The primary one being no one would agree to them if they had to before hand.

I'd love to know where you're finding all this wonderful information. Reading EULA's before purchase for EA games takes some work, and they are the only company that even mentions them on any of the boxes I have sitting around. Perhaps you're looking at corporate software instead of game cases? The Spore EULA is displayed nowhere, to get the Creature Creator EULA, you have to check the manual, to get the manual, you have to buy the game and get it out of the box, or download it through their download manager.

EULA's are hardly standard in any case. For something to be standard, it has to be standard. EULA's encompass everything from basic copyright notification and listings of rights that they choose not to reserve to make your use of the software easier, to shit like EA is pulling these days, termination clauses stating that you lose the right to use the software at their whim without any violations on your part. Regardless, the law is crystal clear on the matter, some asshole making an obviously wrong interpretation doesn't make it true.

The judges are making illegal rulings. Your refusal to accept it simply makes you as dishonest as most of the population is. The legislature and judiciary are separate for a reason, judges enforcing illegal contracts are just more pond scum that need removed.

And that's where you're not getting it - for a 'consumer' to have to read the fine print of something he's not an expert in is exactly what the consumer/merchant distinction in UCC2 is supposed, is literally designed to avoid. I mean think about it - I've studied copyright law, as I presume you have, and we can disagree rather vehemently on what something like "Owner of a copy" provision on copyright law means - whether or not it's feasible for that provision to even be circumvented by an EULA.

That's two intelligent and informed people. Mutual Assent means confirming that people understand what they're signing - think about the amount of paperwork you had to go through last time you signed for a loan, all the places you had to assert that "Yes - I understand I have to pay this back, Yes they are charging interest, Yes they can have my first born child . . .".

Those are the streamlined, simplified, made easy so people don't have to hire lawyers extra special contracts, as implemented under UCC Title 2, between merchants and consumers.

When you talk about that high bar not meeting the reasonable man standard - That's *not* the reasonable man standard Will - what you're seeing as a high bar is the 'contracts for dummies' standard.

Jonnan

@240 (sorry I'm a bit late...)

Hmmmm so if I buy the game at amazon I should read the box first in the shop around the corner?

One question that comes to mind here - Blizzard is NOT selling you the software when you buy the box.  Otherwise, they would have to charge for the client when making it available through their own resources.  And they do NOT sell the client.  You can go and download the client now, with out paying a dime.  And w/o actually agreeing to anything.  What Blizzard is SELLING is access to their servers.  When you purchase the box, you purchase the access license associated with the key code contained in the box.  Similarly, if you purchase the license directly from Blizzard, you're charged a fee.  It is a seperate transaction from gaining access to the client software.

MDY's Glider program modifies how the client interacts with the server.  Thus, violating the portion of the license agreement that stipulates that they won't do that.

Also, one (minor) tidbit that weighs in Blizzard's favor vs MDY - this entire suit was brought as a COUNTERsuit to MDY's suing Blizzard for enforcing the license agreement that MDY's customers were knowingly and willingly violating.

Chaos, is it really that difficult?

You go to the store, you buy an item, the item is yours. It's final, that's the nature of a sale. The only things that can be done are allowances. You can allow the store to return your money in a recall. The store can allow you to return an item that you can't use or doesn't work. The store cannot call you up and demand that you give it back. The people that sell through the store can't either. You can give something away without any compensation, but you are not allowed to take, it's fraud.

Software companies think themselves special, and idiot judges are agreeing with them. Blizzard can claim whatever the hell they want to, but they are selling the client in those boxes, period. Jonnan has explained it in detail, given all the relevant law on the matter, and still it's not clear?

Apply your idiocy to any other product you buy in a store, that the manufacturer can claim they are selling you a license to use it with terms unknown to you at purchase. Just try to convince yourself that is in any way fair or legal.

Your claim that because they give away trials, they aren't selling the software is honestly the dumbest thing I've seen in this thread. That's saying something. Retail products are given away as samples around the world, how fucked do you have to be for that to mean they aren't selling the products when you buy them?

Also, you have no question in your entire post.

Awake, I have yet to see a game box list the license. Very few even mention the existence of one. WOW included, I was at wally world a couple days ago and checked out of curiosity since the retards keep using it as an example.

psychoak - You are either the biggest liar in this topic, or an idiot.



I can't speak for exactly what games you have sitting around, but I see a couple problems there. If you're looking at game cases, it's not surprising you haven't found any warnings. Warnings would generally be on the original packaging only. Of the games I still have the original packaging for, only one does not have a warning of an EULA, or at least a Terms of Use agreements.

