Last week, we looked at the first half of the EULA -- the license limitations, the steps to terminate the agreement and a few other provisions. This week is the back half of the EULA -- the warranties, conflict resolution provisions and miscellaneous provisions.
Section 8 prohibits the export and sale of the game to countries the United States has embargoed or persons that are on the "Specially Designated Nationals" list, essentially a list of terrorist organizations. Alas, this means that we won't be settling the War on Terror with world PvP death match.
The game is provided "as is" with no guarantee that the game can be played at any time, doesn't infringe on someone else's intellectual property or that it is fit to be played. (Vanilla WoW paladins would undoubtedly agree on this last point.) Blizzard does warranty that for 90 days after purchase, the CD-ROM will be free of defects in materials or workmanship, and if you discover such a flaw, Blizzard will fix it, exchange it or refund your money. This section is subject to state laws which can differ wildly on how such provisions are treated, so your mileage may vary considerably.
Limitation of liability
The next provision is half in caps so you don't miss it. Blizzard declares that it is not responsible for loss you suffer from use of the game. It's not their fault that trying to load Northrend melted your graphics card; it's not their fault you now have carpal tunnel syndrome from keyboard turning; and it's not their fault that you lost your job or failed your classes because you couldn't stop playing. Next, Blizzard declares that it are not liable for any loss your avatars suffer. Blizzard is not required to restore your account when it gets hacked. Blizzard does account restorations as a service to the community, but it is under no obligation to do so. You agree to hold Blizzard harmless for any injuries you suffer because of playing the game. Finally, should you try to sue Blizzard for damages you suffer anyway, your damages amount is limited to the last six months of fees. Again, state laws may leave this provision toothless, so your mileage will vary.
"Equitable remedies" is a bit of legalese that refers to anything a judge can grant you that isn't money. Injunctions to stop doing something, restraining orders to keep the ex away from you and an order to hand over the Picasso you agreed to sell for $100 are all examples of equitable remedies. These are handed down when fixing the problem can't fairly be done by simply assigning money damages or when action needs to be taken now before irreparable damage is done. In this section, Blizzard declares that it would be harmed if it had to wait for a judgment for money damages and so reserves the right to request injunctions or other equitable remedies.
Furthermore, if there is a lawsuit over the terms of the EULA, then the winning party has the right to have the losing party pay all the litigation costs. The recent private server case shows how this works. In addition to refunding the improper profits and pay the very expensive statutory damages, Scapegaming has to pay the $63,600 of Blizzard's legal fees.
Changes to the agreement
Blizzard gets to change this EULA at any time. If you don't agree with the new terms, you can terminate the agreement, as we discussed last week. Any continued use after the EULA is changed constitutes agreement to the new terms. Blizzard also can change any part of the game at any time.
Dispute resolution and governing law
Section 15 is rather large and complicated, dealing with how to resolve any problems that you may have with Blizzard. As part of the EULA, you agree that should any dispute about the EULA arise, you will go into a process of informal negotiation. If Blizzard has a problem with you, it will send notice to your billing address; if you have a problem with Blizzard, you should send a letter to Blizzard Entertainment, Inc., P.O. Box 18979, Irvine CA 92623, Attn: Legal Department.
But sometimes informal negotiation isn't enough. In that case, you agree to binding arbitration. This is a final resolution that is performed by an arbiter who hears both sides and attempts to get the sides to agree to a mutually beneficial arrangement. This arbitration will be run by the rules of the American Arbitration Association.
This provision prevents you from taking the matter to court. You can challenge whether your case belongs in arbitration in court. (In fact, it was that kind of lawsuit that gave us the Bragg v. Linden Lab decision.) Also, you may appeal to the court the award the arbiter assigns at the end of arbitration.
Why would Blizzard insist on arbitration instead of resolving things in court? Arbitration is not always cheaper, and it's not always faster (those being the most common reason given to avoid the court). The most likely reason is that arbitration decisions, unlike court decisions, are kept confidential. Every player has to approach the dispute by himself and doesn't know what deals were struck in other cases. Provision C goes so far as to insist that no two players can join their disputes together, a rule that tends to give Blizzard a lot more negotiating power in arbitration.
Blizzard makes an exception to its arbitration requirements for intellectual property disputes and allegations of piracy or unauthorized use. As we've seen, Blizzard wants everyone to know what happens when someone infringes on their intellectual property.
If you live in the United States, you can request arbitration anywhere that would be convenient for you. If you live outside the United States, arbitration will be held in Los Angeles County, California. If you want to go to court, you have agreed to sue in the courts of Los Angeles County, California. Regardless of whether the case is arbitrated or tried in court, the law of the state of Delaware and U.S. federal law will be applied.
The big thing in this section that if any part of this agreement is found improper, the rest of it remains in effect. Also, sections 6, 11, 12, 13, 15 and 16 apply even after the agreement is terminated.
Bonus info: A number of commenters were wondering what would happen with the $88 million fine assigned to Alysson Reeves and Scapegaming. The damages were assigned to Reeves personally, so she has no protection through her business. Statutory damages are generally considered unsecured, so that the fine couldn't be turned into a lien on her property. Finally, as unsecured debt, statutory damages can be discharged in bankruptcy and can lose in priority to other unsecured debt like credit cards. That last point depends on state law.
This column is for your entertainment and enlightenment only. If you have a personal legal question, contact a lawyer. For comments or general questions about law, law school or anything else, contact me email@example.com, @wowlawbringer on Twitter, or whisper Patent in <It Came From the Blog> on Zangarmarsh (US-H).