Law of the Game on Joystiq: End User License Aggravation

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Last week, ECA boss Hal Halpin posted a column discussing the need for the game industry to re-evaluate the big block of text you click to 'Agree' to without reading; aka the End User License Agreement (EULA). While I could write a column about the pitfalls of some actual EULAs, as PC Mag did in January, I will instead address the broader issue that no one has yet pointed out. In general, copyright law and its application to new media has lagged well behind the curve of practicality. I want to start out by saying that I fully believe the idea of copyright is a positive one, as those who create works should be able to protect their rights with respect to those works. However, technology has now pushed the envelope to the point that it is generally impractical, if not nearly impossible to impose the centuries old concept of 'copyright' that originated with the printing press.

Now, that's not to say the powers that be haven't tried to adapt copyright to new media. The Digital Millenium Copyright Act (DMCA) was the last train wreck of an attempt to do just that. The problem with a lot of legislation is that the law is primarily drafted by legislators who, to be quite honest, know next to nothing about what they're trying to legislate, while being prodded by highly paid lobbyists who, generally, represent the side with the most money. Just to be clear, I'm pro-business, but the typical effect of one-sided drafting is that the other side is left in an unpleasant position. Given that I'm also a consumer, I see the need for balance on both sides of this issue, and unfortunately, there isn't much balance at this point in the equation. The addition of the EULA only continues to tip the scales away from the consumer. In general, this isn't a problem for most users, but it certainly has the potential to be one!

For a lot of people, the concept of copyright in a software context is either confusing or just plain strange, but bear with me ... When you buy a piece of software, you're not actually buying the software, per se. You're buying a license to use the software in a way prescribed by the software's license, the EULA. Basically, the EULA grants the licensee (you) permission to use the software in a specified way such that the licensor (the software manufacturer) will not sue you for what would otherwise be a violation of its copyright.

Let's take a broad based example, Microsoft Windows, to analyze this concept. Let's say you go to your local computer store and purchase a copy of Windows Vista Ultimate. The license attached to that package allows you to install it on one machine. Therefore, if you install it on a second machine, you've violated the license and Microsoft could theoretically sue for breach of their copyright to Windows Vista Ultimate. On the other hand, let's say you want to buy Mac OSX Leopard. You could buy the single user edition or the family pack, which comes with 5 licenses. Let's say you have 3 computers. You would be violating the license you bought on the single user edition to install it on all 3 computers, but you would be well within your rights to install the family pack on those 3 machines. Pretty straightforward, right?

Where it becomes more complex is in an area where music has been problematic for quite some time. Let's say you own both a laptop and a desktop computer, and you buy a copy of the '8th best game of 2007' ... (Peggle, duh). Generally, the EULA will let you install the game on one machine. But you have two. Shouldn't you be able to install it on both, so you can play it at home (on your desktop) and while you're traveling? To take the opposite viewpoint, there's nothing to stop you from installing it twice and letting a friend play it while you're also playing it. The music industry has faced the same issue with CDs. If I buy the CD and want to put it on my MP3 player, I shouldn't have to buy it again. But on the other side, what's to stop me from putting it on my and my friend's MP3 player? Or putting it on my computer and giving the CD to someone else?

These issues almost have to be resolved on a media-by-media basis. With regard to games, Hal has the right first step in mind: there needs to be some sort of large scale discussion about the issue amongst the industry people. Consoles, by and large, don't have these issues, and where they do appear, they are not as significant as those on the PC side. So generally, this discussion should be among PC developers, as well as those who develop on the PC along with other platforms. Discussion does not necessarily mean standardization. In fact, I would think simplification would be a more optimal solution.

What do I mean by simplification? Well, think of it this way: That box you typically 'Agree' to would be a series of bullet points covering the software license's position on the general key issues in a short, readable form. The user would, of course, be able to read the full EULA if he or she so chose, but by and large, I imagine most people would just read the bullet points. This is, of course, is just one idea. But it would accomplish two things: convey better information to the consumer and protect the developer from problems with click-wrap agreements. In fact, it is feasible that the laws, such as the UCC, could be revised to provide greater protection for developers who followed a more consumer-friendly EULA format.

This is an opportunity for the game industry to be proactive and take the lead in dealing with the EULA. Clearly, the license cannot go away altogether, but it can certainly receive a facelift that would be beneficial to both the producer and the consumer. Ultimately, the goal of most laws dealing with consumers is to strike that balance between the rights of the parties on both sides of the line, and in this case, I think there is certainly room for improvement.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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