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The Courts Games Your Rights Online

EA's New User Agreement Bans Lawsuits 273

Posted by timothy from the what's-the-eula-equivalent-to-jury-nullification dept.
An anonymous reader writes with this snippet: "Electronic Arts has updated its Terms of Service Agreement for the Origin platform. Following Sony's steps, and taking it even further, EA has added a new clause that prevents users from suing them in both class action and jury trial forms."
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EA's New User Agreement Bans Lawsuits More

EA's New User Agreement Bans Lawsuits

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  • Oh, no! I've sued them! Now they are no longer obligated to adhere to the contract!

    • The prohibition against class actions has already been tested in court. It worked. For cases of small damages, that is the only way to make it feasible. Now they can screw 10,000 people for $50 each with relative impunity.

      • Re:Oh no! (Score:5, Insightful)

        by MightyYar ( 622222 ) on Saturday September 24, 2011 @08:17AM (#37501212)

        While I'd like to see the class action laws amended, this doesn't mean there is no recourse. A little organization and a mass of suits in small claims court would prove quite expensive for them. Hmmmm, I just got a web site idea :)

        As an aside, I think that class action suits are fundamentally flawed in their current form. The settlements are generally a joke for the class, with the lawyers picking up most of the benefit. Frankly, the companies benefit from it more than they are hurt by it in it's current form.

      • Don't worry, you can sue them for unlimited amounts for IP, piracy and unauthorized use charges. You know, because they want to make sure you don't have to give that up:

        The only disputes that are not covered by this Section 17 are the following:

        1. a claim to enforce or protect, or concerning the validity of, any of your or EA’s (or any of EA’s licensors’) intellectual property rights;
        2. a claim related to, or arising from, allegations of theft, piracy, or unauthorized use;

        • Re: (Score:2)

          by makomk ( 752139 )

          So basically, it's a very one-sided clause - EA can still sue you in court and run up massive legal bills for you for the most common causes of action they're likely to have against you, but you're stuck using binding arbitration if you sue them.

  • Nobody can 'prevent you from suing them'. Especially through EULAs.

    • Why not? Arbitration requirements seem to work pretty well in ToS agreements. Why not EULAs too? And really, the way gaming seems to be going, it's as much of a service as it is a product now. They may as well call them terms of service instead of end user license agreement.

      • Now, now, this is what you don't seem to understand about lawyers. It's all about the talent. The legal system is quagmire, a mess of jumbled legal spaghetti. Taking that mess, and coming up with an argument that doesn't just make sense, but by God IT'S THE LAW, is what a talented lawyer does. Look, these EULAs are just scarecrows that keep the general public and armies of idiot drones that pass the bar out of your cornfield. Should a weapons grade attorney happen into this particular field of low hanging f

      • I don't know about the US, but in my country anyone can sue anyone over anything. Getting a verdict you're happy with is a different matter, but in theory I could drag you to court for your nose looking funny. Most likely it would be thrown out in the screening process (and I'd have to pay my and your lawyer), but suing isn't the problem.

        Winning the suit is.

    • Re: (Score:3)

      by Hatta ( 162192 )

      Sure they can. In fact, the Supreme Court [theatlantic.com] has upheld clauses forcing you into binding arbitration. Such clauses would be tossed out as unconscionable in almost any other country in the world, but in the US unconscionable is business as usual.

      • Also, the clause prohibiting class actions has been tested as well. That scares me more, as it makes small fraud (under $500) essentially a free ride. Can't hire a lawyer for that.

      • Re: (Score:2)

        by alen ( 225700 )

        the supreme court said you can sue if you have suffered serious damages even if the contract said arbitration. something like this is not that serious. i've had CC cards hacked and it's not that big a deal to fix the problem.

        • Re:Horsecrap indeed (Score:5, Insightful)

          by Hatta ( 162192 ) on Saturday September 24, 2011 @08:35AM (#37501300) Journal

          the supreme court said you can sue if you have suffered serious damages even if the contract said arbitration

          So now corporations across the country can steal small sums from millions of people, and none of them can sue because they individually haven't suffered serious damages, and can no longer pool their resources as a class.

          What it boils down to is that the Superman III/Office Space scam is de facto legal now. If you're a major corporation, that is.

    • Even if this is somehow "legal", it's a slimy enough move that I refuse to buy from EA or anyone else who wants to use this tactic (most recently, Sony). Bring it! I will spend my money on things that don't require me to waive my rights.

  • Biting off more than they can chew I fear (Score:3)

    by erroneus ( 253617 ) on Saturday September 24, 2011 @07:34AM (#37500954) Homepage

    At some point, someone will challenge the legality of this practice of blocking legal recourse. The fact of the matter is, the legal system is government and is in place to help guarantee peaceful resolution of disputes between parties.

