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The Courts Government Entertainment Games News Your Rights Online

Two New Class-Action Suits Against EA Over DRM 336

Posted by Soulskill
from the ea's-chickens-have-come-home-to-roost dept.
In September, we discussed a class-action suit filed against Electronic Arts over the DRM in Spore. Now, two new class-action suits have been filed that target the SecuROM software included in a free trial of the Spore Creature Creator (PDF) and in The Sims 2: Bon Voyage (PDF). If this sort of legal reprisal continues to catch on, EA could be seeing quite a few class-action suits in the future. One of the suits accuses: "The inclusion of undisclosed, secretly installed DRM protection measures with a program that was freely distributed constitutes a major violation of computer owners' absolute right to control what does and what does not get loaded onto their computers, and how their computers shall be used ... [SecuROM] cannot be completely uninstalled. Once installed it becomes a permanent part of the consumer's software portfolio ... EA's EULA for Spore Creature Creator Free Trial Edition makes utterly no mention of any Technical Protection Measures, DRM technology, or SecuROM whatsoever."
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Two New Class-Action Suits Against EA Over DRM

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  • by AM088 (1170945) on Sunday November 09, 2008 @01:32PM (#25695783)

    I installed the Creature Creator back when I was still looking forward to Spore, and I was unaware of that the Creature Creator came with that crap too until today.

    Does anyone know of a way to remove it?

  • by Anonymous Coward on Sunday November 09, 2008 @01:51PM (#25695943)

    The gaming industry does not listen to its customers, and has not for years. Before 'EA' became the monster it is now, it was called 'Electronic Arts', and in the early nineteen eighties it had a motto: "By gamers and For gamers". Sadly it has cast aside these noble intentions for over a decade. Like 'Lord British' with "Ultima IX", the industry cares nothing for its customers except how much cash can be wrung or extorted from them. The industry has also centralized into a de facto monopoly. As such their bad behavior has intensified as they now know that they don't care, they do not HAVE to care, as they think that customers can go nowhere else. It is this public be damned attitude that needs to be addressed. Obviousely the industry is not listening because it does not have to listen with its ears. Its ears were wired shut years ago. It only listens with its ass! Kick it hard enough and often enough and it will be forced to listen or go broke. We gamers need to realize that:
          One: All the good games have already been invented
          Two: There is a great deal of good old game software, like WarZone 2100 (open source now) out there that we can use
          Three: We customers have the power to bring these monopolistas down by using the boycott.

    Boycotting the monopolistas will eventually force them to take DRM out of their products, and to bring quality products back to a marketplace that has been bereft of them for years. Companies are increasingly putting 'eye candy' in products at the expense of playability..another gripe. Back to the point, DRMers will at first claim to be free of it, but many will conceal it and lie about it. The way to stop this is to demand that companies put up a 500 million dollar bond that instantly forfiets to all its' registered customers as soon as DRM is found concealed in their new products. Some may call a half a gigabuck as too excessive, but present day monopolistas are capitalized in multi-gigadollars American, and a half a gigabuck is the smallest present day amount that will cause real pain to a producer enough to force change. Remember these monopolistas are soulless present day BuchenWalders who take pleasure in forcing ninety years old grandmothers to live under bridges and freeze and starve in the dark all for 'the possibility of so called infringment'. Remember also that these monopolistas who hide behind the artists who create their capital often do not pay those artists anywhere near their due. These crimes by publishers are an old story run over from the music industry. Perfect example is the lowball 5 million bucks paid the Beetles for an early collection of their songs. One only need do a little googling to find other examples of cheating by the industry of their benefactors. Again, kick this industry monopoly in ass with boycotts until it hurts, and hurts enough to force DRM out of our machines. While we are doing that, we should also look to our fawning sock puppet politicians who are drunk with industry bribes. Yes bribes. Common folk do not 'contribute' near the amount that monopolistas do, and monopolistas do their bribing (political contributing) far more directed and get far better results. The way to counter this is with something that we gamers have that the monopolistas do not, boots on the ground. We can act personally and collectively to campaign for change, and for the political opposition of the lackeys of the monopolistas. We can to this for free, and collectively if there are enough of us we can make a difference. Maybe enough difference to give pause to these servants against the public trust before the next time some monopolista calls in a 'marker' from them.

  • by Red Alastor (742410) on Sunday November 09, 2008 @02:18PM (#25696165)

    Also, this is not a contract. Clicking 'I agree' is not a legal way to sign a contract and it is not legal to unilaterally add conditions once a deal is done (once you gave them money, they can't force more conditions on you). They know this, this is why they call it a license. However, a license cannot only grant you rights, it cannot remove them from you.

    Hence, EULAs are bogus.

  • by Repossessed (1117929) on Sunday November 09, 2008 @02:55PM (#25696499)

    The courts do not see it that way. I've seen a number of cases were EULA's were deemed valid, I have yet to see one where the EULA was deemed invalid (though parts of it being unconscionable are probably common enough).

