Jonnan001 - If I'm reading your post #236 correctly, the main reason you contend EULAs are nonbinding is that you must directly agree to the contract AND communicate that agreement to the other party. Is this a fair statement?

Second, how would you define an affirmative response, and how you would define communication in this context. Must a physical signature be applied to a paper contract with both parties (or their representatives) physically present? Are verbal contracts with witnesses and/or records valid? Is an electronic agreement similar in nature to a verbal agreement made over the phone?

Recently (as in, last week) I purchased WoW. I "signed" the EULA on Sunday, about 10:30 AM. During the registration and account set up, I transmitted my name, address, phone number, email address, and payment information as part of the same process which began with accepting the EULA/TOU. That personally identifying information, as well as the time and date at which I agreed to the EULA/TOU contracts, are permanently linked in Blizzard's records with the serial number of the copy of the game I purchased the license to. In what way does this process not constitute a provable acceptance to Blizzard's contract?

As to Blizzard never contending full ownership of all materials, bullshit. They entered the EULA containing the quoted text as part of their evidence, specifically as exhibit 21, in support of their statement of fact. While Blizzard never directly asserts ownership of each copy, they consistently assert that users purchase license to use the game, not a copy of the game itself.

And for your hope this gets overturned, you may well be right. In my estimation you are not; either way we'll see at the end of September/beginning of October.

The basics of an contract (Strictly speaking, the writing on the paper is the 'agreement'. The *contract* is the agreement, plus all legal responsibilities that are implied, i.e. your state may guarantee a warranty and such, fraud clause, et al. Close to, but not quite interchangeable):
Offer - Some one offers you a good or service
Acceptance - I choose to take them up on it
Mutual Assent - We've verified that both understood the terms we were agreeing too.
Capacity - I am an adult, not drugged, etcetera
Consideration - We exchanged goods, services, money et al
Legality - Nothing was agreed to in violation of the law.

Now, what we're talking about here is an either/or situation:
Either the EULA is bound up with the sales contract, when we pay the store to buy it over the counter, and accepted when we install,

Or the EULA is a separate contract, accepted separately when we install the software.

The problem is that under either of these, it has problems meeting the defintion of a contract.

It is only fair to note that the TOS when you sign up for an account may or may not have these issues - I'm arguing solely about the EULA included with the software - although the EULA being invalid probably impacts the TOS when you create a server account, that *is* actually a different contract, and probably a valid, or in large part valid contract under the UCC.

But, back to basics - if the EULA is a part of (modification of) the sales contract, the fact that you were informed of it when you bought it, but did not actually see it, may invalidate it as a contract, depending on the exact terms of the EULA, and whether you are an expert (merchant) or a non-expert (consumer) in the field. Under UCC 2, you *can* be bound by this kind of modification to the sales contract, but you actually have to be made fully aware of it at the time - you can't have mutual assent, if you are not aware of what you are assenting to.

Now - this is where a merchant and a consumer are judged differently (Remember, for UCC purposes, a 'merchant' is anyone that has expertise in the product being sold), because as an expert in the field, it is assumed that a merchant is aware of industry standard clauses despite having never seen the contract or read it. A farmer knows the contracts when he sells to the grain mill, the computer programmer knows the standard clauses on what is legal uses of a compiler.

So, for someone that works in that field to claim he's not bound by the EULA, he has to prove that it's trying to utilize a clause that's not normal, which is fairly hard to do - unless it's just a weird, out there clause, a photographer buying photoshop is probably bound buy the EULA, whether he read it or not.

That's not the case with a 'consumer - the consumer is presumed not to be an expert in 'industry standard clauses' - if he buys something with a modification to the sales contract, he's supposed to be informed at the time - before money changes hands, and he has to actually sign off on it - because he's not an expert, he's protected from agreeing to things without knowing what he agreed to.

So, if the EULA is a modification to the sales contract, it makes a lot of difference whether or not the UCC recognizes me as a merchant, or a consumer, and even whether or not the terms of the EULA are arguably 'standard' terms.

The other possibility is whether the EULA is a separate contract. There are two major problem with that. The first is that it is easier for either a consumer or a merchant to accept a sales contract, than for anyone to get locked into a formal, non-sales contract.

By design, UCC 2 streamlines the concept of a contract because who want's to bring a lawyer to buy a loaf of bread? They streamline it further between 'merchants' to allow for standard terms etcetera, so farmers can sell wheat to a silo without messing around with arguing everything out point for point.

So, is it's *not* a sales contract, there is a very big question about trying to prove Offer, Acceptance, and Mutual Assent - Some states require a Notary Public notarize the document. But that's actually not the biggest problem.

If it's a separate contract, where is the consideration? You can modify the sales contract without consideration being passed back and forth, but if this is a separate contract - then there has to be separate consideration, or it *can't* be a contract.

If I bought the CD, and I own the CD for purposes of making a copy, then I don't receive anything more from Blizzard for having accepted the EULA when I installed - I already had that right. They have to give me something above and beyond that, or they hove no more standing to sue me for using that product anymore than I can sue someone for failing to buy me a gift, even though they promised to do so.

So, if it's a sales contract, UCC 2 steps in and give me some protection, if it's not a sales contract, it's almost impossible to rule it as a valid contract at all.

And that's why I think this can and should be overturned - Jonnan

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.

@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?

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.

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.

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.

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

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

§ 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.

I don't think I quoted you out of context - I just responded point for point, but heck I quoted everything you typed man - {G}.


Short answer - That would be for a court to decide, weighing the two competing definitions against each other - Conceptually a professional photographer is probably *always* going to be a merchant for UCC purposes if he buys photoshop whether he's using it at home or the office - he has that "skill peculiar to the practices or goods involved in the transaction" counting against him.

But for a game? it seems to me to be a fairly rough standard to create a category for "skill peculiar to the practices or goods involved in the transaction" that's going to pull almost any gamer into the realms of "merchant" if it is bought for home use. I suppose your example there of a CEO would qualify, or a game reviewer, and you *might* be able to make that argument for a developer - arguably Jafo and Frogboy may be bound by EULA's even for games in ways that I am not, or anyone competing in gaming competitions where there is money at stake.

There's a legitimate argument for a judge to decide there - but if you're talking about a person, the default view is going to be to assume they're a consumer and to prove otherwise if you want to hold them to an EULA - for some people that will be easy to prove, for others the court will be annoyed that you wasted their time with this. But the lawyer trying to enforce the EULA will have to actually prove that the plaintiff is a merchant.

Jonnan

This merchant/consumer 'issue' is utter crap and meaningless in the extreme.

I eat...and I cook...ergo when I go to Macca's I'm a merchant, not a consumer?

As the English would say....'bollocks'.

Is this yet another case of the recently educated determining getting into/out of University means all is now known...on all topics?

You get this a lot.

The older you get the less you will realise you know.  One of the things you learn 'more' is the extent of your own ignorance.  I know I do...