EULAs and WoW in Contract Law + Account Transferability

[Dasffion]

That is specifically the argument Blizzard would make! And it's a good one! But it would be considered alongside a player's feelings that the character's are "theirs." I mean, look at basic dialogue between people. They say "My warrior" or "My shaman" or "My deathknight" and so on. Did you just "get access to" a new 1-hand wep, or do you say "I just won a 1-hand"? The feelings we associate with our characters belies the very nature of Blizzard's full retention of the property. That is what could potentially make the clause unconscionable and therefore unenforceable.[COLOR="red"]

When you lease a car or a rent an apartment do you not say "My car" or "My apartment"? They're not yours, you're just using them for the time.

[Deleted]

That is specifically the argument Blizzard would make! And it's a good one! But it would be considered alongside a player's feelings that the character's are "theirs." I mean, look at basic dialogue between people. They say "My warrior" or "My shaman" or "My deathknight" and so on. Did you just "get access to" a new 1-hand wep, or do you say "I just won a 1-hand"? The feelings we associate with our characters belies the very nature of Blizzard's full retention of the property. That is what could potentially make the clause unconscionable and therefore unenforceable.

This doesn't sit very well next to your desire to sell the characters?

Emotional attachment is not a measure of ownership - that's why we have restraining orders!

Besides, avoiding getting too emotionally involved with your character is a well established rule of RPG.

I'm still not sure ownership is all you want - you want ownership and the ability to use that character in Blizzard's game.

Out of interest, if Blizzard offered a paid service to transfer characters between accounts, would this affect your argument?

[Deleted]

When you lease a car or a rent an apartment do you not say "My car" or "My apartment"? They're not yours, you're just using them for the time.

They become yours for a time.

You get rights of use and the responsibilities of ownership in exchange for money.

[pvrwizard]

Yes, I apologize to Rukentuts. I got flustered at posts like that of mad_murdock, and although I tried to contain rage, the gasket pretty much blew out in his direction. It is hard to tell when someone is being a Negative-Nancy Internet responder on a forum like this when surrounded by posts along the lines of "LOL BLIZZARD LEGAL TEAM STUMPED BY 3RD YEAR LAW STUDENT".

---------- Post added 2013-02-20 at 02:43 PM ----------



Yea, I could tell. See my apology above

The post you sent has been pretty helpful. I'm still reading, but my impression (so far) is that this area isn't really litigated. It has been in a couple of other situations (e.g. Second Life property), but most of those cases have been settled. In turn, there's not really much law supporting the arguments either way. Seems to be untrodden law on this specific issue, with strong arguments both ways in the state courts.

I guess I always looked at this way.. we pay a monthly fee to rent access to their servers. in the process of renting that access we create, delete and modify various characters. As with quite a number of rental agreements sub-leasing is not permitted. in essence if i rent/lease an apartment I am typically not allowed to say rent/lease the apartment to another party wether i accept money for it or not. In other words I can not extend or transfer a contract to a third party for property I do not own.

[Deleted]

They become yours for a time.

You get rights of use and the responsibilities of ownership in exchange for money.

But you don't usually gain unrestricted rights.

Generally, they come without the right to sub-let etc or even to allow someone else to drive the car.

[Dasffion]

They become yours for a time.

You get rights of use and the responsibilities of ownership in exchange for money.

And in most cases, unless it's specifically stated in the contract, you can't turn around and sell them to a third party, which is what the OP thinks he should be able to do.

[Pogopon]

I guess I always looked at this way.. we pay a monthly fee to rent access to their servers. in the process of renting that access we create, delete and modify various characters. As with quite a number of rental agreements sub-leasing is not permitted. in essence if i rent/lease an apartment I am typically not allowed to say rent/lease the apartment to another party wether i accept money for it or not. In other words I can not extend or transfer a contract to a third party for property I do not own.

This is basically right. And it is why your right to sell/transfer a WoW account is almost certainly a loser in court.

