EULAs and WoW in Contract Law + Account Transferability

[Crysthalica]

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."

(I am setting aside issue of whether the players are gaining property interests in their accounts based on the hours they play under property law. Merely addressing that clause from an adhesion contract standpoint + restraint on alienation)

I didn't read the whole thread and I'm no lawyer (or law student for that matter), but even if a court would rule that account access to a third party should legally be allowed, Blizzard could still just terminate the account in question, as Blizzard are allowed to terminate any accounts for no reason without notice, which it says in the EULA (or ToU or w/e).

[Hyve]

The servers are their property, as is everything contained within it. The EULA states very clearly that the whole process of you making payments lets you access these servers. From day #1, we've never owned anything.

[Nevski]

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.

TLDR version: There are two different concerns here which are entirely different analyses: (1-Alturic's point) at what point does the provider of a service lose property rights otherwise gained through a clause stating that its users' input becomes the rights of the provider?; and (2-Nevski's point) under what circumstances does a non-transferability clause lose enforceability?

I see the analogy, and it's entirely appropriate to some degree but a little misplaced. (What I mean by that is that it's an entirely valid analogy on a point other than the one I'm making). I'm going to first start with what I feel is the better analogy, then address your point in the context of the point I'm making, then address your point in the context proposed by you.

First: the host faces an uphill battle concerning any content written by the customer. Think about a blog. Blogspot can retain all the intellectual property in the world concerning their designs and layouts and code and so on. But when I rant about my day on my blog, they would have a difficult battle to uphold a clause in their EULA/TOS retaining all property rights to my ranting. (They don't, but this is a hypothetical). So then if I published my blog elsewhere and they tried to sue me over it, I would likely win because they didn't really (sorry, jargon necessary here in quotes) "bargain for" the right to have those property rights. "Bargained for" means that there's a quid pro quo between each party, and a court would most likely find it unconscionable (i.e. unenforceable clause) for a free provider to gain rights to someone else's content. Why? Because all the user is receiving a service (getting the content online where other people can read it), that service is not a fair exchange for what Blogspot would get (all the property rights to all of its content from all of its users). Note: the "but that's what you agreed to argument" does not apply because the argument I am talking about is, in the simplest words I can think of at this point in the morning, "Although I agreed to it, that clause is nevertheless unenforceable." (Which is what most people were missing the mark on earlier)

Second: the analysis goes like this: look at the nature and context of the arrangement between the Provider (MMO-C Hoster) and Providee (Me making site for my guild). Now, to make this analogous to my question over the clause: Providee (me) would, for example, either quit WoW while my guild continues or someone else would simply take over making payments for me. The question then is: can I let someone else take over and log into my account? (This is why I felt it was a little misplaced). The question is not about whose property rights are in the content. The question is can I assign my rights to use the MMO-C service to someone else. Can my guildy log into my account, use the site builder in my name, and pay for it herself? This is the focal point of the "Why can't I transfer" argument. In determining whether the clause is unconscionable in this case, like the Blogspot hypothetical, the court would have to balance all the content/coding/etc. that is the offspring of MMO-C against all the content entered by the user. So if MMO-C was saying "You can't go to another host and copy/paste what you entered here originally, Ms. Guildy-That-Wants-to-Take-Over-What-Nevski-Was-Doing," it would most likely lose (see Blogspot hypo above for why). If MMO-C was saying "You can't use Nevski's account as though it was your own," then it becomes a much grayer area where both sides have to argue about the ramifications of allowing this type of transfer to occur. Ultimately in the latter situation, the best analogy would be to an individual (Guild-Member that is Customer of MMO-C) within an organization (guild) holding the rights to that organization's (guild's) website and not being able to give it to the organization (guild) or another member within (other guildee). That outcome would be very undesirable because it affects the rights of other parties associated with the organization (another reason why I don't feel it's a very good analogy: because in the instant situation/question about transferring an account the concern is just over an individual to an individual and nobody else really has any interest in the account other than those people, unlike in the case of hosting a guild website).

Finally: As with the Blogspot hypothetical, it would certainly be enforceable to some degree, but it would also lose enforceability to some degree. All the coding would obviously remain MMO-C's. The layout/design/templates/etc. would all remain MMO-C's. If there is any drafted generic word content that the user decides to use, that would be MMO-C's. Consider this example for how it would lose enforceability, though: if I were to make a website through MMO-C and write my own elaborate guild policy, then leave MMO-C and repost my guild policy with New Host, then MMO-C told me to take it down, I would probably prevail and get to keep my policy up. If, however, I were to remake my website I made with MMO-C so that it looks exactly the same (or substantially the same in terms of layout/etc.), then I would have to take down/remake my website in a way that doesn't look like I just ripped off MMO-C.

