The Lawbringer: Buying precedent
by Mathew McCurley 
Oct 24th 2010 at 6:00PM
Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Running parallel to the games we love and enjoy is a world full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?
The following is an opinion piece dealing with Blizzard's ongoing litigation. The opinions and views expressed are solely those of me, Mathew, the columnist.
The following is an opinion piece dealing with Blizzard's ongoing litigation. The opinions and views expressed are solely those of me, Mathew, the columnist.
You might have heard that Blizzard and its lawyers have recently started new litigation against three StarCraft 2 hackers in District Court. To a lot of people, this looks like another case of Blizzard going after more hackers for screwing with the online experience. To me, I see Blizzard's lawsuits as positive EULA-builders with huge benefit to the independent game market. It sounds crazy, but less so when you think about the concept of buying precedent.
First, what's this case all about? In the absolute simplest terms, Blizzard is suing three (potentially more) hackers for violating the limited use of the licenses granted by the software and Blizzard, and copyright infringement by changing copyrighted code. The written, physical code of video games and software can be copyrighted and is being messed with by hackers to change the game experience.
The legal system in the United States is mainly about precedent; judges, lawyers and everyone in between like to make decisions based on past decisions. It gives a sense of focus and predictability to the legal system. Lawyers then argue why something should look like this particular example or why it doesn't look like that specific example. If stealing fruit were illegal and I stole an apple, the opposing side would say I had committed the crime because I stole an apple. An apple is clearly a fruit, and presumably, there has been a case before that says an apple is a fruit. But if I had, say, stolen a tomato, and there was no case that said a tomato was a fruit, I could make the case that maybe, just maybe, the tomato was not a fruit but rather a vegetable.
Precedent is incredibly important. Big companies sometimes don't even want to go to court over cases that might set bad precedent for them. It's cheaper in the long run to pay someone off in a settlement than risk a court's putting it down officially that what that company was doing was bad, wrong or in any way adverse to the way it does business.
So what precedent is Blizzard trying set with the Glider case and, potentially, with these new hackers? The EULA is not a solid thing. End User License Agreements have been and will be on shaky legal ground for a while.
Two theories
EULAs are seen by courts as either enforceable or unenforceable. Some are seen as contracts of adhesion -- you have no choice but to agree. Contracts like that are no good, usually. Other courts see EULAs as valid and allow the provisions therein to be enforced.
Blizzard's cases tout the EULA as something of a foundation for many of the claims against hackers and, in Glider's case, the bot program that could play WoW for you. Blizzard actively seeks to strengthen the End User License Agreement through the courts. A strong, enforceable EULA is the not-so-secret weapon in combating hackers in a game like WoW.
On the one hand, strengthening the EULA is a good, even great, thing for the video game industry. We have no idea what is coming next in the virtual space, MMOs or video gaming in general. We will be taken by surprise constantly over the course of our lives. Having a strong EULA means that game companies can take risks with certain provisions in their EULAs as well as riskier types of games that have the potential to be taken advantage of. If games are licensed rather than owned, games can be said to be more protected. Developers and publishers will think less about the risk of piracy and loss and more about the potential reward.
On the other hand, do you ever read a EULA? Seriously? I've only read EULAs when I was assigned to. Nobody reads contracts -- judges know this, lawyers know this and you know this. This is why you can't put something too crazy in a EULA like the one you agree to when you play World of Warcraft. Everyone knows you aren't going to read it, so they can't make you give up your firstborn after you get banned from the servers. (Not only that, but infant swapping is definitely against the constitution somewhere ... maybe.) Strong EULAs potentially mean less freedom for consumers as to what they can or cannot do with the software that they have purchased.
Fighting an expensive fight
What this all comes down to is that Blizzard is fighting for its own purposes, sure, but also doing some interesting, collateral things for the gaming industry. Blizzard is funding precedent -- it has the time, money and resources to turn EULAs into strong building blocks of the gaming industry, as well as to further the acceptance of code copyrights and infractions into the American legal system. For the millionth time, lawsuits only happen when someone is angry enough to sue, and so angry that he is willing to shell out ridiculous amounts of money to fight about this. For Blizzard, this is not an expensive win for something that could prove incredibly important in the future for it and the video game industry in general -- strong EULA enforcement.
This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wow.com.Filed under: Analysis / Opinion, The Lawbringer
Reader Comments (Page 1 of 5)
Allan Oct 24th 2010 6:14PM
i get what your going at but sc2 isnt a subsription, you dont agree to a EULA to it specificly and it is completely a purchase and its yours model.. i dont think they can actually succede in court on that base. do you get sued for hacking your phone/laptop/ipod no. the way copyright law has changed those things are legally jail broken and this has no lisence agreement to it. yes there is the one for battle.net but it doesn't have specifics for each game. i think that if it was wow it could happen, do to your eula attacthed to the box itself, but sc2 is a lot different.
