Your lengthy text has a huge flaw on a basic assumption..

0.01% read the EULA, and 0.001% understand it completely. And of those maybe 3 or 4 guys even care enough, to bother about a game EULA with the effect to do something.

That means maybe once every 6 full moons, 1 guy makes a stink about the EULA of SERVICE X - because he has an agenda to bash it, or because he is fanboy of "competing service Y"

In Europe the EULA's can not limit your basic rights. So they can write whatever they want, nobody here cares (unless its license related restrictions...) ie. DRM

Also you will see this TOS term included EVERYWHERE. The US Court system was always known to be beyond salvation. But that supreme court ruling has damaged the law beyond repair, it was a WRONG WRONG WRONG decision guided by some agenda and corporate ass-kissing of the judges.

Dev wrote on Sep 24, 2011, 20:32:
Fairly sure ther's a diff between criminal and civil lawsuits.

IANAL

Yeah there is. There's even a larger one between criminal, civil, and tort.

Not surprising since the supreme court ruled about class action lawsuits able to be forbidden in favor of arbitration. Shortly EVERY company is going to have similar language about class actions in their ToS.

Of course since EA loves being a douche, they are trying to forbid all suits, not just class actions, which is NOT what the supreme court said.
I'm quite surprised they apply this to themselves in the ToS. Because IMHO if someone sues them, they can't counter sue without invalidating that bit.

IANAL

eRe4s3r wrote on Sep 24, 2011, 08:14:
Which by the way means that EA couldn't sue hackers that hack origin if it found out who did it.

Stupid TOS is stupid ;p

Fairly sure ther's a diff between criminal and civil lawsuits.

IANAL

theyarecomingforyou wrote on Sep 24, 2011, 12:16:
4) Even if you do disagree, there is a policy on opened software that prevents you from returning it for a refund.

I seem to recall a class action about best buy, compusa, adobe, ms, etc where they agreed to accept opened software in certain cases exactly because of the bit in the EULA about returning it if you don't agree to the eula and not having access to it beforehand.

IANAL
This comment was edited on Sep 24, 2011, 20:46.

Sorry EA, you cannot "waive" an inherent law to every citizen in America, which is the right to sue anyone and (unfortunately) for any reason. They will get fucked for even having posted this idea.


I was offered a job at a tech consulting company, and in the agreement it stated:
"If terminated, you are not allowed to work for yourself or a competitive company within a 100 mile radius of (our) company"

This was not only an illegal agreement (I never took the job and pointed out to them it was an illegal statement on their behald), you cannot deny someone the ability to earn income and work in a competitive field. Therefore you also cannot remove the right for someone to sue you because they agreed to that on paper as it is LAW.

Also back in the 2001-2003 .com bomb days, temp companies, suffering from the recession/depression, were keeping people as "indefinite" temps. So you could work 10, 20, 50, 100 hours, forever, and never receive the benefits of a full time employee. I believe both California State and Federal laws prohibit this, and there is something of a 60-90 day temp employment before a company has to accept your as an employee, part time or full, or terminate you as a temp. Many companies were sued over this, even when people acknowledged and agreed to the work because they were desperate. More corporate exploitation yet again.


EA - just one of the worst mother fucking companies I have ever worked for. I hate them with a passion.

Wikidd wrote on Sep 24, 2011, 15:17:
Actually, here in the UK we have corporate manslaughter legislation, which makes it possible for companies to be fined and manager to be imprisoned. It's incredibly hard to prove in court as you have to identify a "controlling mind" who was responsible for the incident and grossly negligent; that means convictions are easier in small companies and almost impossible in large ones.

Yes, but again it shows how businesses are treated as separate entities and not individuals. Corporate manslaughter is about gross negligence and misconduct so severe that it warrants criminal prosecution. It is completely different to murder, which is about the actions of an individual. Though I prefer it to the capitalist principles of civil litigation, as I do not believe all punishment should be purely financial - that implies that immoral behaviour is acceptable if you have enough money.