[Hyve]

I didn't read the whole thread and I'm no lawyer (or law student for that matter), but even if a court would rule that account access to a third party should legally be allowed, Blizzard could still just terminate the account in question, as Blizzard are allowed to terminate any accounts for no reason without notice, which it says in the EULA (or ToU or w/e).

But in almost any court no Judge would rule that. Despite what the law may say, Blizzard are a company and also have certain rights, and one of those rights is to retain control of their property, which your character is. As you said, if in a completely retarded manner a Judge did over-rule this, they'd just delete the account and information.

[Goik]

Just a quick question, is the "I can terminate you license at any time without a refund" enforceable?? just imagine this:
You want to go to this new gym. the gym owner say: pay me 20bucks a month and you can use my gym, but at any time, i can tell you to never come back and that's it!
you agree because you really want to go to that gym, after 3 days the gym owner tell you to fuck off show you the contract that you accept saying that he can do it and that's it.
this picture, is legit?

[yjmark]

Isn't it the same way how companies retain the IP rights for things you develop while being an employee? Ex - I work for company X, and while working there I develop Product X. Can I just take Product X, and sell it to Company Y because I put the "time and effort" into it? My understanding is "not without company X's approval". But I also have 0 legal experience, so I have no idea.

[Nevski]

On what grounds do you think you can transfer something you don't have the rights to?

See post above re: Alturic. The contract rule I'm talking about is a "restraint on alienation," or inability to transfer something. The rule doesn't say that this type of clause is per se unenforceable. The rule says that this type of clause may be "unconscionable," or unenforceable in light of all of the circumstances of the arrangement (i.e. argue about whether you should/shouldn't be able to transfer it because of the user's spent playing time, impact on server economy, impact on Blizzard's business model, and so on).

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.

Under certain circumstances, this clause would be subject to the same kind of scrutiny as the clause I'm wanting to talk about. So I don't want to get into it because it is not the focal point of post. But to briefly touch on it and hope it doesn't spin out of control, one hypothetical situation that might arise would give a Plaintiff an argument that would go something like:

The termination clause is unenforceable because it is unconscionable. It is unconscionable because I have been playing with all of my friends happily for years and years and everyone on my server knows me and they all love me. I have not done anything wrong and Blizzard has not said I did anything wrong. They just terminated my account willy nilly. I did not have bargaining parity with Blizzard in agreeing to their EULA, so the clause should be harshly construed against them in this analysis. In turn, Blizzard has to provide a reasonable cause—rather than no cause or a bad cause—for terminating my account.

(If you really wanted to make it juicy, imagine some disabled person whose only "life" is in WoW, and their account was terminated without cause despite using the same account and character for over 5 years)

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?

I'm not saying that I should be able to transfer the license. I'm asking (Jargon version first) "Shouldn't we be able to transfer our accounts under contract law principles? Specifically, the restraint on alienation in an adhesion contract would void the non-transferability clause because it would be unconscionable for an entity to disallow that transfer where its customers are actually making something (here, a character) that would not otherwise be made." (Non-Jargon Version) "It's the very nature of putting work into something on this grand of a scale that would belie the notion that I would not be able to transfer the access to that work to someone else." Note: I'm considering this entirely within the scope of Blizzard retaining the property rights to the characters/etc. (I feel I am being repetitive saying this, but I have to say it in every post: It doesn't matter if Blizzard has the rights to the property to make a sound argument that the non-transferability clause is unenforceable).

[ct67]

Wrong. I'm not saying the EULA itself is invalid, but portions thereof. (Which raises another issue because most states will only nix out invalid portions of a contract and attempt to keep the parties intent constant. A minority of states, including my own, would deem the whole contract void. And a click-through agreement such as an EULA is deemed a contract.)

So you are saying that potions of the EULA are invalid and that in your state this would deem the whole contract void.

What rights do you retain under a voided contract?

[Nevski]

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.

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 ----------

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.

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

[Laylie]

If you have a smart enough lawyer in some cases regarding the EULA you can get around it. One because some say that it is unjust because you can't accept the EULA until you purchase the game and if you want to decline it you can't return it. Two in other countries like in the EU they have protection rights which go above Blizzards EULA.

[Nevski]

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.