    When companies seek to remove these avenues from the people, there will come a point at which injured parties will seek other remedies.

    So one of two things will happen: 1. The lawsuit dam will break once the practice is successfully challenged and they will be flooded beyond their capacity to handle it. 2. Parties will trash the business using other means not the least of which will include vandalism, destruction of property and releasing private information of the company and its leadership.

    The courts system is there for THEIR benefit as well as that of their customers.

    • A lot of it has been tested. (Binding arbitration, prohibition against class actions) It was found to be enforceable. And I guess part 2 of your premise is Anonymous and Sony.

      • Re: (Score:2)

        by Mashiki ( 184564 )

        Considering it's illegal pretty much everywhere to do this except the US if you're going to go that route. All someone would have to do, is make a proxy route via VPN and then state "I was here" and accepted it from this location.

        I mean the music industry sure does seem to take stock in IP addresses as the beginning and end doesn't it?

    • erroneus: At some point, someone will challenge the legality of this practice of blocking legal recourse. The fact of the matter is, the legal system is government and is in place to help guarantee peaceful resolution of disputes between parties.

      That depends entirely on who's controlling the government during that cycle, and who that government decides needs the greater protection, doesn't it?

      What we're seeing these days is a continued skewing of rights and privileges away from employees and "small" custo

      • At some point the government, and especially the courts system will have to face the reality that this practice is literally disassembling the functioning and design of the government.

      • Re: (Score:2)

        by v1 ( 525388 )

        That depends entirely on who's controlling the government during that cycle, and who that government decides needs the greater protection, doesn't it?

        I'm pretty sure the (US) govt has been in the "controlled by money/business interests" side of the cycle for several decades. I don't think we can call it a "cycle" anymore. More like a "shift in power".

        The best way to view these sorts of "terms" is that you can put almost anything in a contract you want to, (with a very limited specific set of exceptions) b

        • Moneyed interests have been controlling US government in the 1800s. One big one was late 1800's was an overthrow of Hawaii's government by white businessmen and later, Hawaii was made a territory by the US government.

          • Seems the cycle is swinging back to more corporate power. Corporations were knocked down a peg or two during and after WW2, when they were essentially forced to operate at the whim of the government. They were further knocked down a peg with the introduction of the EPA, and other regulatory agencies.

            Now, we have regulatory capture (see the Mining Commission scandal), corporations as people and an entire group of people who quite literally worship corporations. It's gonna be awhile before it gets better.

      • Re: (Score:2)

        by KDR_11k ( 778916 )

        People are voting for that skewing to continue. Hell, I see Americans argue that the government is so bad and the corporations so good that the govt should stay away from the whole thing and let it follow its natural progression. People believe this is a GOOD thing and vote accordingly.

    • Re: (Score:2)

      by fermion ( 181285 )
      It seems to me that this has been tested in the real world. I believe many of the products we buy have arbitration only agreements. These agreements require the injured party to travel to the home of the firm that supplied the defective product and state the case, often in front of a mediator that the injured party has no ability to insure is truly neutral, not to mention that arbitration has to equate the value of person to the value of what is often a corporation.

      In principle I have no problem with me

      • This is precisely why such arrangements need to be brought before the US Supreme Court to argue that this practice removes or circumvents the rights given to every person by the constitution.

    • At some point, someone will challenge the legality of this practice of blocking legal recourse.

      The Federal Arbitration Act dates back to 1925.

      A number of Supreme Court cases have dealt with the preemption of state laws by the Federal Arbitration Act:

      Southland Corp. v. Keating, 465 U.S. 1 (1984) - Established the applicability of the FAA to contracts under state law of California)
      Perry v. Thomas, 482 U.S. 483 (1987)
      Volt Info. Sciences, Inc.. v. Stanford Univ., 489 U.S. 468 (1989)
      Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)
      Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995)
      Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996)
      Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440 (2006) - Arbitrators must first hear challenge to legality of contract
      Preston v. Ferrer, 128 S.Ct. 978 (2008) - Act requires arbitration first even when state law provides for administrative dispute resolution
      AT&T Mobility v. Concepcion (2011) - Despite California state law and lower court rulings that contracts barring class actions are unconscionable, the Court ruled 5-4 that consumers are bound by that aspect of arbitration clauses

      While the geek rages on... arbritration moves quickly.

      You will not be in and out of court fot years with all the expenses and stress that implies. The award will arrive in the form of a check, not a discount coupon, a symbolic victory only.

      Federal Arbritration Act [wikipedia.org]

      You can continue to sue EA --- and EA can continue to sue you --- in small claims court.