Zanathos Oct 24th 2010 6:36PM
Apple does go after people who crack their products.
Allan Oct 24th 2010 7:09PM
legaly, they cant anymore due to a few months ago copywrite law adjustments they can say it voids waranty do to tos but there is no more ways to go after you unless of course you used it to muder or sumthing of the like.
see here:
http://www.geeky-gadgets.com/iphone-jailbreaking-is-now-legal-due-to-changes-in-copyright-law-27-07-2010/
it does mean that apple doesnt agree with it and will try to stop it but haeve barriers to stop them from doing anything to you other than revoking waranty.
QQinsider Oct 24th 2010 7:16PM
"Apple does go after people who crack their products. "
Please provide a link to any lawsuit that Apple has filed against someone for jailbreaking an iphone.
You can't, because it has never happened.
In fact, Apple recently lost this argument with the Electronic Frontier Foundation when the U.S. Copyright Office granted an exemption to jailbreakers.
joseph.krebs Oct 24th 2010 7:17PM
You don't accept an EULA when running SC2 for the first time? I'm pretty sure that's not correct. I think you even have to re-accept every time it's patched. And, I don't understand your subscription/one time payment argument. What's the difference supposed to be, legally?
Also, companies don't sue individual users often because there's no point. Just because they don't sue doesn't mean they can't. It's just not profitable or useful, unlike this case where Blizzard wants to establish the law.
Zanathos Oct 25th 2010 2:56AM
I didn't necessarily say lawsuits and am not aware of any, however, the very decision you cited is an example of them going after the customers, so thanks for demonstrating it.
Sending updates to disable jailbraked (jailbroken?) iPhones qualifies as screwing with customers who've already paid for the product. Good to hear they're losing the battle on the legal front over that crap.
ronin Oct 25th 2010 7:18AM
I have never installed software without signing an EULA, and you do not own Starcraft, you lease it - just like every other software.
Tortious Oct 25th 2010 1:03PM
No, you do not lease it. You have a license to it. A lease implies that you have proprietary rights to the property, which you do not under a license.
Arjunas Oct 26th 2010 12:36PM
I think Blizzard is within their right to limit your ability to mod Starcraft II because it is licensed software. However, I also think they need to change their distribution methods to reflect the fact that it is licensed software and not purchased software.
The problem is this; I buy the game from WalMart for $50 before ever seeing the EULA or Licensing agreement. By the time I get a chance to go "Oh noes, I thought I purchased this game, not licensed it. I do not agree!" it is too late and the game box has been opened and I'm out $50. That, to me, is illegal. I never got a chance to reject their licensing agreement before paying for the product and now I am screwed out of $50.
How it should work is this; I obtain and install the Starcraft II Client for free (Either downloading it directly from Blizzard, or picking up a Free Trial from WalMart) and am presented with an in game Activation screen. Here I can either go purchase a digital key online (Using my credit card) or enter a key I bought from WalMart for $50 (Contained in a separate box than the Free Trial - much like a WoW Timecards). I now have the full ability to reject the EULA and not incur any costs (Since the Client was free and I can return any store bought Activation keys since they do not have to be opened to install the game).
Is it silly that the best way to handle this is to just remove the little piece of paper containing the Activation Key from the Starcraft II box and sell it separately? Yes. But by doing that no one can claim that they were "duped" into buying a license for Starcraft II and not the game or that they have modding rights to the software since they purchased it (Seeing as the Starcraft II Client software was provided to them for free and they clearly paid $50 for a separate Activation license).
Eventually, people will learn that the new way of purchasing software is different than it was 5 or 10 years ago. You no longer own your games, you license them. In truth, we did this to ourselves by hacking, inappropriately modding, and pretty much defiling many of the older games that were sold to us. Now software companies can protect themselves by licensing it to us. Annoying, yes. Unwarranted, no.
Solitha Oct 30th 2010 10:32AM
@Arjunas...
You know, you have a point.
Oh wait, no you don't.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO INSTALL, COPY OR USE THE GAME. IF YOU REJECT THE TERMS OF THIS AGREEMENT WITHIN THIRTY (30) DAYS AFTER YOUR PURCHASE, YOU MAY CALL (800)757-7707 TO REQUEST A FULL REFUND OF THE PURCHASE PRICE.