A more interesting question is whether you can somehow acquire a right in something through creation.

For example, pretend you pay a guy ten bucks to rent an easel, a brush and some paint, with no other agreement in place. You then proceed to paint a beautiful picture. At the end of the hour, who has what rights? Can he keep the picture? Can he sell it to someone else? If he does, are you entitled to anything?

More fun: What if you take a picture of your artwork during the course of that hour. Can you sell the picture of what you painted? If you do, is he entitled to anything?

Rights in ephemeral things are kind of interesting. But yeah, arguing that you can sell your WoW account - not so much.

[Dreyo]

I don't think so. My friend that sold his account just went to one of the many well-established websites to conduct that type of transaction and did it. No questions asked. Why would they ask when they can just do it? Especially when they're trying to sell it, indicating they don't want to ever come back. Why would a person think they need to sue Blizzard and seek injunctive relief before being able to conduct the transaction? More specifically, even being aware of the no-transfer clause, why would they pay the court fees to do this and have to undergo expensive litigation against a big company to maybe get $500? Conducting their transaction without the injunction exposes them to 0 criminal liability and, at worst, they lose an account they don't want.

....

Uh

You just argued that laws shouldn't exist, because people break them. You may want to reconsider your law school tuition.

[yjmark]

That is specifically the argument Blizzard would make! And it's a good one! But it would be considered alongside a player's feelings that the character's are "theirs." I mean, look at basic dialogue between people. They say "My warrior" or "My shaman" or "My deathknight" and so on. Did you just "get access to" a new 1-hand wep, or do you say "I just won a 1-hand"? The feelings we associate with our characters belies the very nature of Blizzard's full retention of the property. That is what could potentially make the clause unconscionable and therefore unenforceable.

I guess I'm a bit confused on why that is unconscionable. It's not like Blizzard is taking advantage of anything. They just don't want people selling accounts which will belittle the game progression feel. It goes against the intent of the game. MMOs are all about progression of a character. By removing the progression requirements (i.e. selling your account), you have just removed a key essence of the game. This is made very clear in Blizzard's contract, so it's not like Blizzard is deceiving players, or putting in unfair lines in their contract (which is what it seems is the most common uses for unconscionable claims).

You even state that people get attached to their characters. So selling them would mean that the person is really just looking to make money off Blizzard's product. If they were really "attached" to their character, they would not sell it. People who sell characters will have a tough time proving that they are so attached to their characters, yet want to make a quick buck off them.

At least, that is my interpretation. Am I off?

NOTE - I'm really just trying to understand this. Again, I have no real legal education, so this post is really interesting to me. However, I always believed that most legal contracts were based around intent. And I am having trouble seeing how selling accounts meets the intent unless they really are just trying to make a buck off Blizzard's product.

[Deleted]

And in most cases, unless it's specifically stated in the contract, you can't turn around and sell them to a third party, which is what the OP thinks he should be able to do.

That's not true, the most common forms of rental allow you to trade the or sell the items you have rented.

That is - money and shares.

[Deleted]

That's not true, the most common forms of rental allow you to trade the or sell the items you have rented.

That is - money and shares.

What are you renting with money or shares?

[Shakari]

No, it is a license. A license to access an account. That is how this would be treated under contract law. A promise to pay in exchange for a promise to access the database/servers/characters associated with a specific user name. That second promise = a "license". That license is the very ground MMOs base their "non-transferability" clauses on. They say because you are getting access with this account to play on their servers, that you are not gaining any kind of property rights invested in them in the first place. Merely a "service"/"license" to play.

The rest of your arguments are also flawed. You're saying that the clause can't be challenged because I'm selling "play time." I'm not selling play time, I'm selling you the right to access my account. In other words, and in other circumstances, if I contracted with a party to enjoy something they have and are the only people that can provide me with that thing, then I am able to sell my access to that thing to someone else until the expiration of my contract to enjoy it. That's just subrogation.