Specifically, Diablo II says "The use of this software product is subject to the enclosed End User License Agreement. You must accept the End User License Agreement before you can use this product. use of Battle.net is subject to the acceptance of the Battle.net Terms of Use Agreement."

Vanguard: Saga of Heroes says "Installation and play subject to Vanguard; Saga of Heroes User Agreement and software license available at www.joinvanguard.com and inside.

Hellgate: London, Final Fantasy XI, Command & Conquer 3: Tiberium Wars, and Command & Conquer: Generals all have similar notices. The only game that has absolutely no warning is my collector's edition of Galactic Civilizations II - but I'm not entirely sure that what I have was the outside packaging.



Either you didn't try, or are lying. The warning on the battlechest edition is located on the bottom panel of the box, in a white box with black type. This is the same location and presentation as the system requirements notice.

I have a couple issues with that. First, if this is a valid distinction, why did MDY not attempt to defend themselves in this way. Their lawyers all (presumably) have law degrees, while neither of us do. If it could occur to you, and is such a knock-out blow to Blizzard's case, why not use it? I'll be the first to admit that this is not a definitive answer to this point, but it bears thinking on.

Second, I use my current apartment rental agreement as example. As I remember, I only had to sign the lease in a couple of places, not at every term being placed on my rental of the unit. Does your interpretation, based on my status as 'consumer' rather than 'merchant', exempt me from the clause that prevents me from doing automotive repair work in their parking lot? I'm not a professional renter of anything and I didn't specifically acknowledge that term in the lease agreement, so they can't enforce this, right? By the agreement I signed, simply changing a tail light could be eviction-worthy. At least on the second or third offense.

Most importantly, to me at least, is why the Wall Data case has not been overturned. As with the MDY case, no distinction between merchant or consumer was made. As with the MDY case, the transaction was ruled a license, not a purchase. This ruling is more than two years old now. Why has the full circuit court not overturned these foolish judges (three of them, none involved in the MDY decision)? Why no Supreme Court decision? Again, not a rigorous disproving of your case, but nonetheless worthy of consideration.

Those are all EA games with the exception of FFXI, which is Sony. Thanks for listing a whole two publishers, one of which I already gave as an example of one of the few that does. Perhaps next time you decide to call me a liar, you could sample a slightly larger variety first? I have original retail covers from six different publishers, I've looked at probably every major and minor publisher currently in existence at one point or another. I have never seen the license displayed. A warning is not the license. Saying there is one doesn't cut it. This has been explained repeatedly, clearly, and irrefutably.

Your rental contract comparison is outstanding material. Rewrite history. They gave you the signature page, and then showed you the rest of the contract after you signed it and gave them your deposit. Get the picture?

Edit: Kaos, read through again, you're completely out of context.

Blizzard (WoW, D2) is not an EA company. Nor is Square Enix (FFXI). Stardock (Galciv II), nope, not an EA company. So I gave 5 companies, not two.

My lease is meant as a counterargument for Jonnan's contract law in general, not specifically EULAs. If you want a contract that DOES do all of that, look at the residence hall contracts for a university. What you described is exactly what happens.

Then you listed games from a whopping three publishers to support your point outside the already been mentioned in every post for the last several pages WOW. Congratulations on your widely diverse list.

I signed a residence hall contract. I was given the terms with the information material months before I payed. When I payed, I signed the contract, terms and all, before I got to pay. If you didn't, your university was breaking the law and vulnerable to suite for enforcing contract terms. Not surprising, the government affiliated public universities are the only ones more likely to be filled with inept morons that can't read english than the private ones are. The feds can't even figure out that their tax forms are invalid.

Well, first of all, remember, these protections only apply to consumers - as soon as you're an expert that makes money using this software, that consumer protection is diminished or gone, so it's not going to be an issue - Correct me if I'm wrong but that "Wall Data" case involved a company IIRC, so they are by definition not consumers buying a product for household use. Any standard clauses will apply even if they never read the EULA/contract, and if they actually signed off on it upon receipt, anything they might dispute is out the window.

Other than that, when the defendent is a consumer? I confess, my suspicion is simply overspecialized lawyers that think in terms of copyright, civil rights, or federal law rather than the simple UCC case - on those occasions where the issue has been consumers and the UCC has been brought up, people tend to win - that's the entire Raison d'être for UCITA - software companies wanted to make sure people were bound by EULA's, but fortunately only Virginia and Maryland were foolish enough to sign on to that.

