Curmudgeon Gamer
Curmudgeoning all games equally.
10 July 2006
Legal Jibba-Jabba
The link above goes to a lawyer's very cogent explanation of why most geeks yakking about the law is even more disconnected from reality than it seems. I recommend reading the comments too, where an Anonymous User points out the flipside:
[The reason engineers have problems with the law is] that we have problems with the illogical nature of much law and the tendency of lawyers and lawmakers to think they can legislate physical and mathematical reality....EULA's are no different... some judges may say I agree to it if I open the package but physics says I can't have read and agreed to what I haven't yet seen.
My naïve summary of the article is:
  • The law isn't just what's written down -- it's an ongoing process of rules that are only enforced insofar as a judge thinks they're reasonable;
  • As a result, the law isn't particularly rational, but
  • Mostly, don't sweat that EULA stuff -- the reasonable terms would hold up in court, and the unreasonable ones wouldn't.
Which is fine, as far as it goes. But the engineer's annoyance that the law doesn't seem to respect the bounds of logic isn't merely aesthetic. I think it's fundamentally moral.

People that anguish over EULAs want to do the right thing, but don't like what the EULA is asserting as the right thing. Some people advocate avoiding the problem -- live on Open Source, or only software that offers license terms you're happy with. In a sense, this is a "take them at their word" approach -- a company selling software licenses with EULAs is announcing its intentions (about guarantees, about limited liability, about what it wants to dictate to you), and if you don't like those intentions, don't do business with them.

Or one can take the "they don't really mean it" approach -- this means disregarding the EULA. Sure, it says I can't resell the software, but they haven't come down on EB's "pre-owned" section, have they? How are they to know if I'm playing on an emulator or if I'm making bootlegs? This attitude can depend on the who more than the what -- I might not be willing to buy Microsoft's stuff under such onerous terms, because I don't trust them, but be willing to overlook a tough-sounding EULA from a "good guy" like ...oh, anyone but Microsoft. (Except Blizzard. Or Electronic Arts. Or...) Similarly, EULAs on console games might not bother you the same as PC software, or click-through vs. shrinkwrap. This is the tricky region where a lot of the arguments over EULAs come up -- where people are doing something the EULA forbids, but feel justified because they can get away with it, or because they think the EULA's not legal, or because they have a sense of what they should be allowed to do. To the "take them at their word" people, all of these are splitting hairs -- you put yourself in the moral dilemma when you bought the software and violated the terms of the EULA, and everything else is just trying to justify it to yourself.

Of course, mostly there's the "It doesn't bother me" approach -- I don't really expect the software to melt my machine, so what do I care if they refuse to be held liable? I'm not really going to make any copies of my PS2 games, so what's the problem if they tell me I can't? I might think I ought to be allowed to do that, but since I'm not going to, it's just an academic argument, which isn't enough to keep me from buying the game, EULA and all.

The problem is that EULAs (and most other legalese a nonlawyer runs into) isn't an unbiased statement of the law. Rather, it's a company lawyer trying to convince you that the law is what they say it is. Recall the old "Any rebroadcast without the written permission of [insert sporting franchise] is prohibited by law" blurb at the end of the game? It's a blatant lie, on many levels. That's not what the law says -- it's what they want you to believe the law says, in order to maximize their profits.

If it were up to me, I'd make it a condition of practicing law that you have to make statements that you believe represent the law as it is, not as your client would like it to be. But it wouldn't solve the problem. Because the law is flexible and evolving, and because it's not just a matter of "what the law says", but how a judge would rule, a lawyer writing that rebroadcast prohibition doesn't know whether a given rebroadcast would be prohibited or not. And, since they're representing a client, they have to take their client's side -- that [in a completely undefined hypothetical case of a rebroadcast] it would be prohibited, meaning they could successfully sue over it.

So, when I've ranted myself out about the average person not being able to determine whether something is legal or not, and the legalese propaganda poured into our ears by EULAs, copyright claims, etc., what is the thing that still annoys me?

It's that this EULA thing is a novel concept for a situation that doesn't _need_ a novel concept. Software companies are trying to have it both ways -- they want me to "buy their software", but they don't actually want to sell it to me. That's what a EULA is -- a statement that I'm not buying the software, just "licensing" certain uses of it. Rather than act like every other merchant in every other field, and accept the centuries of legal precedent and understanding about liability, merchantability, resaleability, etc. that comes along with buying and selling things, software companies want to dictate terms where they "sell" you software, but only to do what they want you to do, and by the way, they're not responsible for it working, or breaking, or destroying your stuff. (I am often reminded of the SNL toy "Bag of Broken Glass". Is that really what they think they're selling me?)

There's a world of reasonableness in the law -- and the EULA is an attempt to get around it, by replacing commerce law with the wild playground of contract law. Which is appropriately wild -- people should be able to make enforceable agreements between each other, under almost any crazy terms they like. But when you sell me a hammer, I expect it to pound nails into wood. And not explode. And when I'm done with it, I can give or sell it to someone else. Is it really too much to ask?

I would like to buy their software... t-shirt

Here's a T Shirt.
You can get it at Zazzle, if you want.
--Bob Wieman at 11:01
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