Unconscionability

England

Just as US contracts can be altered if their terms are found to be unfair enough, contracts under European laws can be found so as well. English law has codified this principle in the Unfair Terms in Consumer Contracts Regulations. These regs say that "A term is unfair if 'contrary to the requirement of good faith [it] causes a significant imbalance in the parties' rights and obligations ... to the detriment of the consumer. The law includes a non-exhaustive list of possible unfair terms, including "enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract" and "enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided." In the case law, the Court of Appeal has held that if one condition in a set of printed conditions is particularly onerous or unusual the party relying on it must show he has fairly brought that condition to the other side's attention (Spurling v. Branshaw) -- a point upon which a EULA or TOU may be vulnerable.

The Continent

Danish law addresses the problem of unfair contracts in Article 36 of the Contracts Act, which uses terminology roughly equivalent to that of other countries. France has several laws touching on these topics, including a requirement that the non-negotiating party (e.g. WoW players) must be reasonably aware of the clauses, and that those clauses were expressed in clear and unambiguous terms. France also has a Commission des clauses abusives that makes recommendations for merchants drafting these unilateral contracts. German law also permits courts to intervene in cases of unfair contract terms under both Art. 138 which voids contracts in which one party exploits another's needs or weakness to gain an "obviously disproportionate" pecuniary advantage and Art. 242 which requires contracts to be made in good faith. In response to the growing number of non-negotiated contracts, the Standard Contract Terms Act was drafted in 1972 to deal with this problem; it was made part of the official 1900 code by the Schuldrechtsreform in 2001.

Trans-national

As for the trans-national legislation, two documents come up. The first is the EU Directive on Unfair Terms in Consumer Contracts 1995, which created a baseline set of rules for unfair contracts. All three of the European jurisdictions I've described -- Denmark, France, and Germany -- actually have stronger protections than what that directive provides. The other document is the Principles of European Contract Law, of which Art. 4.110 provides guidelines for dealing with "Unfair Terms Which Have Not Been Individually Negotiated." This says about the same thing as the rest, namely, that a term may be avoided if it causes "a significant imbalance" in the parties' rights and obligations.

WoW and European Law

Remember what I said two weeks ago, about the WoW EULA and TOU being incredibly clear and well organized? Well, I am sorry Euro-WoWers, but y'all are not so lucky. I don't know who's in charge of drafting and publishing the European EULA and TOU, but they need to take some lessons in professionalism from the North American folks. I think the TOU author was attempting to make the document more readable, but his attempts at writing in the vernacular just seem amateurish. (As my Intellectual Property professor, an associate at the law firm that represents Blizzard, put it: question marks and exclamation points have no place in a contract.)

Now let's turn to the actual provisions of the European EULA and TOU. In many ways, it's very similar to the North American license we've already looked at. According to the EULA, Blizzard owns

All intellectual property rights in and to the Game, including without limitation the Locked Software, and all copies thereof (including, but not limited to, any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, any related documentation, and "applets" incorporated into the Game).

The Terms of Use are similar:

All title, ownership rights and intellectual property rights in and to World of Warcraft (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, "applets" incorporated into World of Warcraft, transcripts of the chat rooms, character profile information, recordings of games played on World of Warcraft, and the World of Warcraft client and server software) are owned by Blizzard Entertainment or its licensors. World of Warcraft is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws.

Just as they can post avatar info on wowarmory.com, they can post the same thing on the EU WoW Armory.

We also looked at Blizzard's ability to ban player accounts. This is also very similar to the North American release, but the phrasing of the policy is interesting.

Blizzard Entertainment reserves the right to terminate this Agreement without notice, if you fail to comply with any terms contained in these Terms of Use and/or the World of Warcraft End User License Agreement. In case of minor violations of these rules Blizzard will provide you with a prior warning of your non-compliance prior to terminating the Agreement. If, however, your behavior is utterly inacceptable, in particular if it endangers the gaming experience of other players, Blizzard is not required to provide you with such prior warning. A behavior is considered utterly unacceptable in case of a serious violation of the Terms of Use and/or the World of Warcraft End User License Agreement. Serious Violation would include a violation of Section III above. Also, note that in the event that Blizzard Entertainment terminates this Agreement for breach of these Terms of Use, any right to any and all payments you may have made for pre-purchased game access to World of Warcraft are forfeit, and you agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on your Account prior to any termination of this Agreement.

While this is substantially similar to the North American EULA, Blizzard is doing something slightly different here -- it now has an obligation to inform minor offenders of their non-compliance. This is an obligation not created in North America and is probably due to the difference in European unconscionability law.

On that subject, I should also point out a few other provisions inserted to help avoid findings of unfairness. Blizzard's liability is limited, but to comply with German and Austrian law, Blizzard can be held liable for death or serious injury that results from their gross negligence. (Don't ask me how this could happen.) The EULA and TOU point out that the contracts may change from time to time, at which point players are free to reject the terms and leave. Also, the various provisions dealing with unfairness always look at the totality of the contract in question. Contracts for bank accounts or business purchases are looked at differently than those of an entertainment such as WoW. Blizzard is probably just as secure in its European EULA/TOU provisions as its North American ones.

Well, that's been quite the info dump. Tune in next week when we start to wade into the leech filled swamp of gold farming and contract law.

Remember, this is an entertainment column, not legal advice. If you have a personal legal problem, seek out a personal lawyer. Any other questions about law or law school can be directed to lawbringerjd at aol dot com or @wowlawbringer on Twitter. Whether you get a response will depend on how bored I am in class.