Wikidd wrote on Sep 24, 2011, 15:17:
I agree with where you're coming from. Thankfully we have much stronger consumer protection law here, largely due to our membership of the EU as most of it is just common market regulations. I doubt this litigation waiver would fly here in the UK.

Indeed, though there are so many issues with our own legal system that I wouldn't take any solace in it.

theyarecomingforyou wrote on Sep 24, 2011, 14:29:
That's simply not true. Companies have a distinct legal identity that protects them from liability, which is why the owners and shareholders of a company cannot be held personally responsible for injuries or fatalities that occur within the business.

Actually, here in the UK we have corporate manslaughter legislation, which makes it possible for companies to be fined and manager to be imprisoned. It's incredibly hard to prove in court as you have to identify a "controlling mind" who was responsible for the incident and grossly negligent; that means convictions are easier in small companies and almost impossible in large ones.

The obvious point I would make relates to financial services. Here in the UK banks are required to inform you of the details of the contract, as well as providing you with a written copy. Any questions have to be answered and the customer is left fully informed of their rights. EULAs are long, complicated and your rights as a consumer aren't explained in lay-English.

[...]

I do not care for how the system currently operates. A business should not be able to take away legal rights by burying a retarded clause in a EULA that nobody reads. Full stop. Common sense should surely apply here?

I agree with where you're coming from. Thankfully we have much stronger consumer protection law here, largely due to our membership of the EU as most of it is just common market regulations. I doubt this litigation waiver would fly here in the UK.

theyarecomingforyou wrote on Sep 24, 2011, 14:29:
I think you have to look at how each respective system works in practice. The US failed to address the anti-competitive behaviour of companies like Microsoft and Intel, whereas the EU took a very strong stance in favour of the consumer. It was similar with regards to telcoms and roaming charges. You also see much greater scrutiny over large mergers in the EU, where the US tends to have much lower requirements.

The DoJ has a mixed record but it has done well with things like dealing with Intel's anti-competitive practices (forced to "invest" in AMD) and Samsung's price-fixing (giant blanket penalties), as well as corporate break-ups (better than it was). Really it is a matter of history as you have to look at the anti-trust progression to see that there are very real limits to what is deemed acceptable. I can't disagree that the US sucks on implementing standards as fast as Europe does, but to be honest, it's always worked out better in the long-run, HDTV being the best example. Fact is, it's better to see how it works in other countries before implementing it yourself; that's how China has caught up with the Western world, after all. It's more efficient to learn from other people's mistakes while enjoying a "free" market in the meantime.

I agree completely and I find it very disappointing how the UK so closely models the US lawsuit culture, as we're usually only 3-5yrs behind. The trouble is a legal system that rewards ridiculous claims.

I deal with people in the UK regularly so I must say I have a particularly good perspective of things. I find it to be a reflection of Europe as a whole, actually, just a bit time-lapsed; a region that is still grappling with the problems that come from immigration and dissent while trying to exert their institutional ideals. The problem is that not all resources are created equal; while space is at a premium in Japan, forcing JIT (just-in-time) manufacturing, the US has space to spare, creating warehouses out of Home Depots and Walmarts. You simply cannot apply the same solutions to different geographies, and as the UK is discovering, to different cultures.

That's simply not true. Companies have a distinct legal identity that protects them from liability, which is why the owners and shareholders of a company cannot be held personally responsible for injuries or fatalities that occur within the business. They are still financially responsible where determined in court, yet that is a separate issue. Companies are made of individuals and businesses should not be allowed to use their collective power to restrict the rights of consumers, as is the case with EA and Sony.

It is true; companies are legally represented as individuals. That is what protects the leaders of the company and NOT the shareholders, and it is why the Enron incident occurred. Responsibility is measured in dollars and history has shown us, in that event and others, who came out on top. That fiasco in fact heralded a new age of whistle-blower protections and benefits specifically designed to overcome limitations in that paradigm.