This is specifically what I said would be a factor (among many others) in determining whether the no-transfer clause as enforceable.

This particular one is in favor of the clause being enforceable (and therefore surviving the unconscionable challenge).

Plaintiff would argue, however: "But if the account is going to die, then Blizzard will not continue to derive revenue from the account. If starting from level 1 is a dealbreaker for the 3rd Party to whom I want to sell my account to, then Blizzard never derives that revenue from the game/expansions of newly created account. In turn, Blizzard loses out on monthly fees *and* the CD keys." This argument would be most persuasive in terms of an already-existing player that wants to have an additional account because it circumvents Blizzard's next argument that I state below.

Blizzard would next say "But that fundamentally changes our business model. Even ignoring that we would only realize opportunity cost between the lost existing and would-be new customers, the fact is that it would negatively impact our game because there would be an influx of unknowledgeable and inexperienced players, therefore making the gaming experience more undesirable for already existing users with that knowledge and experience." But, as I said above in italics, this argument would lose strength for a well-established and knowledgeable player.

[Nevski]

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.

Another factor to consider in whether the clause is unconscionable. If the purpose of the clause is to prevent others from making money off of Blizzard's property, then trying to serve those ends in a limited situation (but not others) raises more doubt about the clause. However, I don't think that's really the sole purpose. I think the purpose is also related to maintaining a certain environment within the game that would be impacted by allowing account transfers. The twin-aims are a stronger argument for Blizzard, but a stronger argument doesn't mean there are not equally as strong arguments to the contrary.

---------- Post added 2013-02-21 at 12:20 PM ----------

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.

Our lawyer "ethics" apply to us upon being law students. And I don't want to sell my account

It is a pointless argument. It is a discussion thread! POINTLESSNESS BE DAMNED

[thevoicefromwithin]

Under certain circumstances, this clause would be subject to the same kind of scrutiny as the clause I'm wanting to talk about. So I don't want to get into it because it is not the focal point of post. But to briefly touch on it and hope it doesn't spin out of control, one hypothetical situation that might arise would give a Plaintiff an argument that would go something like:

The termination clause is unenforceable because it is unconscionable. It is unconscionable because I have been playing with all of my friends happily for years and years and everyone on my server knows me and they all love me. I have not done anything wrong and Blizzard has not said I did anything wrong. They just terminated my account willy nilly. I did not have bargaining parity with Blizzard in agreeing to their EULA, so the clause should be harshly construed against them in this analysis. In turn, Blizzard has to provide a reasonable cause—rather than no cause or a bad cause—for terminating my account.

(If you really wanted to make it juicy, imagine some disabled person whose only "life" is in WoW, and their account was terminated without cause despite using the same account and character for over 5 years)

This whole crap however crumbles like a house of cards when the main motive and step one of the whole case was to transfer the account to a different holder. Get back to us when you advanced your "law studies".

[Nevski]

I didn't read the whole thread and I'm no lawyer (or law student for that matter), but even if a court would rule that account access to a third party should legally be allowed, Blizzard could still just terminate the account in question, as Blizzard are allowed to terminate any accounts for no reason without notice, which it says in the EULA (or ToU or w/e).

If a Plaintiff won an injunction against Blizzard to allow the transfer, they would likely be equally as successful in challenging the "for no cause" portion of the termination clause.

---------- Post added 2013-02-21 at 12:23 PM ----------

But in almost any court no Judge would rule that. Despite what the law may say, Blizzard are a company and also have certain rights, and one of those rights is to retain control of their property, which your character is. As you said, if in a completely retarded manner a Judge did over-rule this, they'd just delete the account and information.

I got docked with a warning or something on my account for calling someone an idiot. I can only hope this person receives equal repercussion.

---------- Post added 2013-02-21 at 12:28 PM ----------

Just a quick question, is the "I can terminate you license at any time without a refund" enforceable?? just imagine this:
You want to go to this new gym. the gym owner say: pay me 20bucks a month and you can use my gym, but at any time, i can tell you to never come back and that's it!
you agree because you really want to go to that gym, after 3 days the gym owner tell you to fuck off show you the contract that you accept saying that he can do it and that's it.
this picture, is legit?

The gym would probably prevail in terms of disallowing the access, but the member would have a solid cause of action to get his money back. (Might lose, might win, but there is a very solid legal argument against the gym's retention of the monthly fee without refunding the client his $ for however many days went unused. The more likely way that the Gym wins across the board is if the Gym cancels the membership at the end of a billing period. I.e. 3 days in the gym says "You ain't coming back after this month")

---------- Post added 2013-02-21 at 12:29 PM ----------

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...