      The definition of "small" varies by state and locality --- claims ranging from up to five thousand to $25,00

      • While the geek rages on... arbritration moves quickly.

        Sure, it's easy for the arbiter to find for their client (EA) and move on.

        You can continue to sue EA --- and EA can continue to sue you --- in small claims court.

        Sure, you can sue at small claims. EA might not even show up, so you get a default judgement. Collecting it is up to you; if EA doesn't have assets in your jurisdiction, forget about it; the process will cost a fortune.

        It's all about making the cost of getting justice too high to be worth doi

    • Re:Biting off more than they can chew I fear (Score:5, Informative)

      by swillden ( 191260 ) <shawn-ds@willden.org> on Saturday September 24, 2011 @09:31AM (#37501614) Journal

      At some point, someone will challenge the legality of this practice of blocking legal recourse.

      It has been challenged, many times. Congress even weighed in with the Federal Arbitration Act -- passed in 1925, don't think this is a new thing by any means -- and specifically stated that arbitration clauses are legal and enforceable. Courts have found that there are some cases in which they aren't, for example if the arbitrator can be shown to be biased. But even there, the Supreme Court found in 1967 that you basically have to try arbitration first before you can appeal to the court system.

      Binding arbitration clauses in contracts are settled law and new challenges aren't likely to change that. In fact, they're not likely to survive summary judgment. I'm less sure about binding arbitration for class action suits; I think it could be argued that class action provides a form of remedy which isn't available through arbitration and therefore cannot be replaced by it.

      • I was going to make this comment. Thanks.

        Although, recently there was a review and ruling about mandatory arbitration clauses when in dispute even in construction. Apparently, even if you disagree about the construction of the contract, a mandatory arbitration clause requires you to settle the matter in arbitration, even if the specific clause you're objecting to the construction of is the arbitration clause.

        Basically, mandatory arbitration clauses are pretty good and well air-tight.

  • Call me when this holds in any court of law in the EU (except England - they always do weird stuff there).

    • Re:The EULA said that? (Score:5, Informative)

      by Anonymous Coward on Saturday September 24, 2011 @07:38AM (#37500976)

      Quote from the EULA:

      This provision applies to all consumers to the fullest extent allowable by law, but expressly excludes residents of Quebec, Russia, Switzerland and the Member States of the European Union.

      Hence Europeans can feel safe.

      • Re: (Score:3)

        by Teun ( 17872 )
        A nice discrimination according to place of residence :)

        You either need balls or conceive a lack of responsibility to higher powers to put this kind of stuff in writing.

        Oh I forgot, you especially need to have total disregard for (the rights of) your customers.

        • It's not discrimination it's because those places have bans that prohibit it. We could have that in the US as well if not for the corporatists.

  • I wonder if anybody else will be boycotting games published by Electric Arts, even though the majority will not. It is a shame that most of the people here will play one of EA's new games anyway with the thought that "Oh, the courts will never allow it", forgetting that our courts are now stacked with pro-corporate goons who have jobs guaranteed in various industries if they ever lose their position.

    Principles don't matter to consumers anymore.

  • A sincere thanks to Sony and EA (Score:3)

    by wwphx ( 225607 ) on Saturday September 24, 2011 @08:06AM (#37501148) Homepage
    Holiday Shopping List:
    --No Sony
    --No EA

    Stupid Corporations: Simplifying holiday shopping since 2011.

    • So you'll probably end up buying products from companies just as or more corrupt. I'm not saying you shouldn't take morality into account when making your buying decisions, just don't fool yourself into thinking these two companies are exceptional in their corruption. The sad truth is that it's probably impossible to actually know whether you buy things from an ethical business.

      I mean, you buy food, right? The evil of the food industry is like Bernie Madoff compared to the carnival-like shenanigans of EA/So

      • Re:A sincere thanks to Sony and EA (Score:4, Interesting)

        by wwphx ( 225607 ) on Saturday September 24, 2011 @09:10AM (#37501478) Homepage
        My likelihood of buying a Sony product is pretty much zero. I sold their electronics for a few years and overall it was overrated crap. I have a vague interest in a couple of their MMO's, but I'm just not going to bother with them. I'll never own a Play Station because of structural difficulties of my right hand making console game controls painful to use. Using your food analogy, unless you buy 100% organic and never eat in restaurants, you're supporting Monsanto at some level, and they are pretty high up on the evil food pyramid along with ADM.

        A certain amount of evil in your life is unavoidable if you live a modern lifestyle. Sony/EA aren't going to miss my dollars because they weren't going to get them in the first place, my post was meant as humor. And you're absolutely right, writing to my congresscritter would be much more effective, it's something that I really should do on a more regular basis. I actually got to insult one of my congresscritters to his face, that was a very fun day at work!

