Modern Times...
Welcome to today, where people often blame others for their own problems. AND GET AWAY WITH IT!!!!
Game-addicted man scores rare win over software lawyers
A Hawaii man who sued a company over his crippling addiction to the computer game Lineage II has gone where few litigants have managed to go, defeating the end-user agreement that said he had no right to bring the case to begin with. Craig Smallwood sued Lineage II maker NC Interactive late last year, claiming that his …
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Tuesday 31st August 2010 20:09 GMT Parsifal
Err What?
"It's always encouraging to see a decision that smacks a mighty Goliath, though one can't help regretting that this one seems to favor a David who, by his own admission, is no longer able to dress, bathe, or communicate with family and friends as a direct result of his use of Lineage II.
He did however find time to engage a lawyer and file what appears to be a frivolous law suite. Whats next a law suit because people have become addicted to watching avatar?
(BTW 20,000 hours is 833 days did none of hist family notice this?)
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Tuesday 31st August 2010 21:27 GMT Tony Kammerer
less than 50% playtime
Lineage 2 launched in the USA April 27, 2004 so in 6 years he played the game less than half the day (on average). There are players who play an MMO 16-18 hours a day every day for 5 years and they haven't sued the makers. They (just like this loser) choose to do so instead of living life and should be held responsible for their own decisions.
Seems like this guys problems with the game are based on getting banned from it.
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Tuesday 31st August 2010 21:28 GMT Jean-Luc
didn't think I could cheer for an EULA
What a crock. How is this different from any compulsive behavior, such as alcoholism? After say 1000, not 20000, hours of playing the game, might he not have noticed on his own that he had a problem? LOOOOOSER.
Throw this bum out of court!
But don't use that to set a precedent that bolsters the general validity of EULAs.
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Tuesday 31st August 2010 21:28 GMT Anonymous Coward
On licensing
These EULAs are the way they are simply because as a software company you make your money selling lots and lots of copies for each far less than creating the first copy cost. That and because computer systems are so horribly complex in components and layers, not to mention ownership and therefore responsibility. Even within a universe of fairly uniform environments (or because of that uniformness, qv sloppy coding, shoddy hardware design, etc.) enough variation to be unable to guarantee function nevermind fitness for purpose.
In addition, as here, people in sue-happy-stan like to sue (and juries have a track record of granting or "awarding") for things that the defendant has effectively no control over. The guy has a personal responsibility and if he can sue he could've sought professional help earlier on.
Now, this is one extreme and unsatisfactory for the end user. A logical alternative is to do as the Germans do: Selling an apparatus requires an Engineer With Diploma ("Dipl. Eng.") to sign off on the design, and that signature implies that he can personally be sued if the device causes harm and it can be proven this was due to design failures. However, to do that in the software world has obvious problems. Simply because, beyond correctly determining which components are faulty and establishing ownership and thus reponsibility, judges are versed in law, not in logic, and juries are randomly selected common people, not "peers" as I'd expect the term when discussing software.
Still and all, now that this can go forth, I'd love to see proof that this game was made deliberately addictive and geared toward controlling users' actions. In general (and show other people with an addiction to it, please), or specifically targeted at this "victim".
If someone compulsively spends his life savings on slot machines, is it the slot machine vendor that is at fault? The casino? Who then?
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Tuesday 31st August 2010 22:33 GMT Anonymous Coward
correlation and causality
kinda like how some people (apparently not fully developed adult brains) are more susceptible to getting mental issues from smoking dope.
I enjoyed COD - Modern Warfare, but i can't spend more than a few hours playing and then not for days at a time, i got to do stuff like go to work!..but that doesn't mean that somebody else might not get intensely addicted to it.
Maybe the developer should program in a level where nothing happens and you reach it and get a message saying your character is sitting in a hotel for 10 hours while the user is instructed to go outside (why dont you style!).
