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  1. #21
    How about this. You can argue that you can transfer the account to someone else. That is fine by me. But they can say that you can no longer access the account for any reason that they feel like giving you because it is their account in the end. So wham issue solved you transfer the account, they close the account case closed.

  2. #22
    Quote Originally Posted by Nevski View Post
    This is why I should've said "Only law-yers/students reply please". You just don't get it, lol.
    I'm not a lawyer and/or I'm not studying it, but I'm curious and the guy on the blog write quite easy to understand and try to cut off all the legal mumbo jumbo tbh. Oh and please even if you don't agree with the other poster or it irks you for whatever reason, don't resort to insults. That would be appreciated.

  3. #23
    Quote Originally Posted by Nevski View Post
    I only get negative with those who are negative first~
    Does being negative include disagreeing with you? Because I saw nothing negative up until the contradictory statement of:
    Quote Originally Posted by Nevski View Post
    Not to point any fingers at Rukentuts, who apparently believes that adhesion contracts involve leases and housing contracts.

  4. #24
    Quote Originally Posted by Brazorf View Post
    I'm not a lawyer tbh. Oh and please even if you don't agree with the other poster or it irks you for whatever reason, don't resort to insults. That would be appreciated.
    Yea, I assumed as much. The problem is there are negative nancies on the Internet. It is hard to ask a question without loads of feedback like "LOL BLIZZARD'S LEGAL TEAM STUMPED BY 3RD YEAR LAW STUDENT LOLRITE". So my cordiality took a back seat to certain individuals that did not want to actually talk about the point of the discussion.

    More on point: the website you posted points out that this is a relatively unlitigated area across all MMOs. In some other MMO cases, he mentions lots of settlements. I'm inclined to think right now (from what I've read so far and still am) that the transferability issue hasn't been adequately litigated.

    Adding to the problem is that this would not into Federal Court, so depending on every state's law on both (1) adhesion contracts; and (2) unconscionability of contract clauses, the results would be mixed.

    ---------- Post added 2013-02-20 at 02:33 PM ----------

    Quote Originally Posted by StationaryHawk View Post
    Does being negative include disagreeing with you? Because I saw nothing negative up until the contradictory statement of:
    Yea, you're right. I apologize to Rukentuts. If I was going to be snarky to anyone, it should have been mad_murdock

  5. #25
    Quote Originally Posted by StationaryHawk View Post
    Does being negative include disagreeing with you? Because I saw nothing negative up until the contradictory statement of:
    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 ----------

    Quote Originally Posted by Brazorf View Post
    I'm not a lawyer and/or I'm not studying it, but I'm curious and the guy on the blog write quite easy to understand and try to cut off all the legal mumbo jumbo tbh. Oh and please even if you don't agree with the other poster or it irks you for whatever reason, don't resort to insults. That would be appreciated.
    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.

  6. #26
    The only thing i read from this is Nervski knows the law and the majority of forum posters just assume they know more and it blows up in there face. GRATS Nevski!
    "I hated hating Garrosh before it was cool."
    FOR THE HORDE!!!

  7. #27
    Clarification: not much/any law supporting the arguments either way on this issue (voiding a restraint on trade of a video game account) in terms of actual legal precedent.

    So if/when the case arises, the parties will/would have to argue analogous law not dealing with this specific issue (voiding a restraint on trade of something else)

  8. #28
    Quote Originally Posted by Nevski View Post
    But specifically, I'm talking about the ability to transfer an account to a third party. It's a restraint on alienation of trade - in other words, the argument would say something like:

    "Even if Blizzard retains property rights to the characters themselves, the inability to transfer that licensed access to an account is a void clause of the contract."
    Ok, stop right there.
    What you are wanting to transfer to a third party isn't a license. It's a license with an account access and characters tied to it. Just "transferring a license" would mean after the transfer, the licence could very well have zero characters on it, all stuff purchased (pets etc) removed. Basically, a blank account. Guess very few people would want to buy it then, so what you are sellling isn't the licence, it is the characters however you deny it. Who don't belong to you, end of story.

    Same goes for "I"m selling my play time and not the characters" excuse you often see on ebay etc. It is just false. Here's proof: I'm hereby giving you *all* my past play time. Everything. Oh, passwords ? No, sorry. So play time doesn't do you any good and is not what you are selling. You're selling access to specific characters via using a specific password and relinquishing account control. (in theory. In practice, you can ask Blizzard to get it back and actually scam the buyer.)

    Saying "I'm selling this and not that" doesn't mean what you say is true. You don't sell a licence: you also sell the password and character acces with them because the licence in itself is worthless and nobody wants one except if it ends up paying the game boxes for less than what they retail for.

  9. #29
    Quote Originally Posted by vaestmannaeyjar View Post
    Ok, stop right there.
    What you are wanting to transfer to a third party isn't a license. It's a license with an account access and characters tied to it. Just "transferring a license" would mean after the transfer, the licence could very well have zero characters on it, all stuff purchased (pets etc) removed. Basically, a blank account. Guess very few people would want to buy it then, so what you are sellling isn't the licence, it is the characters however you deny it. Who don't belong to you, end of story.

