Flaw in "Updated" User Agreement?

[Infini]

which means.....file a law suit in the EU or Austraila then!

[Linliel]

which means.....file a law suit in the EU or Austraila then!

Not really, not much point since they're not within Australian or EU law It starts to get very murky very quickly, which is why I'm glad I'm not a lawyer and that this isn't really the main focus of my dissertation (one of the practical outcomes of which is looking at how things can be improved so normal people (and not just lawyers) *know* what's going on when they click "I agree" on an EULA)

[brokensword]

/sigh


Time to clear up a few misconceptions.

The American Bar Association does not govern all lawyers in America. State Bar Associations do that, and without passing one state's bar exam and being certified as fit to practice law in their state, you can't practice in that state. That means you are also limited to the state when you do pass that state's exam, unless you find another state with reciprocity so that you can waive into their bar association (read: pay the state like $1k-2k USD).

Regarding suing internationally: In this situation, there is no difficulty in suing Square Enix in any state in the contiguous 48 states of the U.S.. In civil procedure terms, you need to make sure they have sufficient minimal contacts with that jurisdiction. World-Wide Volkswagen v. Woodson 444 U.S. 286 (1980). It is arguable that they have continuous systematic activities that give rise to the liabilities that are directly related to the suit you would try to bring. In this way, despite being a Japanese corporation, an American court can exercise jurisdiction over them.
HOWEVER: When you clicked I Agree, you also agreed to a forum selection clause, limiting your jurisdiction to the state of California if my memory serves me correctly. This forum selection clause would likely be enforced unless it would produce undue hardship on the party trying to bring suit.

I'm currently writing my doctoral thesis on informed consent in information technology, with specific mention of End User License Agreements as a case study on why things need to improve in this particular area. Basically it's as people say -- EULAs are notorious legal black holes which... get this... aren't enforceable over local laws. So if there is something that conflicts within the EULA and your local laws, then your laws come first. They can't make you do something illegal in your area, basically.

This EULA has not made you do anything illegal in your area, and likely does not conflict with your local laws. They hire very good attorneys to draft these things. Moreover, you agreed to a FORUM SELECTION CLAUSE- YOUR LOCAL LAWS DO NOT APPLY BECAUSE YOU AGREED TO BE BOUND BY CALIFORNIA LAW(you read it, you agreed to it, you accepted the modified agreement by paying them another $11.95). Even if you don't go to California to sue, California's laws would apply where ever you plan to sue. (Most likely this would be federal diversity jurisdiction... but I'm not going to get into that since your suit is not worth over $75,000)

Now the important part: Their clause saying they can delete for whatever reason and you don't own your character. I am so sorry to burst alot of bubbles here, but this agreement is a licensing agreement! The 11.95 you pay monthly is not so that you have full ownership over your pixels. It is so that you license the right to use SE's intellectual property (their video game) every month. These are the terms you agree with every time you press "I Agree." The nature of the game itself is consistent with a licensing agreement as well. You have a license to log your computer into their servers and use the code, and the game they created every month. The fact that you have certain amounts of unique data and information stored on your hard drive does not give you complete ownership over what you have on your computer relating to that video game. For example, when TNT licensed the Lord of the Rings from Newline Cinema so that they could show it on television for weeks on end, the mere fact that they have physical copies of the movie does not mean that they therefore have absolute control over it. It certainly does not mean that they have "constitutional" rights to it. They are still subject to the terms of the licensing agreement that they voluntarily agreed to, and those limited rights may be terminated if they violate the terms of that licensing agreement.

There are NO constitutional rights being violated here. Please go back and read the Bill of Rights and all subsequent amendments to the Constitution if your memory needs refreshing, before you start throwing around words such as "constitutional rights" just because you are upset. All constitutional rights are explicitly stated therein. Only those rights explicitly stated are your "constitutional" rights. Furthermore, if you think this is a first amendment right and want to argue it that way somehow, you cannot bring a first amendment claim without a government action to curtail your first amendment right. There is no government action here.

The "Consumer Law" you are citing. Errr.... could I get the citation of that "Law"? Is it a law? Is it a federal regulation? A state regulation? A state law? Most consumer protection laws are handled by each individual state and therefore have unique differences from state to state (remember yet again that you agreed to a forum selection clause, and are bound by California laws). However, given the text of what you wrote, it seems like you are referencing what would be called an "unconscionable" clause in a contract. Clauses can be unconscionable if they cause undue surprise, but not necessarily because they are "one sided." The example that was cited exhibits this quite well...

a term which stated the business accepted no liability for death or injury or which sought to introduce penalty clauses.