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Tuesday 31st August 2010 22:56 GMT Anonymous Coward
Software
Maybe the developer should focus on making the game more immersive, balanced and bug-free, than freelance hypothetical solutions to the plethora of psychological disabilities. Anyone who argues for more responsibility from developers isn't one, and is seeing the word as "those rich IT crooks have done it again". The reality is that it's really hard to write good code, which in turn makes games expensive enough to produce as is.
So I would really hate solutions that force the player to go outside. What's there that's so great? Besides, wouldn't you get sued for getting the user addicted to tree hugging anyway?
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Tuesday 31st August 2010 23:38 GMT david wilson
Not sure it's a victory for the 'addict'
I thought that it wasn't unknown for people to occasionally be allowed to take hopeless lawsuits further just so they can get comprehensively stamped on, and have precedents set for the future.
It's pretty hard to see how people could be adequately warned they /might/ get obsessed by a particular game.
Presumably the people who should pay most attention to such warnings are people with latent obsessive tendencies or other mental health issues.
What kinds of warning could possibly put such people off, if they don't even know themselves that they might be vulnerable?
Wouldn't any kind of warning "This game could take over your life" tend to come more as hype and advertising, rather than a real warning?
Should cars come plastered in warnings that they could be dangerous to people with a /potential/ obsession for driving at excessive speed?
Seems likely either the case will fail, or that if it succeeds, it'll end up losing on appeal.
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Wednesday 1st September 2010 02:17 GMT Anonymous Coward
Man...
I'm glad I turned away from the game when they started charging for it. I was coaxed into joining by my cousins during the free beta. After getting creamed up by greifers a few times (this IS the Asia server after all) I decided that it was my best interest to quit if they start charging access fees instead going deeper into it. It didn't take too long for that to happen.
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Wednesday 1st September 2010 02:18 GMT TimeMaster T
Wow!
Its incredible the number of comments from people who seem to have TOTALLY missed the point of the article.
To wit; an EULA that strips a consumer of their right for seek redress (even if it is a dodgy claim) in their own jurisdiction for software that has harmed them, real or imagined, has been found to be invalid.
Which also opens up for challenge the other limitations that most EULA impose, like absolving the provider of the software from liability when their defective software crashes and costs the customer money because of it.
At least that is what I got from article.
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Wednesday 1st September 2010 03:01 GMT Ian Michael Gumby
Spot on!
Yes this was a good article in that the courts agreed that you can't sign away your rights on a shrink wrap EULA. That an unenforceable clause is still an unenforceable clause.
As to the potential for success of this case?
IMHO snow balls chance in hell. But its going to cost the company probably 10-20K to get the case tossed.
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Wednesday 1st September 2010 09:45 GMT Anonymous Coward
You have to go to court to prove it
Yep. That's the way they do it in the USA. Someone files a case against you stating: "Flibberty flabberty flobberty floo. You owe me ten million dollars." You then have to pay out several thousand dollars in legal costs to have the case thrown out or else you lose by default. It's very profitable for the lawyers.
Other countries are a bit more sensible about this sort of thing, but then other countries have a smaller number of lawyers to support as a proportion of the total population (and as a proportion of the productive part of the population).
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Wednesday 1st September 2010 09:05 GMT Chris Green
EULA's are in effect, theft
Is the EULA on the outside of the packaging and in a font that's large enough to read?
Is it short and snappy, written in plain language to promote understanding?
Is there a complete money back guarantee, should the purchaser find the EULA unacceptable?
Does the money back, include all costs incurred, such as translation costs from a contract lawyer?
NO?
It's bollocks then and should be ignored, even if the case IS a stupid legal money grab stunt!
That decision comes later...I hope.
One up for the people versus corporate lawyers.