  • by williamhb (758070) on Sunday November 09, 2008 @03:00PM (#25696545) Journal

    Also, this is not a contract. Clicking 'I agree' is not a legal way to sign a contract and it is not legal to unilaterally add conditions once a deal is done (once you gave them money, they can't force more conditions on you). They know this, this is why they call it a license. However, a license cannot only grant you rights, it cannot remove them from you. Hence, EULAs are bogus.

    Some courts have upheld EULAs in the past. In some cases they have even upheld shrinkwrap EULAs that you cannot see until after you have accepted them (where a 'reasonable person' would have expected the clause to be present in the contract). I am not a lawyer, but I strongly suspect the parent poster isn't either and you should think twice about taking his "EULAs are bogus" advice.

  • by BuckoA51 (1119431) on Sunday November 09, 2008 @03:57PM (#25697029)
    Only recently I went back to my copy of STALKER - Shadow of Chernobyl only to find it was unplayable on my PC unless I downloaded a no-cd crack. I don't buy it when companies say "oh don't worry we'll make sure you can always play your game" since I've not had a satisfactory answer from THQ as to why my game won't run unless I use a legally dubious hacked version. It really puts me off buying PC games at all, and I know that I'm not the only one.
  • by LingNoi (1066278) on Sunday November 09, 2008 @04:41PM (#25697383)

    Going to court over DRM isn't frivolous and as a game developer myself I disagree with your "starving developer's families" speech. In fact I'd go so far to say that it makes you sound quite ignorant.

    Do you happen to work for a publisher by any chance?

  • by Alsee (515537) on Sunday November 09, 2008 @05:51PM (#25697961) Homepage

    The U.S. District Court of Kansas in Klocek v. Gateway [2000 U.S. Dist. Lexis 9896, 104 F. Supp.3d 1332 (D. Kan., June 16, 2000)] ruled that the contract of sale was complete at the time of the transaction, and that additional terms included in the package did not constitute a contract, because the customer never agreed to them when the contract of sale was completed.

    There ya go.

    But really the case *I* want to see is one where software installation pops up a click though EULA, the person clicks the EULA's DECLINE button, and then proceeds to complete installing and using the software anyway. It's not particularly hard for a programmer to write a utility to do that.

    US law Title 17 Section 117 explicitly states that you need no license whatsoever in order to lawfully install and run software you have bought. So you have explicitly declined their EULA contract offer (which is what an EULA actually is, nothing but a contract offer), and you have perfectly lawfully installed an lawfully use the software. By declining the EULA you receive no license and receive nothing else the contract offers, but generally EULA offer nothing that you want or need.

    THAT is the court case I want to see. There is absolutely no legal reason you need to accept an EULAs. You don't need it. It's just that they make it really inconvenient to install it without clicking the agree button. In the case I described they have absolutely no hook available for them to hang a claim of contract acceptance. They sold it to you, you declined the contract, and you perfectly lawfully proceeded to use the software you bought without any contract and without any license.

    Actually I believe there is a valid argument that a purely local process of clicking the "accept" button on your own computer and involving no one else and doing nothing you didn't already have the right to do, that that would validly establish a contract either. However that is a far more disputable situation and it seriously has the appearance of accepting a contract. I think judges are going to have a hard time seeing past that appearance of contract and ruling against it unless there is a a clear ruling on my reject-and-install example first. Once it is clear that you *can* legitimately avoid the contract then they will be far more accepting of the legitimacy of other means of avoiding the contract, more accepting of more subtle arguments on what exactly what act does or do not indicate binding acceptance of the EULA contract offer.


  • by GIL_Dude (850471) on Sunday November 09, 2008 @07:44PM (#25698759) Homepage
    Just playing Devil's advocate here as I believe that EA is clearly in the wrong foisting SecurROM on people. However, to argue the point you mentioned about:

    But really the case *I* want to see is one where software installation pops up a click though EULA, the person clicks the EULA's DECLINE button, and then proceeds to complete installing and using the software anyway. It's not particularly hard for a programmer to write a utility to do that

    Again, in a Devil's advocate mode: What about the DMCA? Wouldn't it apply here? Apparently, it "criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.. It would seem that your method, while completely feasible (and I think reasonable), would possibly fall afoul of this provision as it would be circumventing the access control which prevents install if you click "decline".


  • by Samah (729132) on Sunday November 09, 2008 @09:33PM (#25699423)

    So if I manually extract the files from the installer and add all the registry entries and what not (if I happened to know what they were), such that the application will function perfectly, that means I'm using the software without the EULA even being presented to me. If I was never given a "license" to agree to, how does that stand legally?

    I'm sure EA/etc. would make some bogus claim of not being allowed to "reverse engineer", which is rather amusing since that clause is usually in the EULA too.