Why am I downloading an avi? Is it 2000 again?

Ant wrote on Sep 24, 2011, 14:49:
Oh great. Now, every companies will do this!

Pretty much. How soon until Steam adds it?

Oh great. Now, every companies will do this!

In the interests of peace, I present...

http://dl.dropbox.com/u/26718983/eula.avi

KGrT wrote on Sep 24, 2011, 11:37:
You should be mad! Nothing will happen until everyone is mad enough to force Congress to repeal the FAA.

I couldn't care. I live outside the US, and as such your laws have no impact on me. Neither do contracts, or ToS, or EULA's. Though I find it rather amusing that people don't do anything about it there, and they say Canadians are good at rolling over and doing nothing.

By the way, the quote option helps. Makes it easier on the eyes.

NewMaxx wrote on Sep 24, 2011, 12:33:
One of my degrees is in business administration with two years of contract law. One of the major areas the curriculum covered was the fulcrum point of the law in both the US system and in the EU (which, btw, was created by the US through the Marshall Plan after WW2, much like we rebuilt Japan's government). For the former, it is the customer, for the latter, it is the business; it's as simple as that. I only used the phrase to simplify that fact - it implies that companies in the US must work harder to protect their interests because there is inherently more brutal competition than in the government-regulated EU.

I think you have to look at how each respective system works in practice. The US failed to address the anti-competitive behaviour of companies like Microsoft and Intel, whereas the EU took a very strong stance in favour of the consumer. It was similar with regards to telcoms and roaming charges. You also see much greater scrutiny over large mergers in the EU, where the US tends to have much lower requirements.

NewMaxx wrote on Sep 24, 2011, 12:33:
However, I do agree with you that the phrase "trivial lawsuits" is subjective. That's why the legal system in the US is so terrible today, since everybody sues over everything and litigation takes years and tens of thousands of dollars because it is backlogged so far; we in essence have a liberal justice system that encourages that even the most "trivial" matter have its day in court. The idea that money tends to make a lot of that go away is true, but not inherently evil in purpose; in fact, most people start lawsuits specifically to force settlement payouts.

I agree completely and I find it very disappointing how the UK so closely models the US lawsuit culture, as we're usually only 3-5yrs behind. The trouble is a legal system that rewards ridiculous claims.

NewMaxx wrote on Sep 24, 2011, 12:33:
Companies are treated as individuals in this society and thus are entitled to proactive protection as much as you are, hence this provision.

That's simply not true. Companies have a distinct legal identity that protects them from liability, which is why the owners and shareholders of a company cannot be held personally responsible for injuries or fatalities that occur within the business. They are still financially responsible where determined in court, yet that is a separate issue. Companies are made of individuals and businesses should not be allowed to use their collective power to restrict the rights of consumers, as is the case with EA and Sony.

Wikidd wrote on Sep 24, 2011, 12:41:

theyarecomingforyou wrote on Sep 24, 2011, 12:16:
1) When a consumer buys a software product they do not have access to the EULA beforehand.
[...]
4) Even if you do disagree, there is a policy on opened software that prevents you from returning it for a refund.

That's a problem between you and the retailer who sells you the box. Given the circumstances, you could probably win in small claims if you returned a box containing a EULA you disagreed with.

Obviously that doesn't apply to PSN or Origin if you buy games direct from them as you can see the EULA on their site.

In the USA they have. There's also a law over there called the Federal Arbitration Act that means if you agree to arbitration, you have to use it.

My understanding is that there have been conflicting rulings by courts of different levels regarding different aspects of licence agreements but that EULAs as a whole have not been ruled to be legally binding. This is what I read before making my post.