  • Does it ban Lawpjamas?

  • By entering into this Agreement, you and EA expressly waive the right to a trial by jury ... It covers any and all disputes between us ("Disputes"), including without limitation ... claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.

    I'm pretty certain this is a ridiculously unenforceable and unfair contract term, at least in the UK. They are saying that after signing up for their game se

  • OK so i buy a new car, but the manufacturer has a clause in the paperwork which prevents me from suing. It catches fire and burns my family to death due to design defect.

    You think that will stand up in court?

    • You think that will stand up in court?

      I think a court, just like a normal, rational person, would make a perfectly sensible distinction between buying an automobile and licensing a piece of entertainment software in a way that calls for formal arbitration, rather than class action, as a way to handle possible disagreements.

      Buying a highly regulated, life-and-death product like a car is not like licensing a few hours' entertainment or paying for access to an online gaming platform.

    • Organise with people to buy from reject EULA. Throw class action suit against EA for taking your money then giving you a product wrapped in shitty EULA. But yes, companies are out of their fucking minds, mad with power, they deem their selves above the law. This is the most disgusting thing a fucking *game* company has ever done, to my knowledge.

  • This clause is unenforcable. You cannot enter into any agreement in which you give up your constitutional rights. If Sony harms you, you have a constitutional right to bring it before a court for judgement.
  • EA (et al) wants your money, but can't be bothered to safeguard the means by which you give it to them. The are making it quite clear that they would rather spend a few bucks on lawyers, having them draft legalese that compels you to accept that bargain if you want to do business with them.

    Given that we're talking about games, the proper course of action should be obvious.
  • This is really just binding arbitration. And the clauses in it are actually pretty reasonable: the arbitration is under AAA rules (so EA doesn't get to pick an arbitrator), the arbitration is held at "any place convenient for you" (which is HUGE - they don't require you to fly cross-country), and if the arbitrator decides in your favor and the award is more than EA's last settlement offer, they'll pay 150% of the settlement plus your attorney's fees. Honestly, as far as arbitration clauses go, this is one of the most consumer-friendly.

    But if you really think it's so onerous, then you can simply not agree to the EULA. It's not like you'll die if you don't play the latest Madden release.

  • Binding arbitration == The Corporate Holy Grail (Score:5, Interesting)

    by oDDmON oUT ( 231200 ) on Saturday September 24, 2011 @10:02AM (#37501786)

    This has been a corporate stealth agenda in the US since the late 1980s.

    Don't believe me?

    What's your immediate reaction to the following phrases:
                McDonalds coffee lawsuit
                Jackpot justice
                Frivolous lawsuit
                Tort reform
    No need to reply, just hold the thought.

    Now go to http://hotcoffeethemovie.com/ [hotcoffeethemovie.com] and watch the trailer (if you have HBO watch the full film there, or rent the DVD after November).
    Now consider the sheer number of companies that have, or changed, EULAs, warranties, or other consumer contracts to preclude anything other than "binding arbitration".
    Guess who pays for the "arbitrators"?
    The company whose product or service you, the consumer, have had a problem with.
    Since said arbitrators are paid for the company, how many adverse rulings do you think you're going to see against the company?

    EA is just following suit of AT&T, Verizon, FINRA, auto dealers, and many others looking to minimize their "attack threshold", which is a good thing, right?

    PS: For extra credit research and discuss ALEC, and enjoy your weekend.

    • Comment removed based on user account deletion

  • Let's call it a "Vendor Payment Agreement". It starts with "By accepting payment you agree to...", then follow with negating EULA's presented after purchase, and other objectionable clauses. Then we just need to link this agreement to our credit cards/other payment methods, which is a a business opportunity for someone. Call it the "consumer protection card".

  • I doubt it would stand up in today's legal quagmire but from my point of view if the company acts so badly that they need a term preventing lawsuits then the contract agreement they are forcing on you is not being entered into in an honest capacity. Therefore they have entered a contract fraudulently and the contract itself is null and void.

    Yes I know I'm dreaming here because the US court system, among others, seems to have the rule of "deepest pockets win".

    On top of that we also have the "we are able t

  • Lets test if this EULA en masse (Score:4, Interesting)

    by ukemike ( 956477 ) on Saturday September 24, 2011 @11:53AM (#37502566) Homepage
    Everyone go to the local retailer and buy an EA game. Open it (don't be gentle with the packaging) begin to install it. When the EULA comes up stop the process return the store and tell them that the EULA is unacceptable and you want your money back. If they don't take it back the the EULA is not a valid contract, if they have to take back hundreds or thousands of partly used games then it'll cost them a fortune.

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