Clauses that are penalties are in and of themselves consistently held unconscionable in all states, but the facts and circumstances of each case affects this outcome. For example, a contract that says "I will give you this dog if you make 6 payments of $19.95 a month. After the full balance has been paid I will then tender the dog. If you breach this contract, the entire balance will be accelerated and become immediately due upon buyer's breach and buyer will have to pay an additional $100 above the full contract price."- this is an example of a penalty clause, and such a clause is unenforceable. The mere fact that there are one sided terms present does not make that clause unconscionable. If perhaps SE had buried those terms in the boilerplate (small print of a business's contract that has all of their standard terms in it) and you were not aware of them, if they are the savvy merchant, you were the party that was had the weaker bargaining position, and those terms gave you undue surprise when you eventually do find out about them, then you could make the argument that the clause was procedurally unconscionable (the unconscionable nature of this clause comes from the making of the contract). The more of these factors you meet, the stronger your case is. The fact that the other side has superior bargaining power and gave you a boilerplate contract with all of their standard terms in it does not give rise to unconscionability per se.

However, if I remember correctly, the clause that allows SE to unilaterally delete your character, ban you from it or what have you, was in all caps, was set apart from other sections, and you were required to read the entire agreement before you could press "I agree." You're going to have a tough time showing procedural unconscionability here, because you'll have a tough time proving to a court that you were genuinely surprised by it. Without going into too much detail, it is unlikely that that this clause is substantively unconscionable either. So even if this "Consumer Law" exists, the "protection from unfair standard terms in contracts with businesses" that it affords does not apply to this situation. Furthermore, there have been so many cases decided on this issue deciding licensing agreements that favor the licensor and not the licensee that you would be hard pressed to win such a suit.

In the U.S., the typical rule is that you have freedom of contract. You can set your own terms in most cases, and have those terms stick (there are exceptions). You get what you contract for. You were required to read SE's terms when they modified the End Use LICENSE Agreement, you had the option to accept or not accept these new terms (it's hard to imagine not accepting because you have so much invested in your existing license, but you have that choice to say NO and stop paying) = and you pressed "I ACCEPT."

/end rant from attorney who conversed with a 3rd year law student spouse to dictate and make sure nothing grossly incorrect was said

[Rocl]

Oh my god, you sound like a real lawyer. Get out of here, we have fancier internet lawyering degrees here.

[Titanss]

They can probably get better lawyers than you. Thousands of them. With kclubs.

ahahaha

[Zosi]

(Wall-o-text-and-truth)

Thanks for posting a substantially more credible and well-written version of what I was dreading posting. Good to see that there's someone who actually understands the applicable laws.

P.S. - To the OP, the profession that predominately relies on "boards" to certify their members is the medical profession.

[brokensword]

Oh my god, you sound like a real lawyer. Get out of here, we have fancier internet lawyering degrees here.

Don't fall for those internet degree hoaxes! Get yourself a fat scholarship from Devry! It's the only way to go!

Their law program even throws in a Kclub after your 2nd year.

[Charismatic]

Oh my god, you sound like a real lawyer. Get out of here, we have fancier internet lawyering degrees here.

Don't fall for those internet degree hoaxes! Get yourself a fat scholarship from Devry! It's the only way to go!

Their law program even throws in a Kclub after your 2nd year.

Oh shit, where do I sign up?

[Genosync]

Forget kclubs.

Real men wear red visor masks and hurl steaming hot mugs of coffee across the courtroom.

[Linliel]

This EULA has not made you do anything illegal in your area, and likely does not conflict with your local laws.

Yup, this was sort of in my subtext but I didn't say it explicitly.

brokensword really nailed this, and the big thing that I'm dealing with in my PhD is not the nitty gritty law-talkin'-guy type stuff but the fact that even though most companies are okay (nothing S-E has really posted in the FFXI EULA is particularly scary) there are often nasty sorts of things buried deep in the agreement (just look at any of the "free" software you can download like kazaa or limewire for an example) that for example bundle spammy third party software or take your personal information and sell it. And with 99.999% of people not able to talk law, that's pretty awful, really. Informed consent procedures are really, in spirit, supposed to inform which is a transaction of information, not just a basic disclosure of information in a format that's difficult to read*, so that you know and, more importantly, understand what things you would otherwise expect to happen won't happen in this case, or will happen in a different way.

You don't go off to a doctor expecting him to give you a needle and he ends up chopping off your arm -- you usually have a discussion about it and sign a few agreement forms after knowing all the reasons why he needs to chop your arm off. It's just that in this case, and not in IT cases, you have someone there you can ask questions of and negotiate with -- in IT cases it's a take it (install/I agree) or leave it (don't install, miss out on the fun/work/etc.) situation entirely. And if you're using preinstalled software or software your work essentially forces you to use (say due to a proprietary format), that's where this starts to suck. Or even if you just never read EULAs. And who the hell does these days?