As for the 'example' of your apartment lease - I guess I'm really confused why you think of that as a counterexample? Because I consider it a good example of the UCC 2 merchant to consumer contract - like the loans, you were (I presume) allowed to sit down, read through it, you signed at the end, they may actually have had you initial at specific points to verify you read certain paragraphs. So yeah - that's an example of the kind of contract a merchant has to set up to be sure that a consumer can't claim he didn't understand what he was signing - and management companies *still* lose tenant lawsuits because they were lax.

If they took your money, let you move in, and then came by with your contract a week later saying you had to sign or they were going to throw you out, *then* you would have an example of the exact situation UCC 2 protects you from - under UCC as a consumer you couldn't be forced to accept a contract after the fact that way.

So yeah, (Assuming nothing weird) you're bound by your lease - but your lease has been done in a completely different manner than an EULA, so it's an apples to oranges comparison. If you ever find yourself bound to a lease you never saw buying a box of crackerjacks, then you should probably contest that as not complying to UCC, but that's a lot closer to an EULA than I suspect your lease is.

Jonnan

If using the product to make money disqualifies one for "consumer" status, Blizzard is covered. MDY was certainly making money off Blizzard's software, and one of the selling points of the Glider program was to help get its users into Real Money Trading schemes - selling game assets for real money. Certainly not *all* glider users were into RMT, but enough of them were to make it a type of cottage industry. Would Glider then count as a type of software used in a home buisiness?

The distinction between merchant and consumer is pretty idiotic at the individual level. If I buy a copy of Quicken for my personal use, I qualify as a consumer. But if I buy a second copy a week later to use in my business, I'm magically a merchant, despite having gained no new knowledge in between?

In the Wall Data case, I agree they would fall into the merchant catergory - anyone using 6000 copies of software would qualify. But why was this distinction not brought up by either side? More importantly, does a person still count as an expert if they work in IT and make that big of a blunder?

It's feasible that Blizzard could have a case to make regarding whether Glider clients, specifically, were using it to make money as professionals, thus qualifying as merchants under UCC. I think that's an awfully weak case, but it would at least be a valid argument. Since they didn't make it in the original arguments, it doesn't matter - the judge can only take into account the arguments they actually make, not the arguments he *thinks* they should have made.

Yet - you just made the distinction needed - home and personal use, versus business use. Yes Gentleman, he can be taught -{G}!

Seriously - looking at the definitions:

and


it's not a laser thin demarcation - there might be enough grey between "Household use" and "skill peculiar to the practices or goods involved" for a small businessmen to qualify as a consumer in circumstances where the product isn't in their core business, i.e. a mechanic that bought Quicken for their business might still qualify as a consumer for UCC purposes. But that actually *is* an issue where individual courts can reasonably disagree depending on the details of a specific case.

But there's not *that* much grey area - certainly if you're large enough to have someone that does the accounting and is a CPA, (s)he is authorized to spend business funds to buy software, and *they* bought software, then the business is going to be held to the EULA as a merchant.

So yeah, that's the gist of it.


Umm - why would it get brought up? I mean, we disagree on whether the sky is blue at any given moment and we both agree that it's not really up for question whether or not 6,000 licenses qualify as business use is it? Unless you think the Judge is more extreme than the two of us at our worst put together or you're hoping (s)he will keel over laughing, not really worth wasting time on really - {G}.

And that *is* worth remembering - outside the game market 90+% of these EULA cases *are* going to qualify as merchants, not consumers, so most of the time these EULA's are going to be legitimately upheld unless the agreement actually says something unconscionable.

Jonnan

Way to quote me out of context. I am well aware of the plain-text reading of the definitions, I was pointing out that they are completely meaningless in some situations.

For example, the definition of consumer does not take into account the definition of merchant, and vice versa. If the CEO of EA bought a copy of WoW, he would simultaneously qualify as a consumer and a merchant. Which catergory should he fall into with regard to the enforcablity of the EULA?

How many of the Glider users would also fall into both catergories? They may not be using Glider commercially, but their day job might make them merchants under § 2-104. Should they be individually questioned as to their status, then the number of charges against MDY ajusted accordingly?

§ 2-104. Definitions: "Merchant"; "Between Merchants"; "Financing Agency".

(1) "Merchant" means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

WWW Link

As far as I can tell, you are either a merchant or not a merchant, based on whether you fit the above definition. I didn't see a definition for 'consumer' or anything like that.