The rest of your points about how EULAs are complicated and most people don't read them don't matter. Most people don't read their employment contracts, their insurance documents or any other legal thing that uses hard words. Complexity and length are only relevant if you're trying to argue the contract was misrepresented to you, e.g. someone sells you free cake for life but hidden in the small print there's a term that limits it to 6 months.

The obvious point I would make relates to financial services. Here in the UK banks are required to inform you of the details of the contract, as well as providing you with a written copy. Any questions have to be answered and the customer is left fully informed of their rights. EULAs are long, complicated and your rights as a consumer aren't explained in lay-English.

The issue here is that the law should offer protection to prevent the restriction of the right of consumers. If it isn't explained clearly and directly that you are sacrificing your legal rights then obvious that should be a non-starter and there should be rights which you cannot give up. That is the case with a lot of laws here in the UK regarding consumer protection, especially relating to distance selling and cooling periods.

I do not care for how the system currently operates. A business should not be able to take away legal rights by burying a retarded clause in a EULA that nobody reads. Full stop. Common sense should surely apply here?

"The price of freedom is eternal vigilance."

Mashiki Amiketo wrote on Sep 24, 2011, 09:22:

KGrT wrote on Sep 24, 2011, 08:54:
TOS and EULAs are still valid under US law. To get out of one, you must show procedural and substantive unconscionability in the contract. The Toyota stalker advertisement case is an **excellent** example of such unconscionability. That however, has no bearing on the validity of EA's arbitration clause.

You mean like turning around and holding an individual hostage within arbitration with lawyers? Or by using an agreement that's so long, with terms that most people don't understand and try it as enforceable? Those are pretty good examples. Remember that the average reading level in north america is between grade 6 and grade 8.

Speaking of agendas...

In case anyone is interested, more bad news.

Will I require an Origin account in addition to a SWTOR account?
Yes, you will require an active Origin account in addition to a Star Wars: The Old Republic account. You can create a new Origin account by going to the Origin Account Registration page, entering your email address in the appropriate space and clicking “Start my EA Profile.” This will take you to a screen where you can create your EA Master ID and set your password. You can also start a new Origin account by logging in with either your Facebook or PlayStation Network accounts, or by downloading and running the Origin client for the first time.

Do I have to create an account on SWTOR.com in order to play Star Wars: The Old Republic?
Yes. In order to be able to play the game you will have to create an account on the official Star Wars: The Old Republic website. If you are not logged in to your SWTOR account when you go to enter your Pre-Order code, you will be prompted to either sign in to your account or create a new account. The email address that you use when you create your account will also be the email that is used when you log in to either SWTOR.com or the game.

"YOU AND EA ARE FOREGOING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL."... sooo what is the point of having a TOS?

Mashiki Amiketo wrote on Sep 24, 2011, 09:22:
Remember that the average reading level in north america is between grade 6 and grade 8.

This is true...and actually much worse in some states...believe it or not. When I was taking bone-head English in college I was given illiteracy as one of my 1,000 word essays...maybe they were trying to make it a personal issue because I didn't even qualify for bone-head English...they wanted me to take English as a second language, but I my problem was that I didn't know any other language either.

I was astonished that over 50% (some sources report higher incidence) of high school graduates in the USA are functionally illiterate. What that means is they can read something...know what most of the individual words mean, and perhaps understand the meaning of most sentences; however, they don't understand any ideas or messages that those sentences and paragraphs intend to transmit. There is plenty of evidence from substantiated sources such as university studies and even Federal and State reports which prove it.

In fact, anyone that continues to agree to EA's UELA is evidence enough that they are functionally illiterate or just don't care about democracy or freedom.

