues McDonald's for millions (and wins) because there wasn't a warning label on the cup that read "This shit is hot!", and suddenly video games have to go through a huge mess of legal crap.
*sigh* Oh, how I wish issues like this could just be solved with some plain, old-fashioned common damn sense. This is precisely the reason why I should be the king of the world, where I reserve the right to judge all people(s) and their issues. If you *uck someone over.... the penalty would be easy to predeict - I *uck you over! End of story.
The world would be so much happier if I were king. Vote for me in 2016!
While I agree that EULA's are important, I believe they are misnamed. They are End User License Demands, pure and simple. An agreement is drafted between two parties, with benefits for those parties. EULA's are drafted by the game company, and are designed solely to protect the game company. As joe schmoe gamer, my rights and concerns are not addressed in EULA's. I have the option to either agree to them or not, with no input or reasonable feedback option.
Then there's the problem with them changing. Sure, when I start playing the game, I read through the EULA, but down the road, the company decides to change something, or sometimes several somethings over the course of my playing. I have no idea these changes are implemented, but I still click play anyway, just because I believe I am bound to my original agreement. I think an easy way to address this would be just require the companies post 45 days in advance their intentions to change the EULA, what the changes are, and how they affect me. Then I can decide, 'ok, I disagree, and wish to cancel my payments prior to the change,' and off I go, looking for a new MMO to play. No fuss, no muss.
I agree that companies need to protect themselves. I just think that I as the End User should be represented in the drafting of these EULA's. I don't know how to accomplish that, other than the project mentioned in the article. I think that's a great step in the right direction, and a game should have some sort of badge saying they follow the EULA that is drafted by this project, providing it turn out beneficial to all, just like they have ESRB badges. If a game chooses not to follow a standard like that, that is fine too, but I'd be a lot more likely to play games with said badge.
As to ownership, the software company has every right to ownership of your character and equipment. Your time spent on the game is NOT an investment, if the game falls under the entertainment heading. Let's say I buy a tv, watch it 20 hours a week, then 2 years down the road, the channel I like is taken off the air. I can't sue the manufacturer because the reason I bought the tv has been taken away.
It mainly boils down to the fact that I want any agreement between myself and a company to pay respect both to myself and the company, not just that company. I want my consumer rights protected, and I don't think I should have to hire a lawyer to make that happen. SOE is the prime example of what happens when the consumer has no say, because they are arrogant and don't listen to what customers say; that's why we have things like the SWG fiascos.
I will be VERY happy if this EULA project comes out with some positive results. I'd rather not have to drag the government into policing my gaming experience. That will never turn out positive for anybody. The IRS example alone sent chills down my spine.
I like your idea of having the user's interested represented in the End User Agreement. I also agree that users should be informed well in advance of changes that affect the service "agreement".
I also understand, I think, your views on player progress not being an investment. I think there are some fine, but important, lines here though. For example, I'll stick with the television example you're using. Let's say I respond to a marketting campaign by a cable or satellite company that says for 60 bucks a month I'll receive a bundle that includes the sci-fi channel, a movie channel and a sports channel. Should this company be able to change my bundle from sci-fi, movies and sports to documentaries, fine arts and the BBC news immediately after they receive my payment? Hell no. Yet, this is pretty much exactly what SOE did with its NGE disaster, and they used EULA as their defense. Any EULA that can be used to justify this type of blatantly unethical behaviour is a bad EULA. Any steps that would prevent the existence and unethical use of "agreements" that are designed to undermine consumer rights would have my full support.
I also still feel that EULAs should be very specific regarding what can and cannot change in a service. There should be no surprises for the consumer. Vaguely worded EULAs that do not give people the information they need to make an informed decision about subscribing need to be clarified. Game companies can do this, and in my view should do this without any fuss. The alternative only reflects a desire to reserve the right to dupe their playerbase. If companies can make this adjustment on their own, excellent. If they require oversight, so be it. I still feel this will be a shameful waste of taxpayers money and legislators time and energy. And, at the end of the day, government regulation may not look pretty to anyone, game companies or customers. SOEs repeated wrecklessness, unfortunately, may already have initiated a chain of events in this regard.
