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The Lawbringer: Contracts and player bans


Welcome to The Lawbringer, where we investigate the intersection of law and Warcraft and answer such questions as what do you call a raid of lawyers in the Maelstrom. Answer? A good start.

Last week, we looked at what is private about our armory profiles. Hint: not much. But, life has a funny way of providing a use for things we thought were annoying. Check out this email we received Saturday:
"Two days ago I lost my wedding ring. Of course my wife of 4 years finds it odd and starts to question what I do at night while she is at work. After hours of arguing, I remember about the WoW Armory. I rush to the PC and show her almost minute by minute what I was doing at night. She knows my characters and knew it was my character, and the Armory showed her everything."
So remember, guys and dolls, the Armory can convert your spouse's infidelity aggro to regular WoW aggro. Use at your own risk.

Today, we're going to look at losing the ability to play WoW, such as with player bans like the one given to Ensidia a few weeks ago. However, just as understanding how one gets into a contract helps in understanding how that contract affects players, learning about how to get out of a contract helps in understanding how bans affect players.

Contracts

Unlike entering a contract, terminating one doesn't have the same a, b, and c formula of offer, acceptance, consideration. One can terminate a contract by agreeing to terminate it or by breaching it. Sometimes, only one party has to act to terminate the contract. Depending on when and how the contract was breached, one party may owe the other a large amount of money. Because of this variability, these issues are much easier to analyze with a contract to look at. As always, we'll be looking at the World of Warcraft End User License Agreement and Terms of Use.

Consenting to Termination

Your first opportunity to get out of a contract with Blizzard is within 30 days after purchasing your copy of World of Warcraft. If you buy the game, read the TOU and decide you don't want to deal with its silly rules, you can call to return the game and get a full refund of the purchase price. If you registered for an account and accepted the EULA and TOU, you're out of luck for this clause. (EULA Sec. 3)

Now, having accepted the contracts, you can terminate the EULA at any time if you: a) destroy all copies of WoW you own, b) remove WoW from your hard drive, and c) tell Blizzard the contract is terminated. (EULA Sec. 7) These are the only ways to end your relationship with Blizzard that can be done from your end without possibility of penalty.

"Non" Consensual Termination

Just as you as a player have the right to terminate the contract at any time, Blizzard does too. "Blizzard may terminate this Agreement at any time for any reason or no reason." Again, you agreed to this when you scrolled down and clicked "I agree." So even if you want to keep giving Blizzard your money and have done nothing against the EULA or TOU, they can still kick you out of the clubhouse. Remember this the next time you start flaming Ghostcrawler.

Of course, Blizzard is a business. While they have the right to throw you out of Azeroth for no reason, doing so would create tons of negative publicity. This is why "most account suspensions, terminations and/or deletions are the result of violations of this Terms of Use or the EULA." (TOU Sec. 8)

Breaching for Termination

A violation of the contract, or "breach," causes a contract to be terminated if it is a violation of an "important" provision of the contract. Important is in scare quotes because what is "important" is defined by a judge, who may have a different view of what is important than you. For example, if you're building a house, and your contractor doesn't put in the brand of pipes you specifically asked for, you can't make him tear out the pipes and put in the ones you wanted. You won't get the house for free. You won't even get the difference in value of the pipes since the judge thinks the pipes are worth the same. You will however, gain immortality by being included in every Contract Law text book.

Now, determining what constitutes a "material" breach in a contract to play a video game is a bit more difficult. In licensing agreements, provisions that limit the scope of the license -- number of copies, who may own them, etc -- are considered important enough that violating them is considered a material breach that leaves the offending party vulnerable to copyright infringement. We'll come back to this point in future discussions of copyright law. Violations of these provisions can entail not just the loss of the right to play but significant fines and penalties.

As for our ability to play, it doesn't really matter whether we breached a material term of the contract, we breached a non-material term of the contract, or we just asked Ghostcrawler one too many times for a pony. If Blizzard doesn't want us to play, we can't. And if our contracts with Blizzard are terminated for any reason, we are required to destroy all copies of the game, including the one on our computer. Furthermore, if the contract is terminated, we cannot get a refund for any playing time for which we have already paid. (TOU Sec. 13)

Player Bans

Let's move on to the topic of two weeks ago: Ensidia. I want to note that I have no dog in the race for a Lich King kill, as I'll get my first kill soloing while everyone else is playing the sixth World of Warcraft expansion, Brann Bronzebeard and the Last Crusade.

As we've seen, Blizzard had the right to ban them and even delete their accounts just using their ability to terminate the contract at any time. As the Terms of Use point out, most account suspensions and terminations are from violating the EULA or TOU. So did Ensidia violate those agreements? Let's look. (By the way, it should not surprise you that I have the webpages for the TOU and EULA memorized.)
Certain acts go beyond what is "fair" and are considered serious violations of these Terms of Use. Those acts include, but are not necessarily limited to, the following:
(i) Using or exploiting errors in design, features which have not been documented, and/or "program bugs" to gain access that is otherwise not available, or to obtain a competitive advantage over other players;
(iii) Anything that Blizzard considers contrary to the "essence" of the Game.
Admittedly, these guidelines are rather vague, and deliberately so. However, place me firmly in the camp that believes that seeing bombs rebuild things instead of blowing things up and then taking advantage of that fact is exploiting an "error in design." Instead of pitching a hissy fit, Ensidia and all other guilds and players should acknowledge the challenge of building such an intricate game and not use exploits and bugs.

So absolutely horrified that Blizzard owns all "your" pixels, can publish "your" information, and can terminate your account at any time? Tune in next week to learn how to change a contract you've signed with every lawyer's favorite legal doctrine: unconscionability.

This column is for your entertainment and enlightenment only. Information handed out in this column is not to be considered legal advice. If you have real legal questions, please consult a real lawyer.

Filed under: Analysis / Opinion, The Lawbringer

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