Right smack at the very top of the EULA.
gamingforumpost Oct 31st 2010 7:51PM
@ Solitha
If someone goes into WalMart and slaps down $50 for a product then they have a contract with WalMart. That's it. If the product manufacturer has additional consumer benefits like a points program or a mail in rebate then that's some bonus thing they are doing. There is no legal requirement that the -manufacturer- give you your money back in the case of a problem. For example if you have a problem with a toaster bought at WalMart then you can't go to the toaster manufacturer and demand your money back. When I discover it's the wrong color I can return it for a full refund.
If a EULA is presented that allows for a full refund then it's at that company's =whim= to provide a refund*. As part of that =whim= there is a 30 day condition on it. I can buy a toaster and have it still in the box 2 months later then return it. Under section 8 above in Blizzard's EULA what is my legal recourse exactly if I purchase that software today and give it (sealed) to my lawyer friend on his birthday 3 months from now? Not a theoretical question since the collector's edition of that's available today won't be available in 3 months. He decides he doesn't agree to the terms of the EULA so he does what exactly to get $50 returned to him (or to me)?
*note: Outside of California it's a whim. Inside California opened software can be returned to the manufacturer =regardless= of what the EULA says.
gamingforumpost Oct 31st 2010 8:05PM
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Shrikesnest Oct 24th 2010 6:14PM
And on the other hand...
http://xkcd.com/501/
Zanathos Oct 24th 2010 6:34PM
And judging from the article I've just read, "Nobody reads contracts -- judges know this, lawyers know this and you know this. This is why you can't put something too crazy in a EULA like the one you agree to when you play World of Warcraft. Everyone knows you aren't going to read it, so they can't make you give up your firstborn after you get banned from the servers."
So yes, it's funny, but not really relevant or accurate. Provisions ruled unreasonable will just get thrown out.
Shrikesnest Oct 24th 2010 6:36PM
Uh... no. "I didn't read the contract I agreed to" isn't a legally allowable defense any more than "I don't read the laws, so I had no idea that theft was illegal." EULA provisions get struck down for a lot of reasons, most of them having to do with consumer protection laws enacted in different states, but almost no judge is going to let you off the hook because you just didn't read what you signed.
Tuhljin Oct 25th 2010 1:15AM
Yes, generally speaking, "I didn't know the law" is not a valid defense, but contracts aren't the law of the land and provisions have been and will be thrown out based on how reasonable they are. They've even been thrown out sometimes when it was clear all parties DID read and understand them. No matter how many times you repeat it and no matter how many "thumbs up" you get, your point was already addressed in the article above and other legal experts will tell you the same thing, as will a cursory reading of a few news stories on the subject.
Zanathos Oct 25th 2010 2:50AM
Don't know what's so hard about this. XKCD is great, but comics are funny because of exaggeration. Contracts are thrown out even without "Reading this signifies you consent". The defense isn't "I didn't read it", the defense is that the contract was invalid.
Skrotus Oct 25th 2010 3:24AM
This issue (and the comic linked itself) have nothing to do with not reading the EULA, it's about having a contract shoved in your face after you're already invested. Typically you don't see a software EULA until you've paid for and installed it.
Mephistopheles couldn't even have read the sign before entering the room.
Sorcha Oct 25th 2010 4:33AM
Basically:
Not reading it & provision deemed fair = provision and rest of contract still binding.
Not reading it & provision deemed unfair = provision not binding. Rest of contract still binding (if fair.)
Reading it & provision deemed unfair = provision not binding. Rest of contract still binding (if fair.)
Doesn't depend on reading it but on the unfairness of the term.
NB: it's called unfairness in the UK (see: Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1979.) I don't know if it's different in the US.
Eisengel Oct 25th 2010 7:04AM
I was the same way with EULAs and click-throughs... until I wrote a paper on Copyright for one of my undergrad classes a while ago. Ever since then, I read everything. It surprises a lot of people when you actually read the thing you are going to sign. Although largely uneventful, you do uncover some interesting things.
Once I was buying a new car and the dealer had the make and model with the color and interior I wanted driven up to the lot. When I was reviewing the contract I found it was for a used car, not a new one. Apparently the distance the car had to travel caused it to no longer be new under my state's car dealer responsibility laws.
Once I was making some investments and found a typo in the fund contracts - much to the chagrin of the advisor I was working with. He said that about 5,000 people had signed that same contract without noticing that.
Once my employer was late in renewing me on payroll due to budget issues, however due to the union contract laws I was able to have them disburse to me 'emergency funds' after a certain period after which they would be liable for prosecution under my state's law for breach of contract due to negligent nonpayment. I was being payed through public funds at that time, so the rules were very, very strict.