Originally Posted by
Nevski
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.