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All of the latest Mists of Pandaria newsThe 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 5 of 5)
Eirik Oct 25th 2010 3:33PM
@sorcha: "that's between you and the shop to sort out" - thus the objection to additional restrictions being placed upon the use of a purchased product after the purchase has been consummated. ... And the objection to details of those restrictions not being available at the place of purchase, prior TO the purchase.
"They were available on the web" and "they were available inside the box" fail on those accounts. That the publisher does not require the retail outlets make those terms available is an issue between the publisher, the retail outlets, and your local law-making body. The fact that laws have not been established to require such is because the public hasn't made an issue out of it.
"The details were available on the web" is acceptable in the same way that freeway bypass details being available
" 'displayed' in a locked file cabinet in the dark basement of the local planning office."
Sorcha Oct 27th 2010 11:40AM
I'm conflicted on this. On the one hand 'the EULA is in the box, by opening the box you accept the EULA' is, frankly, bollocks (and the courts have commented that so-called 'netwrap' clauses in online contracts, i.e where you are deemed to accept the terms by navigating to the site, are dubious for this reason.) So I don't think that it should be possible for Blizzard to claim that you can't reject the software because you disagree with the EULA (and indeed they don't claim this.) On the other hand, contract law seeks to protect the "reasonable expectations of honest men." Is it really unreasonable to expect adult consumers to ask about a refunds policy before they make a purchase?
gamingforumpost Oct 25th 2010 4:54PM
@ Saeadame: Let's say you read the EULA and agree to the terms (which you found reasonable) and start using legally purchased software. Then the developers patch the software without your consent and change the software on your computer and offer you a new EULA that has changed and is no longer something you agree to.
So explain to me why I should have to uninstall. What happened to the product that I had paid for and agreed to the day before it was changed without my consent? How do I get my money back exactly? I could uninstall and resell it but if -I'm- unwilling or unable to agree to the new terms, chances are other people I might sell to don't want it now either. So it has reduced $$ value. According to Saeadame that's fine that I have lost value to something on a whim of a 3rd party with no form of recourse. Personally I see it as extortion.
While this is all "It's Starcraft 2. A game. Who cares?" This would apply to all software. There are $30,000+ software suites out there. One copy. People use that kind of software to make movies, do advanced engineering projects and theoretical physics.
Imagine the case of a movie. 3 years in and 3 months before it is to be released and then there is a patch that changes the software you were using for all your saved edits and computer animation. The new terms of the software include that they receive 5% of any box-office gross of any project made with their software.
So what do you do? Agree to the terms costing you your entire profit margin on the project? Or uninstall the software and set you back a year in development and millions of dollars?
Did you watch the movie "Watchmen"? Did you enjoy it? Do you think it would have been a bad thing if it never saw the light of day due to copyright extortion reasons a few months before the release? Well that -almost- happened. But they producers paid the extortion and we got to see it.
This is where these sorts of precedents lead us. To the destruction of industries in new and creative ways, NOT any sort of benefit to consumers, society or industries.
Solitha Oct 30th 2010 10:41AM
They CAN'T patch the software without your consent. You GAVE consent if you agreed to the EULA to begin with.
"Patches and Updates.
Blizzard may deploy or provide patches, updates and modifications to the Game that must be installed for the user to continue to play the Game. Blizzard may update the Game remotely including without limitation the Game Client residing on the user's machine, without the knowledge of the user, and you hereby grant to Blizzard your consent to deploy and apply such patches, updates and modifications."
Point 8. It's in there.
gamingforumpost Oct 31st 2010 7:24PM
You cannot agree to a contract that allows for unilateral changes in the terms of the contract.
So you allow a patch to the software. As part of that patch to the software that (according to them) you cannot refuse but they also -change the terms of the contract- at the same time. If the terms of the contract change to something you cannot or will not agree to (see above) then what kind of choice do you have?
Here's how a contract will go if this is a precedent:
1) Alice offers Bob a non-negotiable contract "license" for the copyrighted material they need to do a job. It could be software or it could be a car. (Yes, the design of a car is copyrighted, and so is the various software necessary for it's operation.)
2) Bob is happy with the terms of the contract and agrees.
3) Alice sees that Bob is reliant her copyrighted material and changes the software Bob is using.
4) Alice creates a new license agreement for the mandatory patch.
5) Bob is not happy with the terms and would never have accepted those terms to being with. He agrees to the contract or goes bankrupt because Bob -requires- it to do his job.
6) Alice continues making changes and taking value away from Bob via unilateral contract changes because there's profit in doing so.
7) Bob either goes bankrupt or breaks the contract while continuing to use the copyrighted material.
8) Alice reports the offense to the authorities. Because it involves copyright it's no longer contract law, but criminal law.
9) Alice spends zero dollars enforcing her contracts and allows the government to spend money prosecuting offenses to Alice's sole benefit.
10) Society can no longer rely on contracts, and the courts and police now are chocked full of cases that waste crazy amounts of taxpayer's money.
This is where we are heading. If Blizzard "buys precedent" in this case the effects will be far reaching and very very bad. It will result in contracts that are legal extortion.
gamingforumpost Oct 25th 2010 5:45PM
One thing that hasn't been mentioned so far on the Lawbringer is that NONE of the 3 people charged in a US court for breaching a US law are American or live in America. Two are Canadian and one is Peruvian.
This will be very interesting as I can't speak about Peru but what they are charged with is legal in Canada.
Takuwind Oct 25th 2010 7:00PM
Here is how carefully most people read a EULA:
http://techie-buzz.com/tech-news/gamestation-owns-the-soul-of-7500-people-legally.html
The Wanderer Oct 27th 2010 11:33AM
@John Kresh:
"The thing is, you aren't buying the game in the sense that you're entitled to do whatever you want with it. You're buying a license to play the game."
And that's exactly the problem.
To borrow phrasing from the OP, while the "licensed, not sold" business model may be good for the video game industry, it is bad for society.
I'm not sure I'd support abolishing it wholesale (e.g. by a law stating that all such license agreements are considered invalid by default), because there would be serious consequences and upheaval resulting from such an extreme, abrupt change, but the current state of affairs - much less the one we are moving towards, as EULAs grow legally stronger - is intolerable, and something has to change.