EULAs: The game outside the game
What the heck is an EULA? In theory, it is an End User Licensing Agreement. A legally binding contract between you and the provider of a product and/or service to indicate the rights and protections each of you has. As a user of software, or as a user of virtual environments and MMOGs, you've seen and indicated your agreement to many of these.
Well, they're really kind of rubbish. Some sort of agreement of terms, rights and protections is clearly necessary, but these do not serve those purposes, for a number of reasons.
First and foremost, can any agreement be said to exist if you don't understand the text? Most EULAs are couched in legal terms that only give the appearance of being written in English. The actual phrasing may have a meaning in law that is different to what it means in English. If you don't know what those key phrases are and what they mean in the alternate reality of contract law, you can't be said to have understood it. Even if you think you did.
Secondly, they're too darn long. Did you even make it through to the end? Did you at least make it as far as the bit where you agreed that you'd pay for any costs to the company as a result of you bringing action against them? Or where you agreed to become Bill Gates' towel boy? You probably didn't. Even some lawyers don't read these through. How many of you will make it to the bottom of this article?
Did you even read the EULA at all? PC Pitstop offered people money in their EULA, just to see if anyone was reading it. One user out of three thousand actually did, and got the money. Statistically, you probably haven't read through a single EULA in your life. A few of you might have skimmed the EULA for your MMOG once -- but that's not the way to bet.
Are the various terms and conditions set out even enforceable? Perhaps not. An EULA that provides unbalanced protection or unbalanced requirements (the majority on one party) may not be. Indeed, if the requiring party only selectively complies or enforces EULA terms, they might be considered to have entered into the EULA in bad faith, potentially annulling all of the terms.
And EULAs are subject to change. Some operators require you to read the new version and agree whenever the terms of the agreement change. Unfortunately others require you to do so every time you start up the client or every time you log in.
Frankly, you aren't going to read more than 5,000 words of contract every time before you log in to your character. Seriously, you're not. You don't. I don't. Has that agreement changed in the last year? In the last six months? Did it change yesterday? How would you even know?
Can you really be said to have agreed to that, even though you clicked that you did? A judge might say yes. Your legal representative should request a jury trial.
As for myself, I've been accepted into two betas that I've not completed signing up for. Between them I have 20,000 words of EULAs to read and agree to. As a beta-user and (some might say) a games journalist, I've got something of an obligation to read them at least once before I click the happy little button that indicates that I've agreed to strip naked, paint half my body yellow, sit on a chocolate cake and post the images to Flickr -- or whatever the heck the terms actually are.
Our beloved colleagues over at the mothership, Joystiq, feel that the FTC will find regulation of EULAs for the purpose of consumer-protection a comparatively pressing matter within the next several years. They don't feel that consumers are really suffering from harm as a result of EULAs, and wonder if protection is really required, but for our money, EULAs are about rights and protections, and if we don't even know what they are, then from a practical standpoint, we can't be said (as customers and consumers) to actually have any.
Right now, no matter how warm and fuzzy the company running your MMOG is, or how great their support is, their EULA probably screams "screw you". In your face. That is -- if you even read it at all.
