The Fine Print

I’m sick of end user license agreements. A few weeks back, I excitedly popped DC Universe Online into my PS3, looking forward to diving into some superhero craziness with a few of my buddies here at GI. What’s the first thing that greets me? A legal contract that would put my house mortgage to shame.

What are these things, anyway? Terms of service contracts are a legal agreement between you and the company that makes or sells the game or product you’re using. You see them most commonly with games that have an online component. They tend to set up a lopsided structure that favors the company’s rights over yours and helps assure that you will not use the software in a way they don’t want you to.

I get it. Companies need to protect their intellectual property. But is this really the way to do it? In a recent poll on gameinformer.com, we asked our readers whether they ever actually dig in to read those lengthy missives penned by lawyers for some distant game company. The answer? 67 percent said they never give them a second glance. Less than 2 percent of respondents said they actually read them completely. Despite any misgivings, we scroll to the bottom, tap the “I Accept” box, and head on in to our beloved game. So it’s our fault if we didn’t read it, right?

Well, the matter is at least up for debate. Last year, an intriguing case went before the courts. In Vernor v. Autodesk, a man bought a few copies of an AutoCAD imaging program at a garage sale, and then tried to resell that software on the Internet. Autodesk threatened to sue him, claiming that not only did he not have the right to sell the product, but neither did the original owner. Why? Because the end user license agreement only licensed the software to the buyer. Neither buyer ever actually owned it.

What? He bought it, right? How can he not own it? The district court seemed to agree that something was fishy, and it ruled in Vernor’s favor. Sadly, an appeals court reversed the decision, and ruled for Autodesk.

Even ignoring the issue of the license versus ownership debate, this seems a little ridiculous. The “buyer” had no reasonable way to understand that he didn’t actually own the product in question. End user agreements are couched in so much legalese than even a trained attorney would have trouble parsing what they have to say. That’s the problem. Even if we did want to read and comprehend these agreements, most of us can’t without an advanced legal degree. Nonetheless, we’re held legally accountable to its contents. By hiding behind obscure and incomprehensible language, software developers and publishers create a nearly impenetrable barrier between themselves and the gamers that enjoy their titles. Even if I did read the 30 paragraph agreement you made me sign, I wouldn’t know if I was breaching the agreement if I wanted to.

For some people, I’m sure this couldn’t be less of a problem. Agree to the nonsense statement, and move on. What’s the big deal? It just bugs me. When I agree to something with my name attached to it, I like to know what it’s saying, or at least have an expert I trust give me the go ahead.

End user license agreements in their current form aren’t the answer to IP security for a few reasons. First, there are little to no protections for consumers. In a world where people increasingly purchase games, music, movies, and other entertainment digitally, there should be increased rights for the consumers of those products, not less. Would you put up with a brick and mortar store that made you sign a 10-page legal document before picking up a new sweater?

Second, these agreements are fundamentally incomprehensible to the average human being. How can I be held accountable to a document I can’t understand? For now, the courts seem to think I can. So long as that’s the case, no one should expect that software companies are going to change their approach.

In 2009, Congress passed the Credit Cardholders’ Bill of Rights. While few would claim this bill was perfect, it did put into place some basic protections for credit card use, including disallowing CC companies from changing a user agreement without advance notice. Sadly, similar protections do not exist for software users. Software agreements change all the time, but in many cases after the first few weeks of owning the product, you can’t return it if you decide to decline a new agreement. That’s presuming you could even understand what has changed.

There’s also the way these agreements back gamers into a corner regarding the functionality and lifespan of the game. Most agreements don’t guarantee service, and absolve game makers of delay or failure of servers. When you accept the EULA, you agree that the publisher can turn off its servers at any time without notice.

Just once, I’d like to turn on a new game and read a user license I could understand. Maybe five or six rules – things like: Don’t steal our game. Don’t use the game to make real world money. Don’t harass other players. The sort of thing I could read in a few minutes, and agree to with my eyes open.

But I think the agreements are so long and perplexing exactly so that we can’t do that. Make something convoluted enough, and no one will take the time to figure it out. Like the recent financial instruments that caused the mortgage meltdown here in the United States, it’s easy to overlook something that’s too complicated to comprehend. Admittedly, we’re not talking about the fate of the free market here. We’re just playing some video games. But a little transparency and simplicity couldn’t hurt, whether you’re talking about the contract for a house or the ability to enjoy your favorite MMO.

[This opinion piece originally appeared in Game Informer issue #216]