Game Developer Rewards 100 Users For Actually Reading The EULA

from the too-much-time-on-my-hands dept

Traditionally, we all know that the end user license agreement is used to try and give companies all manner of legal advantages, while attempting (often ridiculously) to strip away ordinary consumer rights. Of course, the legally binding nature of these agreements is dubious, and nobody bothers to read them anyway. We've historically noted that occasionally companies bury something fun in the ocean of mouse print to make just that point. Years ago, anti-spyware firm PC Pitstop promised to give away $1,000 to the first person to e-mail them at a specific address (it took 3,000 downloads for that person to appear).

Larian Studios, developers of the game Divinity: Original Sin, recently decided to have some fun of its own. The company just released a completely, massively-revamped version of the game it had been giving away for free to customers of the old title. But buried in the fine print for this new offering was a little message ignored by the lion's share of customers who downloaded the title:
"16. Special Consideration. A special consideration in material or immaterial form may be awarded to the first 100 authorized licensees to actually read this section of the EULA and contact LARIAN STUDIOS at info@larian.com. This offer can be withdrawn by LARIAN STUDIOS at any time."
Larian has yet to confirm what these folks won, but did note on the company's Facebook page that it pulled the fine print once the developers were satisfied that 100 people had actually bothered to read the fine print:
"We're telling you now because the results are in and it turns out that you in fact do read these things. Our lawyer feels good about this. He's also revoking the consideration because we're making him pay for every mail we get."
Frankly, it's pretty astonishing that even that many users could be bothered to read the EULA. More frequently, the gaming industry (like all other industries) is obsessed with using EULAs to strip away consumer rights or make consumer-owned products less useful, so it's refreshing to see a company with a sense of humor. That doesn't make it any less true that the standard EULA remains a ridiculous, unread beast and that keeping it simple is a better bet if winning consumer hearts is anywhere on your radar.

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  • identicon
    Anonymous Coward, 3 Nov 2015 @ 7:27am

    The biggest problem for most is the legalese used in EULA's and ToS , It makes no sense to me that a Lawyer with all their education can't write a paragraph so that laymen can read them, and they wonder why people don't trust them .

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 3 Nov 2015 @ 7:55am

      Re:

      "a Lawyer with all their education can't write a paragraph so that laymen can read them"

      It's not that they can't it's that they don't want the contract to be equitable to both sides. EULAs are meant to be deliberately confusing to the layman, so that they can then say "well, it's in the EULA and you agreed to it" if customers later find the terms unacceptable. If it was easier to notice the more odious terms, people would either return or not buy the product.

      Think the infamous music label contracts - the job of the labels' lawyers wasn't to make it so that both sides understood the terms. It was to ensure that artists wouldn't realise how one-sided the contract was while they were signing it.

      "they wonder why people don't trust them"

      No, they don't. They only care about servicing their client, who is quite happy and pays handsomely for creating the confusion. The lawyers don't care what consumers think, since they're not the customers for the lawyer's services.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Nov 2015 @ 10:18am

        Re: Re:

        This oversimplifies things. Most jurisdictions have consumer protection laws. If an EULA becomes too confusing to the point where only a lawyer would be able to comprehend its true meaning, the EULA is deemed unenforceable by the court.

        This means that by making EULAs unintelligible, a lawyer is doing nothing more than opening themselves up to a lawsuit by their customers.

        Furthermore, AV companies have also started taking this into consideration. If EULAs are deemed to be misleading, that can cause the software to be straight-up detected by the AV vendor. If the EULA is vague or confusing, it will be ignored, and the behaviour of the software installer and the software itself will be used to classify it, even if the EULA hints that the behaviour is being accepted by the customer.

        So yeah; because they've spent a few decades fine tuning the EULAs for maximum advantage to their customer (the software vendor), they've reached the point where AV vendors and law courts no longer accept this behaviour.