We use it in caps and with a hash tag. But yes. Entirely worth it.

[Blapis]

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

[Nevski]

Isn't it the same way how companies retain the IP rights for things you develop while being an employee? Ex - I work for company X, and while working there I develop Product X. Can I just take Product X, and sell it to Company Y because I put the "time and effort" into it? My understanding is "not without company X's approval". But I also have 0 legal experience, so I have no idea.

That's correct, and that's the way it works, but that's not analogous to this situation. You need to create a situation in which someone has a right to access Product X while at Company X. In accessing the product, he derives benefit (personal enjoyment) from using the product, then wishes to transfer that right of access to someone else.

---------- Post added 2013-02-21 at 12:38 PM ----------

So you are saying that potions of the EULA are invalid and that in your state this would deem the whole contract void.

What rights do you retain under a voided contract?

I left out a very important suffix: voidable.

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

[Dreyo]

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

The burden is on you to prove that this is one of those times, not for us to prove that it's not. Please explain how you have any justification for thinking you should be able to sell your access to Blizzard's property.

[Nevski]

If you have a smart enough lawyer in some cases regarding the EULA you can get around it. One because some say that it is unjust because you can't accept the EULA until you purchase the game and if you want to decline it you can't return it. Two in other countries like in the EU they have protection rights which go above Blizzards EULA.

Yep. There is a host of litigation with mixed results over things like an EULA. And they question not the enforceability of the EULA terms but the applicability of the EULA itself.

(but I'm at least considering the EULA as applicable and arguing a term may be unenforceable)

[Dreyo]

Oh, and five seconds of googling turned up this:

http://www.ca9.uscourts.gov/datastor...0/09-35969.pdf

9th Circuit Court of Appeals says that EULAs are enforceable. If the company says you can't transfer the license, you can't transfer it. Discussion over, I guess? I really don't see this going up to SCOTUS.

[Nevski]

This whole crap however crumbles like a house of cards when the main motive and step one of the whole case was to transfer the account to a different holder. Get back to us when you advanced your "law studies".

Step one of the whole case is not transferring the account to a different holder. You are muddying up the issues that I tried to distinguish at the outset of Post #43. I'm concerned with point 2 over a license to access.

---------- Post added 2013-02-21 at 01:17 PM ----------

The burden is on you to prove that this is one of those times, not for us to prove that it's not. Please explain how you have any justification for thinking you should be able to sell your access to Blizzard's property.

I'm not going to regurgitate all my posts saying that challenging a clause as unenforceable means that you have to look at a whole bunch of factors in each party's favor and weigh them. But you can read all of my posts prior addressing these factors, which include but are not limited to: the amount of time a person spends on the account, the association with a character's identity, the impact on the WoW environment were it allowed, the impact on Blizzard's business model were it allowed.

---------- Post added 2013-02-21 at 01:20 PM ----------

Oh, and five seconds of googling turned up this:

http://www.ca9.uscourts.gov/datastor...0/09-35969.pdf

9th Circuit Court of Appeals says that EULAs are enforceable. If the company says you can't transfer the license, you can't transfer it. Discussion over, I guess? I really don't see this going up to SCOTUS.

Oh, and five seconds of googling turned up this:

http://www.ca9.uscourts.gov/datastor...0/09-35969.pdf

9th Circuit Court of Appeals says that EULAs are enforceable. Discussion over, I guess?

Wrong. (1) 9th Circuit is not the only Federal Court of Appeals, which are prone to developing "circuit splits" (disagreements); (2) That case has only been cited by 12 other federal courts, all of which were N.D. California (within the 9th Circuit therefore bound to follow it, unlike every other federal circuit court of appeal and district court). These district courts were bound to follow it and did, and district courts offer little meat in terms of precedent. (3) "The first-sale and exhaustion doctrines do not deal with or limit the enforceability of contractual terms. Indeed, the reverse relationship exists: the terms of the contract determine when or whether a first sale or sale establishing exhaustion of the patent occurs." Modern Licensing Law § 2:37. The question in that case was whether the first-sale doctrine applied to a licensee (held: did not), not whether the non-transferability clause of the contract was unconscionable.

And for funsies: (4) Case that you propose is leading when it does not address my unconscionable argument? Well, it comes from the most overturned Federal Circuit in the United States. A 1991 Supreme Court Clerk's memo even wrote, "This case arises from the 9th Circuit, but there are other reasons for reversal."