/rant off


* brokensword mentions that the important part was in all caps. There are studies ( http://www.mcneese.edu/ajpr//vol1/ajpr11.pdf )that show that people just can't read all caps. They find it really difficult to read, and feel that it's more difficult to get information out of paragraphs of all capital letters. IMO this is really dumb. Why do they do it in all caps anyway?

[brokensword]

* brokensword mentions that the important part was in all caps. There are studies ( http://www.mcneese.edu/ajpr//vol1/ajpr11.pdf )that show that people just can't read all caps. They find it really difficult to read, and feel that it's more difficult to get information out of paragraphs of all capital letters. IMO this is really dumb. Why do they do it in all caps anyway?

Wow, that's really interesting. I hadn't heard that before, but you could really make some good arguments about caps lock with those studies.

The only reason why they do it in all caps is because they need to set that language apart and make it visible. That way, the person who accepts it can't say they didn't know about that particular clause and perhaps have an argument that it was therefore procedurally unconscionable. But the argument that "you didn't notice or know about that clause because it was in caps lock and therefore indiscernible to you from anything else in the agreement" is an interesting one. Would need an expert witness to testify to that though. It's a cool argument, but unlikely to convince convince most juries or judges I'm afraid...

oh, and I read the EULA... but I am an exception to the rule... because I have no freakin life.

Only really read it though because SE put a button at the bottom of it that you couldn't push until you scrolled through it all. I could tell they wanted you to agree to some really new stuff...

[Linliel]

The only reason why they do it in all caps is because they need to set that language apart and make it visible. That way, the person who accepts it can't say they didn't know about that particular clause and perhaps have an argument that it was therefore procedurally unconscionable. But the argument that "you didn't notice or know about that clause because it was in caps lock and therefore indiscernible to you from anything else in the agreement" is an interesting one. Would need an expert witness to testify to that though. It's a cool argument, but unlikely to convince convince most juries or judges I'm afraid...

Yeah... it's just something that's more interesting -- I doubt that it's gonna make the legal profession re-think the ways they've been doing things for the last n years!

oh, and I read the EULA... but I am an exception to the rule... because I have no freakin life.

Only really read it though because SE put a button at the bottom of it that you couldn't push until you scrolled through it all. I could tell they wanted you to agree to some really new stuff...

Hehe, yeah, I read them all too now ~_^ Some pretty wacky stuff goes into agreements! It's good that SE put the button at the end of it -- most companies just slip in a "you agree to be bound by any future versions of this and the agreement may be changed at any time without notification", which is pretty ... um ... dodgy

[Akucaen]

Forget kclubs.

Real men wear red visor masks and hurl steaming hot mugs of coffee across the courtroom.

And they use whips.

[Eron]

The best part was where they said they could now legally anally rape with a rusty shovel anyone that tries to sell their account.

Wait, I'm the only one that read that part? I swear it was in there. It's in the ALL CAPS part isn't it?

[ronin sparthos]

The best part was where they said they could now legally anally rape with a rusty shovel anyone that tries to sell their account.

Wait, I'm the only one that read that part? I swear it was in there. It's in the ALL CAPS part isn't it?

Saying it and doing something about it are two different things.

[Eron]

A man can dream, can't he?

*looks for shovels to mail to SE*

[Tubbers]

They can probably get better lawyers than you. Thousands of them. With kclubs.

This is correct. :bagel:

Absolute Virtue, Attorney at Law

Absolute Virtue: Attourney at Law

AV: All right gentlemen, I'd like to start off by encouraging a civil discourse. We should look at the facts, and the law, and make an informed and legal decision. Ok then, *AV Uses Manafont* *AV Spams meteor until everyone dies*

AV wins.

[orson]

My sister's husband's cousin's dog's vet's dentist's hairdresser's mother-in-law's girlfriend's brother's lawyer said that the OP is right, true story....

P.S. His name was Ted.

[Spekkio]

here's the real question: when will it actually be challenged in court? even if SE simply capitulated in every case that was attempted to be brought to trial (assuming they would even be heard) what percentage of all cases would that be? 1%? half a %? even if the language and rights that are baked into this "contract" are about as rock solid as the average ffxi player's gut, it will still have the same effect in nearly all cases: unlimited latitude to SE to act at will upon our accounts.

[Quizno]

here's the real question: when will it actually be challenged in court?

Here is where it becomes interesting to me.

People keep laughing about challenging MMORPG's in court, but the day is coming (and quickly).

Perhaps the first will not be a result of FFXI, but online RPGs are becoming huge business and can not be ignored forever by the court system.