Anyone can create a Bnet account and the attached licence comes with it.... how many people would want an empty account that comes with that.
To a point yes the licence is for that account. But ... you pay for either the game or the subscription to access the software or servers not for the account, and you do not own the software or subscription based characters/items etc you pay for the licence to use the software or the right to access and connect to the servers, but not for the Bnet account behind them. So yes you "may" have grounds to transfer the account but not anything included in the account as thats a seperate issue, which makes this all a moot point really.

[Deleted]

What are you renting with money or shares?

Money never belongs to you, it always belongs to the central bank and you just get to use it - shares are routinely short sold. (i.e. you borrow shares, sell them and hope to buy them back for less than you sold them for when the rental period ends.)

Most communal items are rented and fungible. Not sure how it applies to wow accounts, mind you. There might be a way of thinking about these issues in terms of workmen and their tools though, if a workman borrows tools and materials but adds his own labour, what happens? Well, we usually call this being employed and you invariably get paid for being employed. So, while it's blizzards server etc etc none of that means anything much without the input from the player - they are arguably the most important part of the whole deal. No player, no game.

[Deleted]

Money never belongs to you, it always belongs to the central bank and you just get to use it - shares are routinely short sold. (i.e. you borrow shares, sell them and hope to buy them back for less than you sold them for when the rental period ends.)

This is stretching the definition of renting and clearly it only applies to fungible items.

What Blizzard offers is 'entertainment' in return for fees. That it requires players is no different from any other communal activity - night clubs are pretty meaningless without the paying punters. People who regard their game as 'employment' are playing the wrong game. Many recreational activities require a lot of time and effort but this usually leads to a sense of achievement rather than entitlement.

[huth]

This is stretching the definition of renting and clearly it only applies to fungible items.

Actually, it's breaking it. Borrowing and renting are two different things.

[Deleted]

This is stretching the definition of renting and clearly it only applies to fungible items.

It's not stretching and wow accounts are indeed pretty fungible.

What Blizzard offers is 'entertainment' in return for fees. That it requires players is no different from any other communal activity - night clubs are pretty meaningless without the paying punters.

Sure, but in a nightclub if you buy drinks and make friends you get to keep them. The club just provides the venue, in the same way that blizzard just provides the venue.

People who regard their game as 'employment' are playing the wrong game. Many recreational activities require a lot of time and effort but this usually leads to a sense of achievement rather than entitlement.

And in other areas, what you achieve is yours. I'm not saying it's right, it's just another POV. Obviously the law doesn't seek truth, it merely argues one way or another and the prejudice of whoever is in charge on the day decides the victory. Currently the judges etc are older men who are steeped in ideas of ownership which are largely based on real, tangible, uncopiable items and so their approach to IP reflects that. As they die out and are replaced with younger people who have more experience of IP in day to day reality, I expect things to change.

---------- Post added 2013-02-22 at 09:48 AM ----------

Actually, it's breaking it. Borrowing and renting are two different things.

Nope. Exactly the same thing.

[Mosotti]

It's funny how law students believe they are smarter than a whole army of established lawyers. Of course, if someone wants to prove they are smarter than Blizzard when it comes to EULA and TOS and all the other crap, can do a very simple thing to convince me of their genius: sue Blizzard. And win

[Mission]

http://au.gamespot.com/news/blizzard...author-6146692

duno what out come was

another: http://www.pcmag.com/article2/0,2817,2412009,00.asp


there are afew others...

[Jessicka]

They become yours for a time.

You get rights of use and the responsibilities of ownership in exchange for money.

You get rights of use, but you can't sub let and you don't have all the responsibilities of ownership (service/maintainance).

[Seranthor]

For purposes of my contract rule argument, who owns the property is a red herring. I would not be selling you "my account," I would be selling you access to my account. The difference is subtle but important. While we don't "own" our accounts, we do hold a contractual obligation over Blizzard's head for access to the account for the duration of time that we pay. (This falls into the parenthetical note at the end of my last post)

If I am granted access to something I don't own, then under some circumstances, a clause telling me that I can't transfer that access will be enforceable. Under some other circumstances, it will not be enforceable. (This is a very watered down version of the contract rules I am discussing).

