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Role Playing (Games) Government The Courts News

On MMOs, EULAs, Other Legal Shenanigans 62

Posted by simoniker from the acro-numb dept.
Garthilk writes "In an interesting Q&A over at Okratas.com, they pose some questions for MMO-related lawyer Don Shelkey. Don is a lawyer with Buchanan Ingersoll PC, one of the largest 110 law firms in the nation, who represent many videogame developers on legal matters. Don explains what exactly Technology Transactions are, how EULAs protect the developers, virtual property law and a little about his work with Sigil Games regarding Vanguard: Saga of Heroes." Shelkey, himself a rabid online gamer, argues of MMOs: "EULAs [End User License Agreements attached when you buy a game] are enforceable contracts and there is nothing to indicate that a clause prohibiting the sale of online goods wouldn't be enforced. So, courts should enforce the EULA in the company's favor based on a breach of contract if the company were to proceed to trial on the matter."
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On MMOs, EULAs, Other Legal Shenanigans More

On MMOs, EULAs, Other Legal Shenanigans

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  • minors? (Score:2, Interesting)

    by Anonymous Coward
    First, how is it a contract if I didn't sign it? This sounds a lot like a Contract of Adhesion [cch.com].

    Also, I'm a minor, how can I legally "sign" a contract? I'm guessing plenty of kids play games. Hell, you could even get your 4 year old daughter to click through the EULA for you.

    This is basically the "same old" stuff. There are laws protecting the consumer from signing away their rights.
    • In UK law they probably are invalid since they are only presented to the purchased 'after the fact'.

      If you bought something, then you bought it. That can't be taken away by the seller writing 'oh by the way you didn't actually buy this' inside the box.

      Id like to see EULAs challenged in court, especialy with reference to the purchaser 'striking out' clauses they do not agree to by turning off the monitor.
      • This is not correct as a matter of English law.

        There are two quite separate contracts here: one between purchaser and shop and another between purchaser and manufacturer.

        The difficulty comes if the second contract isn't entered into (because either you or the manufacturer isn't willing to). The likelihood is that in that case the shop will be required to refund your purchase under an implied term of the purchase contract (or perhaps consumer contracts legislation).

        The idea that validity is affected by tu
      • If you bought something, then you bought it. That can't be taken away by the seller writing 'oh by the way you didn't actually buy this' inside the box

        For an MMOG, all that is in the box is the game client and perhaps some documentation. To play the game, you'll need to sign up for the service, which is not inside the box.

    • First, it's an agreement and not a contract. Is this your computer? Maybe...your phone line? Maybe...Do you have a job that pays for the computer, computer games and phone line? Do you live in your own abode, or that of a relative or guardian? Do you consider yourself a child? Point is, your parents/guardian probably makes more money for you and the one with the more money will pay if this is taken to court. As far as signing it....you are signing it digitally everytime you start the game. I believe

    • Also, I'm a minor, how can I legally "sign" a contract? I'm guessing plenty of kids play games. Hell, you could even get your 4 year old daughter to click through the EULA for you.

      As Pinhead says, it is not hands that summon us - it is desire.

      Anyway, as a minor, you can't legally sign a contract. You also can't establish an account with most (if not all) MMOG companies as a minor - if you did register the account as a minor, the company has every right to arbitrarily terminate the account for being cr

    • Re:minors? (Score:4, Insightful)

      by cpt kangarooski ( 3773 ) on Monday August 02, 2004 @04:51PM (#9864710) Homepage
      First, how is it a contract if I didn't sign it?

      Because signatures are not required to have contracts. This should come as no surprise; people make enforcible verbal contracts routinely.

      This is probably an adhesive contract, but those are generally perfectly valid.

      Also, I'm a minor, how can I legally "sign" a contract?

      By agreeing to it. Minors DO have the power to form contracts. The special treatment for minors is NOT that they aren't allowed to contract (for they are) but that minors can, if they choose, escape enforcement of contracts against them for anything other than necessities. This means that a minor can contract to, say, buy a car, and then can sue to ensure that the car is delivered to him, but cannot be sued to force him to pay for it. OTOH if it were a contract for food, he could be sued, since that's a necessity, and we want people to be willing to sell necessities to minors.

      However, minors that avoid contracts they've made are generally under an equitable obligation to return goods, or value, to the other party so that they are not unjustly enriched by their special status. Also contracts you make as a minor but don't avoid by the age of majority are basically ratified and become completely binding.

      People who say minors can't contract (in the US at least) simply don't know what the hell they're talking about.

      Hell, you could even get your 4 year old daughter to click through the EULA for you.

      Why? When you tell someone else to agree for you, it's still ultimately you that agreed.

