Civilization 4: Return of the ridiculous EULA

Because it’s funny? That these things keep gettting ever-stupider is also pretty topical for a games forum.

PC games are certainly sold as fungible goods. I would certainly expect every other copy of Civ 4 or FEAR on the shelf to be identical to the one I picked up off the shelf (unless of course, it’s marked as a special edition, etc). It’s a copyrightable work sold on a fixed medium, and I would expect it to be governed by the doctrine of first sale just like any other copyrighted work sold on a fixed medium.

While it not feasible to go after an indavidual user I’d guess the b) part could technically be used against retailers in the market of selling/buying used games. Maybe its the start of some publishers wanting to try to do something about the secondary games market. Doubt it would work but I wouldn’t be surprised to see them try.

If these EULAs can’t be enforced in a court of law, and not even the developers take their language seriously, then why on earth are publishers paying lawyers to draft this nonsense in the first place?

Do you guys read EULAs? They pretty much all have crap like this, Doom3 had a specific line that you can’t lend it to a friend. I am not surprised people being pissed with the wording, but that one game gets singled out over another is what surprises me.

Chet

In part because the people who blindly assert that EULAs can’t be enforced in a court of law are generally not attorneys and are simply throwing out blanket statements that make themselves feel good. Most attorneys who are intelligent (and don’t want to get sued for malpractice) don’t make statements like that.

It is much more of a grey area of the law than people seem to want to believe.

In part because the people who blindly assert that EULAs can’t be enforced in a court of law are generally not attorneys and are simply throwing out blanket statements that make themselves feel good. Most attorneys who are intelligent (and don’t want to get sued for malpractice) don’t make statements like that.

It is much more of a grey area of the law than people seem to want to believe.[/quote]

Also the game companies attorneys told them they should pay the game companies attorneys to write this crap into their EULA.

Even if it’s a gray area: who cares if your user loans doom 3 out to a friend? and more importantly- what hope do you have of enforcing this in any reasonable manner? It isn’t worth paying them to put that, and otehr equally silly, lines in, no matter if they are gray areas or even black and white issues. Say it’s fully binding that ACdeesee’s eula says you cant use it to look at porn. Great! Was that worth putting it in there? How actionable is it?

I wonder how much all these silly EULAs errode consumer interest in following any sort of ‘good behaviour’ as specified by publishers. There’s no give, only take, who can really be bothered?

Erm, 8am… hope that made sense.

Makes sense to me. One of the problems with America these days is the way that the sheer number of unenforced laws/rules/what-have-you that no one obeys tends to erode people’s respect for the laws that are important.

Whoa, take it easy there, killer. Nobody is “trying to do” anything other than have a conversation. I have no idea what you’re talking about here. I quoted one line from your response, in its entirety, and responded to it. I left it in context with my line that you were replying to. I’m not “connecting” any two parts of anything you said. If your point is that your line has nothing to do with my garage analogy, okay, although quoting my garage analogy and then putting your response right below it isn’t the best way of indicating that.

In any case, you and I can agree to disagree on how analogous it is. On the one hand you say they’re unrelated concepts and then in the next paragraph (and also in your original response) you’re saying that your “entire point” is that parking garages take the same ridiculous position that software makers do. I think it’s a reasonable analogy – in both cases a consumer has every right to feel that they’ve bought something, but the seller takes the position that all you’ve bought is a very limited license. In both cases the seller tacks on all sorts of restrictive language to their license (like “You can’t lend this to a friend or resell it”), in both cases those restrictions are routinely ignored by the buyer (most of whom don’t even bother to read them), and in both cases the seller never takes action to enforce their supposedly reserved right, and the overwhelming, overwhelming likelihood is that no such action would ever prevail.

Your point of, “Well sure, they are drafting overbearing language that they might use to try to sue you, but I’m sure they’ll never do it,” is fairly over the top. I have a hard time buying why it is wrong to be upset when people try to gain the right to hump you over, even if it’s unlikely that they will ever use that right.

Sorry to go all over the top on you, but my opinion remains that this is a silly thing for people to get upset about. Lots of companies do it, but the stuff is never enforced and almost certainly unenforceable. If you’re going to get pissed off at this stuff, you’re going to spend a lot of time railing against the injustices of software makers, parking garages, movie theaters, cell phone services, etc etc. I mean, heck, those “We reserve the right to refuse service to anyone” signs aren’t totally enforceable, either, since a restaurant can’t refuse to serve you based on race. I guess you should be wound up about those, too. Chiseling racists!

Out of curiosity, what makes you say that?

Whoa, take it easy there, killer. Nobody is “trying to do” anything other than have a conversation. I have no idea what you’re talking about here. I quoted one line from your response, in its entirety, and responded to it. I left it in context with my line that you were replying to. I’m not “connecting” any two parts of anything you said. If your point is that your line has nothing to do with my garage analogy, okay, although quoting my garage analogy and then putting your response right below it isn’t the best way of indicating that.[/quote]

You misunderstood. I simply noted that you responded to that one line you quoted with information on the garage analogy. They weren’t connected in my post, however.

Makes sense to me. One of the problems with America these days is the way that the sheer number of unenforced laws/rules/what-have-you that no one obeys tends to erode people’s respect for the laws that are important.[/quote]

4, Insightful.

Out of curiosity, what makes you say that?[/quote]

The fact that there is a decent amount of case law stating that shrink-wrap and click-wrap EULAs are enforceable. Therefore, when I see people say things like, “These EULAs aren’t enforceable,” or “I didn’t sign or agree to this, so it can’t be enforced against me,” I tend to take it with a legal grain of salt.

Everyone wants to be an amateur lawyer. :)

Is there? Last I poked around it looked like a couple of ambiguous decisions.

Not to mention that several of the points in this EULA are clearly unenforceable. You are explicitly allowed to resell something you own under the Doctrine of First Sale. You are allowed to make a backup copy under Fair Use.

There are. Whether or not they would apply in the particular context of Civilization IV and the ability to resell it or make backups may not be clear from those cases (but I also am not aware of any caselaw that has said, “Civ IV type software licenses are unenforceable”). Hence my point that it is a grey area, and people who say one way or another that click-wrap or shrink-wrap EULAs are clearly enforceable/unenforceable are likely talking out of their ass.

They may turn out to be right, but that is a different question than stating that it is a legal certainty.

So if they are talking out of their asses - where’s your cites?

Really? Has there been a case that has resolved the authority split caused by Davidson & Associates v. Internet Gateway Inc.? Which circuit? What’s the case?

I’d much prefer to see the cites of those making the assertion that they are unenforceable. Genuinely. I’m happy to learn more about the issue, so long as it doesn’t involve know-it-alls tossing out bombastic statements without support that no reasonable attorney (or scholar) would make. I’m not the one making the definitive assertion that they are or are not unenforceable; I don’t need to provide the cites. I’ve admitted that it is unclear whether they are enforceable. It’s hard to provide cites that something is unclear.

Nonetheless, fortunately for you, I threw a cite into a reply I was posting while you were apparently posting your response above. It’s below your post.

Now I’m more than willing to admit that some licenses may not be enforceable, due to issues of unconscionability of the particular provisions in such agreements. That, however, is a very situation specific area of the law that most lawyers will not bank on working unless they have clear precedent that almost exactly matches their specific case. That is why most attorneys (I believe) are very unlikely to tell you with respect to a given contract, “That contract is unenforceable due to unconscionability, and it will not hold up in a court.” It’s an argument, but one that by the nature of the legal doctrine you can rarely “guarantee” ahead of time as people seem to want to do here.