    Same goes for "I"m selling my play time and not the characters" excuse you often see on ebay etc. It is just false. Here's proof: I'm hereby giving you *all* my past play time. Everything. Oh, passwords ? No, sorry. So play time doesn't do you any good and is not what you are selling. You're selling access to specific characters via using a specific password and relinquishing account control. (in theory. In practice, you can ask Blizzard to get it back and actually scam the buyer.)

    Saying "I'm selling this and not that" doesn't mean what you say is true. You don't sell a licence: you also sell the password and character acces with them because the licence in itself is worthless and nobody wants one except if it ends up paying the game boxes for less than what they retail for.
    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.

  10. #30
    Quote Originally Posted by vaestmannaeyjar View Post
    Ok, stop right there.
    What you are wanting to transfer to a third party isn't a license. It's a license with an account access and characters tied to it. Just "transferring a license" would mean after the transfer, the licence could very well have zero characters on it, all stuff purchased (pets etc) removed. Basically, a blank account. Guess very few people would want to buy it then, so what you are sellling isn't the licence, it is the characters however you deny it. Who don't belong to you, end of story.

    Same goes for "I"m selling my play time and not the characters" excuse you often see on ebay etc. It is just false. Here's proof: I'm hereby giving you *all* my past play time. Everything. Oh, passwords ? No, sorry. So play time doesn't do you any good and is not what you are selling. You're selling access to specific characters via using a specific password and relinquishing account control. (in theory. In practice, you can ask Blizzard to get it back and actually scam the buyer.)

    Saying "I'm selling this and not that" doesn't mean what you say is true. You don't sell a licence: you also sell the password and character acces with them because the licence in itself is worthless and nobody wants one except if it ends up paying the game boxes for less than what they retail for.
    First: Wrong - a license is exactly what I'm wanting to transfer. Everything you said is exactly what I would be trying to sell as a license. In fact, the terms "license" and "service" are the magical buzz words that Blizzard uses to defend this. What you get by entering into a contract with Blizzard is license to access their databases/servers with a specific account. In Basic Contract terms, you give a promise to pay in exchange for a promise to access everything associated with that account for a specified period of time. So you pay, and then you get access. Contract completed at the expiration of the time. Blizzard's argument = This is a non-transferable license, and you consented to it not being transferable. Therefore, you may not transfer/sell your license to that account. Counter-argument = That is an invalid restraint on trade (jargon = "alienation of trade") because I should be able to freely trade that license. Therefore the clause is not enforceable and I can transfer my account.

    Second: Because I'm talking about it contract terms (not property), your "what I'm selling" discussion is also misplaced. (As with Rakentuts, you're missing the call of my question: the problem is in the nature of the clause itself. Its very existence is arguably not enforceable under contract law.) For starters, you're misconstruing what I'm talking about selling entirely. I'm not talking about selling my play time that I've invested in the character. I'm saying I should be able to assign (contract jargon for "transfer") my interest in my contract with Blizzard to someone else. My state courts, at least, will harshly construe an adhesion contract (which is an EULA because one party has all the bargaining power, i.e. Blizzard)'s restraint on alienation (which is what the EULA clause is that says you can't transfer it) against the drafting party. In other words, they have to make a very sound argument for the clause to not be deemed unconscionable (contract jargon for unenforceable). It's only at this point in the analysis that the points you are talking about even come up.

    And at this point, the court would be weighing the impact that this type of transfer would have upon the service offered (i.e. the WoW community) against the account holder's interest in being able to transfer her account. In light of (1) no bargaining parity—the adhesion contract, i.e. we can't realistically negotiate with Blizzard to try to let us make our account transferable; (2) complete alienation of trade—I am provided access to something but can't sell that access; (3) minimal existing empirical data favoring the non-transferability clause—i.e. what would happen if we could all sell our accounts? how much money would Blizzard make from the sales of new accounts in contrast to the amount of money they would make by allowing an account that would otherwise be dead to live under someone else's name; and (4) good policy arguments against the clause's enforceability—hey d00dz, we put in s0 much tymez on our characterz!~~/! . . . . . . . I would be hard pressed to find a court (at least in my state) upholding the clause if specifically challenged.

  11. #31
    Quote Originally Posted by Nevski View Post
    I would be hard pressed to find a court (at least in my state) upholding the clause if specifically challenged.
    In which case, why don't you try it out yourself? Actually make some case law . Looking for a thesis?

    Would you be able to force them to transfer the contract, if not what sort of damages would you expect for 'restraint of trade'?

    I don't think you'll find much support or reasoned debate here. There are plenty of cases where I wouldn't expect something similar to occur (eg attempting to transfer your gym or golf club membership to a third party) and others cases where it might.