      Here is a good rule of thumb for legal situations: Do not be clever. Do not do clever things. Do not try to get away with stuff by adhering to the letter of the law in a patently transparent way. This is because no one is really as stupid as you must think they are if you think that will work, and it will in fact NEVER work.

      As has been said, "the law is not an ass," and it will not only STILL get you when you're being clever, you will have only pissed it off and made things worse for yourself.
      • People who say minors can't contract (in the US at least) simply don't know what the hell they're talking about.

        That's a bit overdramatic. Saying whether or not minors can form contracts is a bit dependent on what you consider a "contract". Enforceability is probably what the seller is interested in, and since there is no guarantee [findlaw.com] that a contract with a minor can be enforced, it might as well be the same thing as minors being unable to enter contracts in the first place from the seller's perspective.

      • Re:minors? (Score:2, Insightful)

        by Eccles ( 932 )
        Because signatures are not required to have contracts.

        Poorly phrased, but true. However, contracts are required to have several things, including a meeting of the minds and an exchange of value. EULAs do not give, they simply take, so the latter is not present. If there is no meeting of the minds, I should be able to continue as I would have otherwise. However, refusing to accept an EULA agreement generally prohibits me from using software I've already purchased, and which a vendor may not agree to l
        • I agree with most of what you said, but...

          refusing to accept an EULA agreement generally prohibits me from using software I've already purchased

          What makes you say that? Once you buy a copy of software that copy is your property. You do not need any sort of license to install and run that software.

          -
          • What I meant was the installation procedure generally refuses to continue without my indicating my consent to the EULA, not that I was legally prohibited from using the software.
            • What I meant was the installation procedure generally refuses to continue without my indicating my consent to the EULA

              Ahh. Well if you're a programmer, or if you get a suitable utility from a programmer, you can repair that sort of software bug. Once the bug is fixed it will install just fine.

              :)

              -

  • Except that.... (Score:2, Interesting)

    by Asprin ( 545477 )

    A EULA is not a contract, it is a license. It sez so right in the frickin' acronym for crying out loud: End User LICENSE Agreement. Grrrrr... [awprofessional.com]

    Oh, and IANAL, but I read about them once on TV.

    • Re:Except that.... (Score:3, Insightful)

      by jewf1sh ( 318856 )
      Actually, an EULA is an agreement, not just a license (End User License Agreement). Simply put, it is the agreement by the user to adhere to the license. When the user agrees to adhere to the license, it becomes a contract between the parties because the agreement was accepted by both. Therefore, he is correct in stating that it is a binding contract.
      • When the user agrees to adhere to the license, it becomes a contract between the parties

        Exactly.

        And if the user does not choose to agree then he does not get anything the EULA offers, but then there is no contract and he is not bound by the EULA.

        When you buy software you do *not* require any licence to install and run it. Very few EULA's offer you anything you want, much less anything you need.

        The rare court cases that have upheld EULA's have all done so on some (IMO warped) arguments that the person c
    • No it is not a license. (usually)

      A license is something which allows you to do something that would otherwise be prohibited by law.

      What exactly does this "license" grant you the rights to do. If you think its "use the software" then you are wrong. You are already allowed to use software because there are no laws prohibiting it.

      Conversely, the GNU GPL for example is a License because it grants you (limited) rights to copy and distribute software. That's because by default the law prohibits you from copy

  • Online property laws (Score:5, Interesting)

    by Doctor Cat ( 676482 ) on Monday August 02, 2004 @12:08PM (#9863095) Homepage
    You know, 50 or 100 years from now, there'll be legal precedents, court rulings, and/or laws establishing what does or doesn't happen in the courts when someone steals your castle or your magic sword, who pays real world taxes on what, etc. For better or for worse. But somehow, I like the era where mostly the courts and the legislators and the police haven't even noticed the idea of "virtual property law" yet. When you might just say "Well, how do I want my game to work" and try and get away with it. It leaves us developers a little more elbow room to try and do that "innovation" thing. Hopefully, in the long run, we'll end up with laws that do more good than harm. But I like the whole "settling the wild cyberspace frontier" feel in the current marketplace.

  • Note... (Score:5, Insightful)

    by Sheetrock ( 152993 ) on Monday August 02, 2004 @12:16PM (#9863146) Homepage Journal
    Don is a lawyer with Buchanan Ingersoll PC, one of the largest 110 law firms in the nation, who represent many videogame developers on legal matters.

    Which should tell you all you need to know about why this guy strongly believes in the power of EULAs: he's paid to.

    Whether or not they are technically enforceable is mostly irrelevant, because when a company brings out the lawyers most people choose to cave in rather than deal with the 5+ digit lawsuit costs and associated headaches. So maybe they can be considered enforceable by the fact few can put up a defense (enforceability by fiat?)