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Wednesday 1st September 2010 11:28 GMT Graham Marsden
See the Unfair Contract Terms Act for details:
11 The “reasonableness” test
(1)In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the M1 Misrepresentation Act 1967 and section 3 of the M2 Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
http://www.opsi.gov.uk/revisedstatutes/acts/ukpga/1977/cukpga_19770050_en_1
As mentioned by AC, the contract is made when a price is agreed and money is exchanged. Unless the EULA forms part of that it is not "reasonably to have been, known to or in the contemplation of the parties when the contract was made."
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Wednesday 1st September 2010 13:06 GMT Anonymous Coward
Are you sure about this?
All modern games that I've bought have it clearly written on the box "Acceptance of EULA required to play. EULA can be found at <url>". Furthermore, given that every game now has an EULA, could it not be argued that it is reasonable to expect this to be a requirement if the person being sued has played any significant quantity of games?
So at point of agreement you are well aware that you need to accept the EULA to play it. You have access to the EULA if you wish to read it, and I'm sure if you requested it in written form and provided a SAE the company would send you it.
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Wednesday 1st September 2010 15:34 GMT Graham Marsden
Yes, I'm sure...
... (even though IANAL) because my contract is with the *retailer* not with the company who makes the game (this is why, if something breaks then, under the Sale of Goods Act, I can go back to the person who sold it to me for redress and not be fobbed off with "it's not our problem, talk to the manufacturer").
Now if the retailer were to say to me "We cannot sell this item to you unless you agree to this EULA here and now" they might have a case, but not otherwise.
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Wednesday 1st September 2010 09:14 GMT John Smith 19
It's the EULA that should be on trial.
I *cannot* believe you can write a clause like that in *any* contract.
How would people feel about the following.
"Purchase of this product permits the seller to visit the buyer at random intervals, enter their place of work or home, and beat them senseless for a period of not more than 1 hour without any form of legal, verbal or physical complaint"*
Would any *sane* member of the public sign up for this?
It's about time software companies stopped with this get-out-of-jail-free-card.
Software *is* complex. Some of it does stuff which is life threatening if it fails. This level of use-at-owners-risk applies to everything from games to ERP systems whose failure can (and I'm quite sure *has) bankrupted whole companies.
People might have paid more attention if it had been picked up through Outlaw.
*Yes he sounds like a completely dysfunctional human being of the kind who would listen to a Black Sabbath record backwards to hear a message from the devil, take a shotgun to his best friend and then fire at himself and miss. However that's a court decision. The up front signing away of *any* rights to protest about a piece of software *because* it's a piece of software and not say a car needs to end.
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Wednesday 1st September 2010 13:24 GMT Loyal Commenter
Here is the point of the 'no responsibility for consequences of failure' clause:
If you are writing software which is intended for use in a situation where failure would be a critical consequence, then you have your software certified, and it costs the consumer more as a result. if you aren't writing it for this purpose, then the consumer should not expect it to function in such a way without paying for it - that sort of defensive programming, and testing can cost a LOT of money! In these cases, it is quite reasonable for the provider of the software to state that they will not be liable for any losses or damages as a result of a software failure in a situation where it is being used outside of its intended use. On the other hand, if it IS designed for such use, such a clause has no place in the EULA.
IANAL, etc...
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Wednesday 1st September 2010 09:15 GMT bitmap animal
A good game then?
He is suing them because he thinks it is such a good game he played it too much! That is bonkers, no other way I can think of it.
Regarding the EULA, if developers/publishers were liable for everything that users felt was a consequence of a problem with the software then there would be nothing written because the potential cost risks would be much higher than any income they could generate. There would also be the amount of time fighting “you software didn't save the document so I missed out on xxxx”where there would difficulties proving it wasn't user error.
Open season against the software industry – not good.
Re correlation and causality @ 22:33
That would backfire, software industry enforcing nanny state, stopping gamers play when they wanted to. That would also encourage people to start using hacks to skip those levels and that is a slippery slope to spoiling gameplay.
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Wednesday 1st September 2010 09:40 GMT 32holes
uhhh.......
What i got from this article was that just because you sign an EULA does not mean you sign away your rights to sue even if it explicitly says so in the EULA. Everything else in that article is irrelevant.