On the side of the rights of the service provider. Should they be able to ban people who clearly violate the terms of service? Of course they should. Should users receive compensation for subscription fees paid in advance? My thinking here is much like my thinking on other EULA related issues. Whether or not compensation is available should simply be made very clear in the EULA. Users should just have the ability to make a truly informed decision about their decision to pay and play.
So,
-EULAs should be very clear about what may and may not change in the service being paid for. This will eliminate unpleasant surprises like SOE's NGE.
-They should also be very clear about what constitutes a violation of the user agreement.
-They should then be very clear regarding how such violations will be addressed, and whether or not subscription fees are recoverable.
Ambiguity lends itselft to abuse. It's more clarity that is needed in my view to protect the rights of both service providers and users. There should be no loops holes left for the purpose of allowing one side or the other to crap on the other. Right now, in some EULAs, such "crapholes" abound. They can and should be sealed over with clear and accurate information.
I can't remember where I read it, but EULA's are not valid in Europe. As I recall it was something about the fact that it is impossible the the customer to read the EULA and dis-/agree to it before actually unpacking it.
When the sofware is unpacked no store will refund it.
Will see if I can find it again.
greedy lawyers, scared devs, or devs with mindsets like they are gods (lotr anyone?). EULAS, got to hatem, cant play withoutem until the fans finally say enough or a company grabs it balls and takes subs from other more restricting games the message will simply die, and thats what the afore mentioned folks hope for.
As diverse as the demographics of all MMO's are, (8 year old school kids to 50 year old Accountants) its a wonder that there is not more attention to Virtual Property Law. I feel after seeing this thread that a Lawyer could specialize in this field. Standard EULA language could then be established as a industry norm. This would highlight when a given game agreement deviates in its terms.
At any rate, I think this is an important issue for both parties rights to use a game.
My problems with most EULAs are twofold:
First, the company establishing it insists that you agree that they are not accountable for anything they do, ever. You have no recourse, no right to due process, no right to fair and honest practices. (This is also common in most contracts in general.) Modern corporations take the ass-covering way too far; yes, you have to protect yourselves, but there's a line and almost all of them cross it.
Secondly, the EULA -- which is being read by a layman -- is presented in legalese. They word it in such a way as to either be incomprehensible or very difficult reading for anyone without a law degree. This results in players not fully understanding the ramifications of the agreement, and also in many people skipping the EULA entirely and just clicking "I accept" since they've already payed for the game, anyway.
The problem with the EULA agreement is this: Its complicated but in the end it says we ( the company) have all the rights and you ( the player) have none. You click yes and say you agree to that because if you do not you cant log in and play even though you have already paid for the service and committed months or even years of in game work to developing your characters. The EULA and other click to sign contracts that guard the gateway to virtual worlds are subject to change at the whim of the company and that is something you also agreed to in the EULA.
If there were laws ( and there should be) that were made to control unreasonable agreements and contracts, then this would be a prime example of consumer abuse. We have become used to it but that does not mean that its ok. It is like this because there is little if any legal president to determine if consumer rights have been violated by said contracts, or even if the consumer has any rights at all.
Perhaps some of our more cerebral gamer brothers and sisters should consider putting some explanation and complaints together in a way that those who have influence on laws could understand. This isn't something that companies will offer of good will. They exist for profit and nothing more. Believing in some kind of benevolence from an entity that has its birth in profit is the worst and most foolish kind of mythology.
Hmm are we a bit aggressive in pressing for our own interests? I mean we as players.
The stake on the table is not really on par. As a gamer, my risks are my $50 box, and $12 monthly. The hours I spent in the game are hours enjoyed, not hours of labor. I love it. Its enjoyment, and its why I pay for the hours.
As a producer, the stake is huge. Billions of dollars in development, thousands or millions in maintenance, patch ... . Additional risk of billions if some freak find a loophole in the EULA and start some pointless court action.