    (I am not a lawyer; this is not intended as advice in any way, shape, or form)

    • Thank you for pointing that out. Remember, in any court battle there are two sides, and the lawyers for both sides will be arguing that the law agrees with their respective side.

      He represents the side of the game companies, so don't be expecting him to say anything other than EULAs are binding any time soon. However, just because he says they are perfectly valid does not mean in any way that they are. That has yet to be proven in court.

      • Re:Note... (Score:3, Insightful)

        by geminidomino ( 614729 ) *
        However, just because he says they are perfectly valid does not mean in any way that they are

        Also keep in mind that just because he says they are does not mean in any way that they aren't. Until the EULAs get tested in court by a judge who will determine validity rather than "settled" on, the lawyers on both sides can flap their gums all they want; it's all bullshit.

  • Why turn your back on a revenue stream? (Score:3, Interesting)

    by Andy_R ( 114137 ) on Monday August 02, 2004 @12:16PM (#9863154) Homepage Journal
    Why don't the game companies simply join in selling items? It's not as if duplicate items would cost them anyhing to produce.
    • Because then the company would acknowledge that they item has value outside the confines of the game and that would make them liable for maintaining and protecting that value.

      There are too many uncontrolled variables in MMO games as it is. I hope that game companies continue to enforce their EULAs and keep real lfe legal issues out of my entertainment.
    • This goes completely against games with "virtual" economies. Players with deep pockets will tend to own more property, have better items, and eventually social stature. Why duplicate real life by unbalancing your game with such a destructive force. Not all game companies are in it for the money.
    • If the items sold are regarded as assets, the company has an obligation to maintain the value of those assets. Otherwise it can get sued.

      For example, I sell you a virtual sword for $1. I've made $1 for that, but if I then shut down the game where the virtual sword exists, you no longer have access to that $1 "asset" and you can sue me for (effectively) stealing it from you.

      One possible way around this is to code depreciation into the game engine - assets depreciate by 50% per annum and lose all value af

    • Why don't the game companies simply join in selling items? It's not as if duplicate items would cost them anyhing to produce.

      Because players want to feel that what they do in the game world is what has an impact... not how much money you're willing to give the company behind it.

      If you try to get too much money out of it, you might just lose it all instead.

  • Shelkey, himself a rabid online game,
    I've never hear of a lawyer being a game before, not even an offline one.

    (I have, however, heard of lawyers being rabid.)
    • In my rush to post this before anyone else, I neglected to hit "Preview". "hear" should be "heard". Sorry.

      (And yes, I see the irony in omitting a letter in a post making fun of someone else for omitting a letter.)

  • EULA (Score:2)

    by MrWa ( 144753 )
    one of the largest 110 law firms in the nation

    So, they aren't in the top 100 but they are close enough to feel the need to give a ranking range? Why not just say "107th largest law firm" or some such nonsense. How large, anyway? Is that revenue, number of lawyers, lawsuits handled, what?!

    This is only one person's, or law firm's, opinion regarding the legality of EULA's and how well they will hold up in court. What we need is a case to actually, you know, go to court. That way this whole mess will be

  • As far as I've heard, there's not a single case in the entire WORLD where a EULA has held up in a case of virtual property disputes.

    China and Korea have actually passed laws saying that virtual items can and DO have values. All lawsuits brought to court in the US have so far been thrown out in favor of the virtual property seller or...in one case...dissappeared because of the defendant harvesting cheap illegal labor in other countries (*cough* blacksnow inc. *cough*)

    There are those of us that have be
  • These are GAMES. They are designed for ENTERTAINMENT PURPOSES ONLY. Where else but in a country run by lawyers would people argue about the legal precedents set in a game. I know, this is a popular rant, but the ridiculous amount of litigation in this country is driving me up a wall. Oh no, my +5 sword of dark elf-slaying disappeared. Oh no, it took me 15 hours of playing to get it. Know what? It's STILL a game! It's designed to entertain, not to be your life. If you can't find anything better to do than
    • Hear, hear!

      I've been playing MMORPGs for a few years. While on one hand, I take strong difference to people who use the words, "It's just a game," to defend their being assholes and preventing those around them from having fun, I do side with them when it comes to in-game belongings.

      Last year, I had a trial member in my guild abscond with two pieces of Rune armor totaling about 30 million gp. In the process of killing him to get them back, I lost their matching sword (worth 300 mil) and leggings (50 mil),
    • But see, there's a problem here. That it's a game doesn't it stop from being something you bought. If you go to Disneyland, and they fail to deliver the entertainment you bought from them, by say, having all attractions broken, or suddenly closing 5 minutes after you paid for the ticket, I'd consider it perfectly reasonable to ask your money back.