Bear in mind these hypotheticals to demonstrate the difference, and I'm not actually looking for answers to the last ones (the closer calls) where I leave the question unanswered. I am using these to demonstrate the range of circumstances in which it may (or may not) be enforceable

Example of where it might be enforceable: RentABook, Inc. rents books out to people on a semester-by-semester basis. Its users log into a website, order the book they want, pay, and receive the book as a bailee (someone without total ownership rights in the book itself) for that semester. RentABook's TOS say that the users may not transfer the book to a 3rd Party (because they have some property rights in the book, just not ownership - their rights are confined to its use for the semester). This would probably survive an unconscionable (unenforceable under the circumstances) challenge because RentABook had no dealings with the 3rd Party and doesn't even know who they are, how to reach them, how to retrieve the book, etc. It makes most sense for who they give the book to to be "on the hook" for its return when the very nature of their business needs the book's return so that they can rent it to someone else the next semester.

Example of where it may not be enforceable: ArtPaint, Inc. has derived a magical formula of paints under a new patent, so they have the sole right to distribute the paint (until the patent's expiration). The TOS on its website contains a clause acknowledging the patent but—in a cheeky move—further states that its users may not transfer the paint to other parties. Bob, an artist, buys the paint then uses it on a canvas to make a painting. The painting is auctioned off for millions of dollars. The non-transferability clause of the paint itself would be unenforceable (unconscionable) as to the painting. Those of the "That's what you agreed to" view would argue "Hey, you can't transfer the paint. That's ours," while analyzing the clause in terms of its "unconscionability" would make that seem laughable because Bob made the painting something of his own.

We are, in many ways, among painters unawares

(consider especially the case of roleplayers, who have an identity associated with a character beyond the items/graphics/etc. in the game)

Example of a closer-call: Istockphoto has tons of images on its site. (I don't know if they actually have a non-transfer clause, I'm just using one in this hypo to demonstrate the grayer area of this type of analysis). Users may buy a license to use those images under certain circumstances, but all circumstances have a non-transferability clause. Ralph buys a license to use an image on three different mediums, but only does so once. He violates the non-transfer clause and sells the remaining 2 uses to his friend Gilbert. Enforceable, may Istock order Gilbert to unmake the 2 mediums he uses the images on (or order him to pay them for it, even though he has already paid Ralph)? Unenforceable, notwithstanding the no-transfer clause, Ralph bought a license to use it 3 times so he is merely using the images his 2nd and 3rd times through someone else?

Example of an even closer call: Basically same facts as above, except Ralph's use of the image is in a Warhol-esque artwork that distorts/manipulates the image by tiling it over and over again in different colors. May Ralph then sell the artwork, or further: may Ralph give Gilbert the license to post the artwork on his website?

Example of an even closer than that call: Same basic setting, except Ralph's use of the image is merely a background to what he paints over. So he buys a picture of a beach, blows it up onto a canvas, then paints people on the beach. May Ralph sell? May Ralph license?

---------- Post added 2013-02-21 at 12:04 PM ----------



As explained in my last post, some times that is exactly what you get to do.

Wouldn't selling 'access' to your account be the same thing as sharing the account, which, as I understand is ALSO covered in the TOU/EULA?

---------- Post added 2013-02-22 at 05:39 AM ----------

Their EULA means nothing in my country. WoW account is mine. I bought it and I can do anything I want with it.

Wrong.... you agreed to the EULA.... the characters belong to Blizzard. period.

---------- Post added 2013-02-22 at 05:40 AM ----------

In a voidable adhesion contract (e.g. EULA), the party without bargaining parity may void the contract at their discretion.

Thats right, its called NOT PLAYING...