End User License Agreement to Kill
Battlefield 3 is being release tomorrow (in the US of A, the rest of us have to wait until Thursday), and it’s without doubt the most anticipated release so far this year. EA and DICE have done a great job feeding us with videos for a couple of months now and there even was a public beta of the game. If you have no idea what the fuss is all about, maybe this will help:
Not convinced yet?
Without doubt the greatest graphics you’ve every seen in a computer game. Everything is of course captured on a state-of-the-art PC, but still. Personally, I didn’t try the public beta, and I probably won’t buy the game either: The reviewers are reporting a very short single player campaign and my two-year old computer is barely within the minimum requirements for running Battlefield 3.
But even if I won’t buy the game (at least not before it’s available at a discount because Battlefield 4 is about to be released) an interesting aspect of the new internet based computer game ecosystem has surfaced with the release of Battlefield 3: Digital copies and license agreements. BF3 will not be available on Steam, digital copies will only sold through EA’s own digital platform, Origin. When this was revealed by EA, people started to look at the Origin license agreement and discovered that the Origin client would call home, telling EA what kind of software you had installed on you computer. This, of course, created some commotion, but the more great BF3 videos EA released, the more people forgot about the license agreement and instead started to ask if they could please to throw their money at them instead.
Still, license agreements are interesting. You never read them, but there are some incredible things you agree to. It’s easy to pick on EA, because they have messed up good in the past, for instance with the introduction of SecuROM. Valve, on the other hand, has, with their Steam digital service, always been considered the good guys of the industry. They surely don’t have any evil clauses in the license agreement i blindly agreed to a few years back. Right? I decided to compare the Origin and Steam license agreements to see how different they really are.
Valve’s Steam Subscriber Agreement is pretty straight forwards, with little lawyer-speak. The first thing that strikes me as interesting is this part of section 2A, License Terms:
Steam and your Subscription(s) require the automatic download and installation of software and other content and updates onto your computer (“Software”). […] Valve hereby grants, and you accept, a limited, terminable, non-exclusive license and right to use the Software for your personal use in accordance with this Agreement and the Subscription Terms. The Software is licensed, not sold. Your license confers no title or ownership in the Software.
If I interpret this correctly, and it’s pretty clear-cut, a game you buy and download is considered “software” and you don’t actually get ownership of the game that is being stored on your hard drive. You are only buying a license to play the game. So, in theory, Valve can revoke this license and you won’t be able to play the game. This makes me miss the good old days when you got the game on some form of physical medium and there was no online registration or always-on requirements.
The license part is also mentioned in section 2D, Ownership:
All title, ownership rights and intellectual property rights in and to the Software and any and all copies thereof are owned by Valve and/or its licensors. All rights reserved, except as expressly stated herein. The Software is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. The Software contains certain licensed materials and Valve’s licensors may protect their rights in the event of any violation of this Agreement.
Apart from this, I really don’t find anything really interesting in the user agreement, except in section 5, ONLINE CONDUCT, CHEATING AND ILLEGAL BEHAVIOR:
Steam and the Software may include functionality designed to identify software or hardware processes or functionality that may give a player an unfair competitive advantage when playing multiplayer versions of any Software, other Valve products, or modifications thereof (“Cheats”).
In short, Steam and the software (the games) will be monitoring applications installed on your computer and your hardware to figure out if you’re a cheating son of a bitch or not. This is borderline in terms of privacy, but necessary to prevent people from shooting you in the head through walls from a million miles away and similar no-nos.
The Origin End User License Agreement is also not that hard to read, with little lawyer jargon. The EULA starts out interesting pretty early, with section 1C, License Validation:
The Application and an internet connection are required to validate the license for certain products distributed by EA. You acknowledge and agree that the Application can automatically validate license rights for some or all EA products without separate notice to you. This means that in order to use the Application and certain EA products, you must leave the Application installed on your computer. You acknowledge and agree that the Application may use information regarding your computer, hardware, media, software and your use of the Application to validate your license rights and to update the Application.
This is basically an always-on requirement. You have to have an internet connection so that EA can check your license at any time without notifying you. If your ISP is down for some reason, you might not be allowed to play a game, even if it’s single player only.
There is also a clause that is very similar to Valve’s “you don’t actually own the game you buy”-paragraph. 1E, Reservation of Rights and Restrictions:
The Application is licensed, and not sold, to you for use only under the terms of this License. Except as expressly licensed to you herein, EA reserves all right, title and interest in the Application and all software delivered through the Application (including all characters, storyline, images, photographs, animations, video, music, text), and all associated copyrights, trademarks, and other intellectual property rights therein.
I didn’t read the first version of the EULA, (the version that created all the interweb-boycott-evil-EA-talk) but I’m pretty sure that particular clause has been rewritten in the version I’ve been reading. Section 2 covers this, and it’s written so straight forward it’s not possible to get it wrong. From section 2, Consent to Collection and Use of Data:
In addition to information that you give EA directly, EA collects non-personally identifiable (or anonymous) information for purposes of improving our products and services, providing services to you, facilitating the provision of software updates, dynamically served content and product support as well as communicating with you. The non-personally identifiable information that EA collects includes technical and related information that identifies your computer (including the Internet Protocol Address) and operating system, as well as information about your Application usage (including but not limited to successful installation and/or removal), software, software usage and peripheral hardware.
As long as it’s “non-personally identifiable information”, I guess I’m OK with it, even if I don’t really see how EA knowing that people have, say, GIMP installed will improve their products and services.
If you don’t reside in Quebec, Russia, Switzerland and the Member States of the European Union, the Origin EULA gets really interesting in chapter 17, Dispute Resolution By Binding Arbitration, section A:
By entering into this Agreement, you and EA expressly waive the right to a trial by jury or to participate in a class action.
Americans really love their class action lawsuit. But not with this license agreement, as you effectively waive your right to gather a few friends and take EA to court if you install Origin. And it doesn’t stop there. EA effectively stops you from participating in any class action lawsuit in the future (even after the license agreement between you and EA has been terminated) and any class action lawsuit that might arise from issues that occurred even before you agreed to this particular license:
This agreement is intended to be interpreted broadly. It covers any and all disputes between us (“Disputes”), including without limitation: (a) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (b) claims that arose before this Agreement or any prior agreement (including, but not limited to, claims relating to advertising); (c) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (d) claims that may arise after the termination of this Agreement.
Wow. That’s pretty hard core. Chapter 17 is, in its entirety, devoted to defining how disputes between you and EA should be resolved. This chapter make up the bulk of the license agreement, so EA is really going all in to cover its ass. As far I can tell - but I might be wrong on this one - Section A is the only section that explicitly excludes Quebec, Russia, Switzerland and the Member States of the European Union; the rest of the chapter also covers these regions. By agreeing to the license, you say it’s OK that you and EA resolve all disputes out of court. From chapter 17, section C, Binding Arbitration:
YOU UNDERSTAND THAT BY THIS PROVISION, YOU AND EA FOREGO THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
In addition to the class action waiver, EA also stops you from ganging up on them in section D, Restrictions:
YOU AND EA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EA agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
The obvious incentive for this that settling disputes cost money, and if there are no people there to split the bill, few people will have the money to pay for a lawyer.
So, there you have it. Unless you plan to take EA to court or piggyback on a class action lawsuit, there is nothing in the Valve and Origin license agreements that should scare anyone away from enjoy great games. But keep in mind that you don’t own the games you have paid for. If Valve or EA decides that you for some reason is violating the license agreement, they can easily pull the plug on you.
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