  • Re:Missing the point (Score:3, Interesting)

    by Shados (741919) on Sunday November 09, 2008 @10:56PM (#25699903)

    Depends: games like Fallout 3 have minimal DRM with the ONLY purpose being to prevent "impulsive" piracy. That is, pumping out 5 copies of the game for all your friends simply because its as simple as copying the CD.

    To pirate the game, you have to actually "try", as easy as it can be. For that, DRM is successful. Any efforts beyond that (like what EA does a lot), is futile.

  • by Alsee (515537) on Sunday November 09, 2008 @11:57PM (#25700205) Homepage

    What about the DMCA?

    My first thought is to puke.
    My second thought is that "click yes to continue" ranks about three levels below ROT13 as a technical protection measure.

    The DMCA is a totally incoherent clusterfuck of a law. I have actually read most of the judge rulings on DMCA-circumvention cases, and I don't think any of them have managed a coherent construction of the critical issues. They apparently decided if they like or dislike what you are doing, dodge the undefined aspects, and then conjure some very creative narrow discussion with little connection to anything in the actual law an no connection to anything any of the other judges have ever ruled. If the judge views you as some naughty hacker doing something to annoy wholesome businessmen, then he rules against you. If he decides the businessmen are abusing the DMCA then he makes up some excuse to toss the case.

    Some judges would likely be more than willing to hit you with the DMCA in a ROT13 case but I think.... I hope... that few would actually buy into "click YES to continue" as an effective technical protection measure. But yeah, I can definitely see some company pushing that argument. Puke puke puke.


  • by Tatsh (893946) on Monday November 10, 2008 @12:28AM (#25700347)

    I said the demos that were left unprotected were a good starting point for crackers. You are right in saying the retail versions have cracked executables too, because no copy protection is going to stop these motivated crackers. I recall that Splinter Cell Double Agent was protected with StarForce (the worst yet of all the copy protections). A real proper crack did not come out till 1 year later. That is some serious devotion.

    SecuROM and SafeDisc have existed for a very long time. The first SecuROM game I ever got was Diablo II. Once CloneCD came out and 1:1 copied CDs were possible, that and SafeDisc (of the time) were broken. Beyond that, cracked EXEs still existed (and I tended to use these anyway, sped up loading time and still do quite often). SecuROM of that time was quite simple, relying upon subchannel data (similar to PSX's copy protection that came along later) for a checksum, of which Data CD copiers at the time did NOT read at all (like Easy CD Creator of the time, which came with my first burner). SafeDisc did nearly the same thing, except with corrupted data, similar to their CSS protection; files on the disc were placed but were also corrupted data (and possibly encrypted) that drives could read but no general user programs would ever read properly to a hard drive or to an ISO image (not even Nero). If I took a disc like that and used dd to copy it, dd would fail upon seeing those sectors even on a completely clean CD. CloneCD started the whole 1:1 copy 'revolution' (which has led to Alcohol 120%, AnyDVD, and other products) and made it possible to copy these CDs up until SecuROM and SafeDisc both got major security upgrades to the point where it is now, you might as well (a have the real disc or b) use a crack.

    For some reason, although many games used the disc ONLY to check for a real disc and did not read any data from it like older games would (what ever happened to leaving the FMVs on the disc? No I don't have 9 GB to spare for EVERY game, sorry!), this did not stir up any controversy. People were only beginning to get CD burners (they were also slow), media was not nearly as cheap as it is now, many people still had 56k so downloading ISO's was unheard of, and a number of other factors kept CD copy protection information in the dark to most consumers.

    The real controversy started with StarForce by the way. I think people seem to have forgotten about this. UbiSoft finally decided to stop using it after much consumer demand, and in general, guess how many games have StarForce now. None that I have heard of recently.

    I am a consumer of PC games but I wonder for how long because I was perfectly happy buying games and I was glad that cracks worked, even on-line. I was glad that even though there was a stupid copy protection (most people would often not notice their disc is spinning during that Sims screen just for copy protection sectors), I could backup these games in some form. Cracked copy is better than none. Do any company give you a new CD if you scratch yours up? Very few do, and they give you a hard time about it. I remember that enough complaints to Take2 made GTA3 for PC no longer have copy protection (which was SafeDisc, a version that did not work with the current version of CloneCD). Take2 released an update that included bug fixes and no copy protection.

    If EA wants to not have complaints about this copy protection other than what it does to Windows, they should preferably drop it altogether, go back to SafeDisc (a much less draconian system), or give people 5 copies for those 5 activations! Legally, due to the DMCA, we cannot even make backups! But EA should not forget about Windows. It sucks, everyone knows, however, Sony, Macrovision and a number of other companies make software for Windows that just makes it slower, could leave it vulnerable to attacks, etc, especially since many are kernel driver-based (SecuROM has been this way since its beginning; StarForce takes this approach; SafeDisc takes this approach in a much more minimalistic way).

    I do

The number of UNIX installations has grown to 10, with more expected. -- The Unix Programmer's Manual, 2nd Edition, June 1972