As to the discussion concerning the legality of UELA's especially those which indicate that the purchaser must agree to have no constitutional rights to a jury of their peers...being nearly 54 I remember some big changes in laws and judicial processes some 40 years ago or so concerning "small print" in contracts. Many businesses used to present contracts for people to sign, which had important information for example requiring people to pay large or unspecified amounts for the products or services, in an extremely small font which could not be read with the naked eye and frequently the contract was a copy where the print was so smudged that it was completely illegible even under a magnifying glass. As I recall the courts got tired of it and funneled some law suits to the U.S. Supreme court so that a Federal ruling would be made that made it clear that any contract which used that technique would not be enforceable. Didn't anyone wonder why some of the contracts and UELA's have capital letters? It was that ruling which made it necessary.

But, don't fool yourselves...this is a game company and not a real estate or financial institution like with the "small print" ruling. This is a game company and nobody is going to care if some violent game players lose their constitutional rights in order to play some games. The only person who should care is you...and you are the first line of defense for your rights. And, yes...I read and understand every UELA that I agree to, and I keep a copy either soft or hard, so that if necessary I can refer to it at any time if I think there's something that isn't right. To be honest, it only takes about 15 minutes to read 5,000 words (3 minutes for every 1,000 words), and most UELA's plageraize other UELA's so that they are all very similar...you just need to train yourself to spot the differences. For example, I just signed an agreement to give all the rights to any of my inventions to a contract company that has offered me a job...but as with all contracts of this type it specified that it is only in conjuction with the work I do as Work For Hire with that company. I remember one time I actually started work for a company in their computer center just inserting data disks...not even a technical position, and they gave me a contract to sign after I had been working there for 2 weeks which clearly said I had to give them all inventions and ideas prior and after my work there...I circled the portions and gave it back to them unsigned...they fired me the next day. Years later I own the copyrights to a suite of programs equal to MSOffice and have ideas and inventions which include gravitational energy extraction and molecular circuits.

My point is that the future could be very different from what it is painted to be by a company. If you sign your rights away then more than likely the company will do things in the future which will cost you everything you own...because they can...and you let them. Also, keep in mind that most likely at least 80% of all gamers who read and understand the UELA will not be accepting it. So, with only 20% of the share of gamers EA's Origin service will most likely have financial trouble very soon and will have to raise it's prices to avoid bankruptcy and soon after will most likely lose another 10% and most likely fold and you will be forced to sue for your money back so you can get the software licenses validated by another download service...in fact so many will need to do that it will be forced into a class action suit by the courts...oh wait...you signed a UELA saying you can't participate...BOOM! You lost everything...whose fault? Yours.

This comment was edited on Sep 24, 2011, 13:50.

Edit: In fact, here's the email I just sent to ea:
Losers,

I decline this offer. I specifically forbid the use of my previous EA account from becoming an Origin account. I also specifically revoke any and all rights EA might have had to my account prior to this email. I consider this to be your only notice that I am ending any and all relationships that I have with EA. I also reserve the right to sue in court as an individual and as a participant in a class action suit by not logging into any EA account for which I had created or was created on my behalf in order to keep my rights to licenses which I have previously purchased.

Sincerely,
Steve Wood

theyarecomingforyou wrote on Sep 24, 2011, 12:16:
1) When a consumer buys a software product they do not have access to the EULA beforehand.
[...]
4) Even if you do disagree, there is a policy on opened software that prevents you from returning it for a refund.

That's a problem between you and the retailer who sells you the box. Given the circumstances, you could probably win in small claims if you returned a box containing a EULA you disagreed with.

Obviously that doesn't apply to PSN or Origin if you buy games direct from them as you can see the EULA on their site.

6) EULAs haven't been proven to be legally binding and are completely unrelated to the prenup of some random person.
7) EULAs cannot bury a clause about signing away legal rights. Any legal rights that are stripped away should be presented separately, and even then their validity is questionable.

In the USA they have. There's also a law over there called the Federal Arbitration Act that means if you agree to arbitration, you have to use it.

So, a EULA is considered a lawful contract and that contract contains a statement that you can't sue and must use arbitration.