    There are other parts of the agreement that are perhaps more dubious -cancelling the contract at their whim would be one you'd have to deal with first. Not much point in trying to asking them to re-assign your 'licence' if they can respond by cancelling your contract with them.

  12. #32
    Nev, I have a question. If I decided to put into our ToS/EULA that any websites created (your character) using our site builder (WoW) is our property, would that be binding and enforceable? Granted very few people would agree to something like that because it's not the norm in the hosting industry but I don't see how it would be any different really.

  13. #33
    Quote Originally Posted by Nevski View Post
    Wrong. You don't need to have property rights for a restraint on alienation to void a clause of a contract.
    On what grounds do you think you can transfer something you don't have the rights to?

    Furthermore, Blizzard is entitled to terminate the license at any time for any reason, or no reason. That would include even if you forced them to transfer the license. They can just terminate it anyway.

    You say that you should be able to transfer the license. Why? "Because I think I should be able to" is really a good enough reason, according to your law training?
    Last edited by Dreyo; 2013-02-21 at 03:37 PM.

  14. #34
    Quote Originally Posted by Nevski View Post
    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.
    How can you sell access to "my account" when it's not your account to begin with? The ONLY (and maybe this is ultimately all you're trying to prove) thing I could POTENTIALLY see "holding up" in an argument is you are selling your cd-key (license if you want to call it that) and not the content of the account, because you don't own the account. You own the physical/digital software, which sure you can sell, but you can't sell something you don't own.

  15. #35
    Quote Originally Posted by Nevski View Post
    (2) complete alienation of trade—I am provided access to something but can't sell that access
    Why do you get to sell something you don't have the rights to? You're asking to be able to make money off of Blizzard's intellectual property. You don't get to do that without their permission, sorry. Complete alienation of trade is, to borrow a Blizzard term, working as intended.

  16. #36
    Quote Originally Posted by Dreyo View Post
    Why do you get to sell something you don't have the rights to?
    Yea, I just don't get why these people think that just because you have access to something somehow you are able to relinquish and then sell YOUR access. In this case, Blizzard didn't specifically enter into an agreement between themselves and the third party you are selling your access to.

    I think it's pretty apparent the reason NO company wants to allow you to (at a basic business level) sell "accounts". Primarily because you don't "own" a service. Secondly because you aren't buying the "account" when you pay for the software. The ultimate reason though? They are losing out on the money it would take someone to buy the game + all expansions, as well as the time invested to reach level 90 and acquire the same gear level you had (monthly sub fees), etc.

    ---------- Post added 2013-02-21 at 10:49 AM ----------

    Quote Originally Posted by Dreyo View Post
    Why do you get to sell something you don't have the rights to? You're asking to be able to make money off of Blizzard's intellectual property. You don't get to do that without their permission, sorry. Complete alienation of trade is, to borrow a Blizzard term, working as intended.
    Technically speaking though, I'm surprised how any gameplay videos are able to be monetized from YouTube, or Twitch or anywhere else really. Unless the game companies get a cut of the revenue it's the same thing really, people making money off of someone elses property.

    Hell, I remember when I put up videos it used to ask if it was my original work in the video and no copyrighted material.
    Last edited by alturic; 2013-02-21 at 04:00 PM.

  17. #37
    Quote Originally Posted by ct67 View Post
    In which case, why don't you try it out yourself? Actually make some case law . Looking for a thesis?
    Because you have to actually have standing to sue. In other words, I have to be trying to sell my account to sue Blizzard for an injunction to permit the transfer. I'm not trying to do this, and trying to make litigation/case law up without a party trying to take action = against our code of ethics (insert lots of jokes about a lawyer's code of ethics here).

  18. #38
    Quote Originally Posted by Nevski View Post
    Because you have to actually have standing to sue. In other words, I have to be trying to sell my account to sue Blizzard for an injunction to permit the transfer. I'm not trying to do this, and trying to make litigation/case law up without a party trying to take action = against our code of ethics (insert lots of jokes about a lawyer's code of ethics here).
    You're not a lawyer though (yet?). I presume you have some interest in WoW - why can't you try to sell your own account and see what happens?

    If you were a lawyer then lawyers over here are always advertising for potential client - "think you've suffered whiplash?", so why not "Tried to sell your WoW account and Blizz refuses? Call us!".

    Because unless this goes to court the whole argument is pointless. You can assert whatever you like but a court decides it's just an opinion.

  19. #39
    Nevski - All you need to say in reply to these people is:

    "Lawyered"

    I want to become a Lawyer just so that I have the right to use this phrase...

  20. #40
    From my understanding this is why blizzard states you don't own the actual account but you own the CD key. Because if you owned the actual characters, digital data, etc then you could sue for denial of access to your characters every time blizzard would do an update and if they closed your account.

    Which is why you agree to Terms of service BEFORE the eula
    Last edited by pimpeddakota; 2013-02-21 at 04:35 PM.
    ...Made it through 9 years of wow...

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