Drawn into the backdrop here, you could fade, you could fade away
Bright lights on a starless night, then I howl in the dying day
Looking at life through a loaded gun, take your best shot, aim it at the sun
Looking at life through a loaded gun, you'll know you find...
you'll find yourself, you'll find yourself alone...
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.
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.
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?
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.
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)
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 ----------
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.
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.
---------- Post added 2013-02-21 at 12:20 PM ----------
It is a pointless argument. It is a discussion thread! POINTLESSNESS BE DAMNED
---------- Post added 2013-02-21 at 12:23 PM ----------
---------- Post added 2013-02-21 at 12:28 PM ----------
---------- Post added 2013-02-21 at 12:29 PM ----------
Their EULA means nothing in my country. WoW account is mine. I bought it and I can do anything I want with it.
---------- Post added 2013-02-21 at 12:38 PM ----------
In a voidable adhesion contract (e.g. EULA), the party without bargaining parity may void the contract at their discretion.
(but I'm at least considering the EULA as applicable and arguing a term may be unenforceable)
Oh, and five seconds of googling turned up this:
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.
Last edited by Dreyo; 2013-02-21 at 07:08 PM.
---------- Post added 2013-02-21 at 01:17 PM ----------
---------- Post added 2013-02-21 at 01:20 PM ----------
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."