      The same way, if Everkill consist in killing things to get magical items, and you lose that to a crash, you could quite successfully argue that you didn't get wha
      • Are you really playing games for the magical items, or are you playing for the entertainment factor? One could argue that just by playing enough to have gained those items, you have gotten your money's worth. After all, how much entertainment are you getting, and for how much money? I would say that it's similar to seeing a movie, not liking the ending, and asking for one's money back. You've already gotten the entertainment value; anything else is just a bonus. Granted, having awesome items contributes to
      • And a lawyer (or anyone with a working synapse) would counter that you were not paying for "progress," you were paying for "access" and "time" so you're "I spent 300 hours this month getting that sword!" argument would collapse itself.
        • Right. And when I go to a place that charges for entrance, a lawyer would argue that since I paid and was left in, they have no obligation of providing anything they promised, like attractions, pictures on a wall or something?

          "You see, your honor, the defendant paid to enter the projection room. Sure the projector broke after half an hour, but we *did* let him in, and that's what he paid for!"

          Fat chance.

          See, I see where you're trying to get with that, but I doubt it'd work. It wouldn't be fair. If it was
          • No, your analogy would be more accurate if you payed for a month subscription and after one day, the server was down/service cancelled/etc... in that case, I am in 100% agreement with you, they owe you a refund.

            However, losing an item in the game, regardless of how long it took you to GET that item, is not the same thing. You had that month to play the game, and you played it. Demanding a refund after that would be like demanding a refund when you DID sit through the entire movie, and it sucked. You did ge
            • Well, for me it depends on how you lose it.

              If the loss is because somebody came to me, beat me up, and stole all my stuff, then I wouldn't have much to complain about. If that's how the game works, it's how it works, even if the result is that my ubersword gets stolen.

              Now, a completely different thing would be if a server crash obliterates my last month of progress. That I would have an issue with, because it's not my fault in any way, and could have been avoided. Same would go for things that work signif
              • Do you demand compensation from your ISP/MSP when you lose a single email? These are computers, bugs happen, and that's the way it is. The AUP of any game I've seen says something along those lines, not to mention the popular clause that all the "virtual" items belong to $COMPANY, not you. If it bothers you that much, you should stick with games that you don't pay-to-play and don't save on remote servers.
                • Bad example.

                  Email loss almost never happens because the system is designed well. If my connection to my ISP goes down, then my mail server becomes unreachable. The SMTP server that was trying to deliver the message will keep trying, and it's almost certain my connection will come back in time.

                  If it times out, or I can't accept the message for some reason (disk full) then the email will bounce and the sender will be notified as well. The only real possibility of losing an email is things like disk corrupti
                  • I WOULD be annoyed at that, which is why I DO run my own mailserver. I insist on having control over my own servers. I presume that's probably one of the reasons you do as well, since my post you replied to WAS referring to an ISPs mailserver, as a "server you have access to in exchange for a monthly fee."

                    I never said losing a +9 Sword of Ceaseless Grinding wasn't annoying. I said that claiming they owe some kind of reparations for it was silly.
    • If I worked at an arcade and my boss didn't pay me because I played games in my spare time, I'd be kinda angry (as long as I did my job)...wouldn't you?

  • There is no property (Score:2, Interesting)

    by EvilIdler ( 21087 )
    When playing an MMORPG, you're renting an account on someone's
    server. I don't see how you can *own* anything in virtual space
    then. If the server closes down, everything's gone. The company
    running the servers don't owe you anything for 'lost property'.
    You were using other people's resources to maintain that virtual
    castle.

    I think MMOs should have ways to trade property in-game, though.
    Passing along a deed, DAoC-styles, works nicely for medieval games,
    and some sort of vendor would work for a more modern world

    • Re:There is no property (Score:1)

      by Anonymous Coward
      "I don't see how you can *own* anything in virtual space then."

      Like *Intellectual Property*, perhaps?!?!

      Corps want to have it both ways. They chop and change and only a good solicitor will let you get away with this sort of crap.
      • Presumably you could "virtually" own IP. But the real IP doesn't follow.

        In fact, you can not in any meaningful sense OWN virtual property, because you are REAL. Only virtual characters can possibly own virtual things, and only real people may own real things.

        (Corporations being considered people by act of a legal fiction.)

        If a virtual character virtually owned a virtual copyright to the song "HELP" by the Beatles, you would own nothing, and the virtual character would not have the right to make a REAL co
  • My suggestion would be you have an in game court, whose decisions you can under certain conditions appeal at a non-virtual court, and you would have virtual police and bounty hunters who would make it harder, but not impossible for an outlaw to act in the game.

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