This is a good thing as we all know that EULA are solely geared towards the makers no matter what.
I still have this thought in my head that anything you write in MS Word belongs to MS.
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Wednesday 1st September 2010 09:45 GMT Jason Bloomberg
Personality Disorders
Seems most here think personality disorders are just tough luck, something to be mocked - but what about duty of care?
If I tell someone easily led to jump of a cliff and they do, is it their fault or am I culpable?
If nothing else, simply labelling them "wankers" and similar, like cheering for gene pool thinning, it shows a complete lack of compassion for others who are victims of their disorders and never asked for them. Remember, all you 'heartless bastards', "there but for the grace of god go I".
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Wednesday 1st September 2010 19:26 GMT david wilson
@Jason Bloomberg
>>"If I tell someone easily led to jump of a cliff and they do, is it their fault or am I culpable?"
The simple answer is 'yes'
The more complex answer is that it isn't an 'or' question.
If I have an argument with someone who is in a vulnerable state, and they later self-harm or commit suicide, I might feel any amount of /fractional/ blame, depending on how much I knew about their mental state, and how generally justified what I said was - if someone really had been acting like an arsehole, I wouldn't reckon that they necessarily deserved a total free pass as a result of claiming or exhibiting some degree of vulnerability.
Likewise, if they were someone who looked likely to do something sooner or later anyway, possibly being part of the cause for them doing it a bit sooner might feel less awful than triggering something in someone who was only transiently unstable.
While people might have some hope that other people would show them some consideration, no-one has the right to demand total consideration from anyone else, whatever they threaten to do if they don't get it, not least because everyone else has varying issues of their own to deal with.
If someone is actually unable to make sensible choices for themselves (such as whether to just carry on playing a game), I'd wonder to what extent a manufacturer could guard against such a person buying one of their products.
Though it would be an understatement to say I'm probably not typical NRA member material, even I wouldn't claim that a gun manufacturer is under a great moral obligation to stick labels on their products warning about buying/using them when unstable or angry, not least due to such action likely being futile.
To the extent anything could be done to restrict purchase to suitable people, that seems like a retailer responsibility.
How a games retailer is meant to draw a line between the possibly-obsessive and the stereotyped games player, I really couldn't say.
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Wednesday 1st September 2010 09:47 GMT Pascal Monett
EULAs are no good anyway
An EULA is nothing but a long-winded legalese-speak version of "we're not liable for anything fuck off".
An EULA is certainly not an AGREEMENT - there is no record of what I agreed to and there is no fixed version of a EULA for me to sign and for the publisher to sign.
No signature = no agreement.
On top of that, because of piracy and the rabid knee-jerk reaction to it, I cannot bring back a game or application that I bought and opened because stores all over say that, once opened, they do not accept returns. So I pay good money to get screwed if anything at all goes wrong.
I really fail to see how this totally illegal mafia-style racket came into being defended by courts.
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Wednesday 1st September 2010 11:28 GMT Boris the Cockroach
You'll find
that sort of situation is covered by the sale of goods act.
The product must be of merchentile quality or something, so if you open the box, install the software, and find it does'nt work, you are entitled to either a refund or another copy.
And yes, I've been there with a scratched disc when I bought halflife from PC world many years ago.
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Wednesday 1st September 2010 13:24 GMT Loyal Commenter
Here's the thing though,
He HASN'T won anything in court, except for the right to have his case considered. I'd offer you good odds that once it is heard, it is thrown out and he ends up paying costs. The upshot of this is only that EULAs that contain 'you can't sue us' or similar are considered invalid in Texas, as well they should be. In the UK, AFAIK, this sort of thing is explicitly covered by contract law, which says that unfair terms in contracts are invalid, including those which would remove statutory rights (such as the right to sue), or ones which would require you to commit a criminal act, such as murder.
Again, I should point out that IANAL...
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