The rest of your points about how EULAs are complicated and most people don't read them don't matter. Most people don't read their employment contracts, their insurance documents or any other legal thing that uses hard words. Complexity and length are only relevant if you're trying to argue the contract was misrepresented to you, e.g. someone sells you free cake for life but hidden in the small print there's a term that limits it to 6 months.

You guys seriously need to start organising for another revolution

theyarecomingforyou wrote on Sep 24, 2011, 11:54:
The US has always prioritised businesses over the rights of individuals and the saying "the customer is always right" only exists to placate customers and retain them long term - it's designed to make businesses more money, not look after consumers. The US is the only country to have prided itself on "trickle-down economics", which has proven to be a fallacy. The EU has a much better track record of protecting the rights of consumers, as evidenced by the rulings against Microsoft, Intel and the telecoms industry in recent years.

EA and Sony are contributing to the legal and moral quagmire with the sole aim of limiting their exposure and protecting their profits. Nobody should support a business trying to bypass the legal system to protect their shareholders. And your assertion that it's to avoid "trivial lawsuits" implies is completely subjective, as who decides what is or is not trivial? The whole point is that the legal system decides that and this is an attempt to short-circuit that process to save money.

One of my degrees is in business administration with two years of contract law. One of the major areas the curriculum covered was the fulcrum point of the law in both the US system and in the EU (which, btw, was created by the US through the Marshall Plan after WW2, much like we rebuilt Japan's government). For the former, it is the customer, for the latter, it is the business; it's as simple as that. I only used the phrase to simplify that fact - it implies that companies in the US must work harder to protect their interests because there is inherently more brutal competition than in the government-regulated EU.

However, I do agree with you that the phrase "trivial lawsuits" is subjective. That's why the legal system in the US is so terrible today, since everybody sues over everything and litigation takes years and tens of thousands of dollars because it is backlogged so far; we in essence have a liberal justice system that encourages that even the most "trivial" matter have its day in court. The idea that money tends to make a lot of that go away is true, but not inherently evil in purpose; in fact, most people start lawsuits specifically to force settlement payouts. Companies are treated as individuals in this society and thus are entitled to proactive protection as much as you are, hence this provision.

P.S. Just for the record, I hate EA and Origin and talk s*** on them regularly to all my gamer friends.

Flatline wrote on Sep 24, 2011, 11:52:
Bullshit. This is a crap move in the EULA, but "I didn't read the contract" is a bullshit defense. When you enter into a legally binding contract or agreement, you take a certain measure of responsibility. Ignorance is not a legal defense.

Okay, let's break this down.

1) When a consumer buys a software product they do not have access to the EULA beforehand.
2) The EULA is often excessively long and incomprehensible to a laymen. The EULA for Steam is over 5000 words long.
3) Every piece of software has one, so the combined reading wordcount of the EULAs for an average computer setup would range from the tens of thousands to the hundreds of thousands. Clearly infeasible.
4) Even if you do disagree, there is a policy on opened software that prevents you from returning it for a refund.
5) At least 99% of people click 'Agree' without ever reading it. Common sense dictates that that cannot be legally binding, unlike a mortgage or loan agreement where is can reasonably be expected that people should read it but is also legally required that the person issuing it clearly explains to the customer what it contains and does not misrepresent it.
6) EULAs haven't been proven to be legally binding and are completely unrelated to the prenup of some random person.
7) EULAs cannot bury a clause about signing away legal rights. Any legal rights that are stripped away should be presented separately, and even then their validity is questionable.

If they want EULAs to be binding then they need to be fit for purpose. That means that they should be easy to read and understand to a laymen and should not be excessively long. There should be a bullpointed list that reflects what is included, which would be expandable to cover the exact implementation. The key points should not amount to more than a few hundred words.

I'm sorry but you're an idiot if you think that EULAs as they currently stand should be legally binding. They fly in the face of all the consumer rights that people have fought for over the centuries. They are a way for businesses to absolve themselves of legal responsibility. They are a way for businesses to make more money for their shareholders.