        Due to this, the question is still pertinent: if the EULA is unenforceable (and may even result in the software being blocked/deleted) due to being unreadable by non-lawyers, why are they still doing it?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Nov 2015 @ 10:32am

          Re: Re: Re:

          they keep doing it because it is almost never challenged and oft times enforced anyways.

          A lot of people do not realize how difficult it is to recoup loss from a corrupt business because the legal system has the default view that the consumer is wrong and the business is right.

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 4 Nov 2015 @ 12:20am

          Re: Re: Re:

          Good points

          "if the EULA is unenforceable... why are they still doing it?"

          Because most people aren't going to take the game developer to court over a game, and developers tend do to things other than take their users to court over an EULA violation. They'll block accounts, remove features, shut down servers, etc.

          Complaints to the developer will often result in them highlighting the part of the EULA that allows them to do whatever they're doing, and the average layman will be unaware that it may not be enforceable. Unless they consult a lawyer, which will usually cost more than the game did to begin with, so few bother.

          In short: whether or not it's enforceable in court means nothing if these issues don't make it to court.

          reply to this | link to this | view in chronology ]

    • icon
      Adam (profile), 3 Nov 2015 @ 7:57am

      Re:

      They can't write them so the layman can read them because other lawyers, when fighting against the text, will use something as simple as an ill placed comma to change the entire meaning of the written text.

      Consider this from, say an insurance company.

      Most of time, travelers are responsible for covering repairs in the vehicles they rent with the exception being neglect on behalf of the rental company.

      Now, remove that 1 tiny comma:

      Most of time travelers are responsible for covering repairs in the vehicles they rent with the exception being neglect on behalf of the rental company.

      Example one: TRAVELERS are responsible for damages most of the time.

      Example two: a majority TIME TRAVELERS are are responsible for damages.


      One might argue that though they are responsible for damaging the vehicle they are not responsible for those damages because they are not a TIME TRAVELER at all and the clause specifically points out that MOST TIME TRAVELERS without any provision for anyone else.

      It sucks because the system sucks.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Nov 2015 @ 10:24am

        Re: Re:

        Point is well illustrated, but it wouldn't take much of a lawyer to point out that every living human is a time traveler. And a judge would be very sympathetic to that interpretation.

        There HAVE been efforts to create boilerplate that is both easy to read AND hard to misinterpret in court.

        I think the big problem is that outside some simple cases, you need a good license lawyer to write up the EULA to fit this standard, and when it comes to lawyers, you can have good, or you can have cheap, but not both. And free/cheap software is going to get much more expensive if you hire a good lawyer to write the EULA.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Nov 2015 @ 2:32pm

        Re: Re:

        I'd like to think that most judges would not buy something like this... unless of course the car being rented is a DeLorean.

        But in all seriousness, judges are not robots, they are people, who should understand the differences between subtle semantics and a typo. The real reason for all the crazy legalese is not only to confuse laymen, but to explicitly spell things out for the lawyers. In this example "Most of the time" is awfully vague... does it mean that some travelers are not responsible for damage? And under what circumstances?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2015 @ 8:02am

      Re:

      The legalese in face-to-face contracts was actually much worse a couple of decades ago. At least contracts today have enough everyday English in them to make them marginally understandable to the layman, though it seems the amount of legalese is slowly ratcheting up again.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Nov 2015 @ 9:23am

        Re: Re:

        Not so much 'legalese' as legal doctrine. In a face-to-face 'contract' do you negotiate limitation of liability, third party indemnification, subrogation or waiver thereof, and arbitration agreements? And if you depend on "as-is, where-is" and don't expressly state such you will likely find out about implied warranties.

        reply to this | link to this | view in chronology ]

    • identicon
      Lawrence D’Oliveiro, 3 Nov 2015 @ 8:14pm

      Re: can't write a paragraph so that laymen can read them

      Sure they can. Look at Free Software licences.

      reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 3 Nov 2015 @ 7:43am

    What a shame nothing's changed in 10 years:

    https://www.techdirt.com/articles/20050223/1745244.shtml

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2015 @ 7:47am

    short memories

    Apparently people have short memories. It was not very many years ago when numerous free software applications came loaded with some surprise "bundles of joy" that basically hijacked a person's computer, and even the most awful ones were never tagged as malware by any of the AV companies because the EULA (that everyone agreed to despite never reading) sanctified the malware. And since the AV companies insisted on ignoring this malware, this spawned a whole new industry of startups such Ad-Aware and Spybot that, unlike Symantec and Mcafee, agreed that malware is malware, EULA or not.

    http://www.dslreports.com/forum/r2956128-Kazaa-to-now-sell-unused-cycles-on-your-computer

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 3 Nov 2015 @ 8:37am

    Well, that's interesting. I only read the EULA/TOS/whatever if the product/service is important enough that I wouldn't like it to be terminated out of the blue. This wouldn't match the criteria to be read though.

    reply to this | link to this | view in chronology ]

  • icon
    radix (profile), 3 Nov 2015 @ 9:14am

    Or the cynical interpretation

    Given the state of the software industry, they're probably just collecting evidence that people do, in fact, read the EULA, so it must be legally binding. Then they can start to get even more onerous in the T&Cs.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2015 @ 9:26am

    Simpler

    That doesn't make it any less true that the standard EULA remains a ridiculous, unread beast and that keeping it simple is a better bet if winning consumer hearts is anywhere on your radar.
    The linked page says "Incoherence Copyright (c) 2004-2005 Greg Hazel and Steven Hazel / All rights reserved. / [URL] / By installing this software, you agree that you have seen this copyright notice."

    I think the last sentence is just a joke and could be deleted. Copyright notices haven't been required for about 40 years, so that could go, as could "all rights reserved" which is the legal default. There's no reason for a EULA at all, and unless the software developer wants people to sign away statutory rights, they could omit all of that and just use an "about" screen for credits. It should have no difference on user behavior since so few read these, and make no difference legally.

    reply to this | link to this | view in chronology ]

  • icon
    Alien Rebel (profile), 3 Nov 2015 @ 10:01am

    Timely

    Abusive user agreements, ToS, and other contractual monkey business are everywhere these days. The New York Times just ran a 3-part series on arbitration clauses, which they say are unfortunately and too-frequently being upheld in court.

    Arbitration Everywhere, Stacking the Deck of Justice

    Given the Times' focus on this short-circuiting of justice via contract, I'm now waiting with great anticipation for them to print their in-depth article (coming any day now) on how circumvention of U.S. law by ISDS arbitration in the TPP will be a good thing.

    --

    reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 3 Nov 2015 @ 11:18am

    Techdirt winner

    Hey almighty staff of Techdirt. I would love to claim my prize from you. I read through all parts of your website to include those not written yet and those written in invisible font. Very sneaky where you wrote it. I accept bitcoin, cash, and of course unicorn horns. Of course I had to remove those comments to save you the hassle of paying others.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 3 Nov 2015 @ 12:33pm

    Eula

    was that not the sound the Martians made in (Jeff Wayne's) "War of the worlds" as I recall it came out in 1978, an Awesome album, could they not sue for infringement?? what a Kick THAT would be....


    http://www.thewaroftheworlds.com/

    reply to this | link to this | view in chronology ]

  • icon
    HegemonicDistortion (profile), 3 Nov 2015 @ 6:12pm

    More likely

    Frankly, it's pretty astonishing that even that many users could be bothered to read the EULA.


    I find it more likely that a only small handful of purchasers actually read the EULA, and one or more them posted something about the freebies online or told their friends about them.

    reply to this | link to this | view in chronology ]

  • identicon
    Joseph Kerr, 17 Mar 2018 @ 5:25pm

    Eula Prize

    reply to this | link to this | view in chronology ]


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