With such skewed shouldering of risk, I see every reason for us to have some more protection for the investors, so that they will keep making and maintaining games. If we allow some McDonald customer to fry her lips and sue Bliz out of business, we all will suffer. They will be no more games to play, and we will have to talk about games like we talk about dinasaurs.
On your first point, yes, its always an issue of balance of power, and the balance of power does not come from us trying to fight against the supplier. No. It comes from other suppliers COMPETING against this one. In the earlier days, we only have UO (sinking) and EQ. No other games. If SoE screws us, oh damn it, we have to take it, buy a new account and grind again. Do not bother what the EULA is, unless I am rich enough to try to bring SoE to the courtroom, forget it.
Today, if SoE bans my account, hehe no problem, let me pull down the game list on MMORPG.com and flip a coin. I have to flip a coin, as there are toooooo many games to choose from, and EQ2 or whatever is lost in the list. SERIOUSLY: I am not taking a shot at EQ, EQ2 or SoE, its just a figurative way of speaking. And, well people like to bash SoE for everything, so why not?
As for the issue of incomprehensibility of legal terms, oh well, I find the same when I read my medical records. Honestly, its not even legible. So what? I do not care. If the doc fix my ailments I will revisit him. If not, next doc along the street. If I like the game, I play no matter what the EULA is. If I have doubts about the hours I spent in that game world, I know where the cancel button is.
My bottomline: its a game. I do not need to acquire a doctorate in law to diagnose the EULA before I start enjoying the game. Or maybe I should not bother read the long list of EULA lest it spoils the fun factor. All I need to know is: do I want to log on again?
Obviously the above poster is a casual gamer and it's not a big deal for a casual gamer to spend his 2 hours thrice a week hopping from one game that interests him/her to another.
The whole idea here is that we, aws the player base, can force changes to the EULA. As the MMO player base grows in the hundreds of millions, any substantial chunk of that number can most definitely mandate changes to EULAs whether SOE and alkl other game companies like it or not.
While minor changes/upgrades/updates to a game are acceptable even expected, complete revamps of a game into another game -- something players did not buy or subscribe to (as in the Star Wars Galaxy NGE fiasco mentioned above) -- is totally unacceptable. I haven't followed the SWG debacle, but I agree with the poster who said that, if they haven't done so already, pre-NGE SWG Jedi and top level crafters should sue Sony Online Entertainment.
Regardless, marketing disasters like the SWG NGE and forcing the early release of Vanguard clearly reflect SOE's total disregard for their player base and, by extension, the MMO player community as a whole because "we're SOE, the big boy on the block, and we can do whatever we want." This is why many many veteran MMO players will never, ever again touch any game SOE is even remotely connected to.
Unfortunately the EULA gets more wordy and full of legalese because more people are trying to hack/bot/cheat by getting around the rules they agreed to. Typically like "it doesn't specifically say I can't do this" or "it doesn't specifically say I can't sell my gold for X dollars". So the companies are forced to get lawyers to draft up more and more wordy agreements.
Not having a signed paper doesn't mean the EULA isn't valid. I've done my taxes online and never signed a piece of paper, does that mean my tax refund check sent to me wasn't "valid"? I've bought non-subscription products online with a credit card, yet I didn't sign a receipt, does that mean the purchase wasn't "valid"?
If less people hacked, botted and bought/sold ingame items, I bet the EULA's wouldn't be so dern wordy...
I have no problems with the EULA, if:
1) MMO publishers can restrain or reduce their live teams.
2) MMO development starts to reemphasize stability over agility in design philosophy.
3) Either the box price or the subscription fee gets dropped (if it's just the box price, then it's easy to jump in and out according to the changes. If it's just the subscription fee, then it's easy to consider the MMO a service that you partake in at will).
I have no problem with subscription fees, if the game is progressing and developing. Guild Wars is lacking the depth of other games, but then again it's non-subscription.
The current state of the EULA is due to companies trying to protect themselves and their work. Simple fact is people will always try to cheat and/or get around the rules. Look at a cell phone contract, it is far more than just "pay us X dollars per month and you can talk for Y minutes". My last cell contract was 4 frikking pages long!