EA Sued

By Shamus
on Sep 25, 2008
Filed under:
Video Games

Many people have emailed me links to various sites talking about the lawsuit against EA over the DRM is Spore.

I don’t actually have much to say about it, because the sites I’ve read talk about the existence of the suit, not the nature of the thing itself. Does the plaintiff have a case? Will it hold up? Will EA even care or notice? Gosh. I dunno. Beats me.

In truth, I’d much rather EA just came to its senses and abandoned this nonsense, rather than trying to make them change their ways in court. The former is much more likely to lead to lasting, productive change.

Morally, she has a point: The customer should be made aware of SecuROM prior to purchase. I don’t object to EA’s right to make whatever idiotic software / DRM they like, but the customer needs to know what they’re getting into. But morality has only a loose connection to what goes on in civil suits.

We’ll see where this one goes.

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201838 comments. Hurry up and add yours before it becomes passé.

From the Archives:

  1. Eric says:

    I think she’ll win, but not get any money. I believe finally other publishers will hopefully wakeup, Because we all know they are not going to put securom on the box, and the dangers it entails for the consumers.

  2. Illiterate says:

    I don’t know if the EULA has language wherein the user gives up the security of their computer system. I don’t know that one could legally agree to that. Of course, I don’t know that there is any legal right to not have a computer program damage your system. IANAL.

    Is there any legal right to not have your computer compromised by software you choose to install? It’s not an invasion because you purchased it. I imagine the argument would be that SecuRom is an extra piece of malware, trojanned in and not necessary to the functionality of the product purchased.

    It is not necessary, let me repeat that. The existence of cracked versions of the game prove this. The only part that probably doesn’t work (online play) could just as easily be regulated by linking it to a login and serial number scheme.

    I considered emailing you about this one, Shamus, but then I decided to post to the right vs privelige thread. Eric beat me to the punch.

  3. Zukhramm says:

    DRM IN Spore, I think it’s supposed to be.

    And well, we’ll so how this goes.

  4. Deoxy says:

    But morality has only a loose connection to what goes on in civil suits.

    If that.

    This suit, if it gets past summary judgement/other obvious legal hurdles, will likely hinge on court’s acceptance (or lack thereof) of the legality of the EULA (which I’m sure has the SecuROM thing covered in it somewhere).

    Which means that it will likely be settled, one way or the other, so as to prevent that ruling from coming down – the big software companies don’t want any actual rulings on that, as it is not likely to go in their favor.

  5. Daemian Lucifer says:

    Im surprised that this took so long.Securom has been doing this for ages,and got away with it.Why didnt it happen like with sony,a massive lawsuit and the verdict for them to return all the money to customers?Gaming industry needs this in order to make beat some sense into those idiots.

  6. Mari says:

    So far court decisions have been mixed on whether or not terms in a EULA (which consumers can’t get to without having already spent their money and opening the box)constitute a legally binding document. I think this suit has the potential to raise that issue into a broader public consciousness but beyond that…I guess we’ll see what we see.

    I did recently have the distinct pleasure of putting a few of the “I don’t care about DRM” crowd off of it. Not through moral arguments but by making them aware of the security and integrity issues with SecuROM.

  7. Considering the cluelessness of judges in this sort of thing I would be surprised if the judge even UNDERSTOOD the ramifications and the possibilities and why DRM in general is bad.

  8. João says:

    Here is a PDF with the Class Suit filing.

    From what I read there, it seems SecuROM is guilty of killing or maiming a lot more Windows instalations than I thought…

  9. Kevin says:

    My vote is for trial by combat, on a series of ledges, with various weapons hanging by chains. The more powerful weapons would be higher up and require combos of running/jumping/lawyering to obtain.

    The winner gets to eat Spore.

  10. Factoid says:

    From the Spore EULA:

    EA DOES NOT WARRANT AGAINST INTERFERENCE WITH
    YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SOFTWARE WILL MEET
    YOUR REQUIREMENTS; THAT OPERATION OF THE SOFTWARE WILL BE
    UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFWARE WILL BE
    COMPATIBLE WITH THIRD PARTY SOFTWARE OR THAT ANY ERRORS IN
    THE SOFTWARE WILL BE CORRECTED.

    Nice. So they include third party software along with their title, but they don’t warranty any compatilibity with it.

    It goes on to NOT mention at any point any copy protection software required to be used in conjunction with their system. I guess that means it’s not against the rules to disable securom?

    What is REALLY fascinating is that they include in their EULA several pages describing the licensing of EVERY OTHER third party software used in making spore. Usually things like OpenSSL, GNU C libraries and whatnot. It’s not surprising they included references to open-source projects they benefited from…but it is kind of surprising that amongst them is not one single mention of SecuROM licensing.

  11. Veylon says:

    The EULA system really can’t stand up legally as is. What I’d expect see from such a case is something like the following:

    1) EULAs must be agreed to by the customer at time of purchase to have any legal value.
    2) DRM must be clearly and correctly labeled on all software.

    That way, companies can continue to use EULAs and DRM with the full legal protection that they so desperately crave, while consumers are officially informed they are getting into before they pay for something.

  12. Rim says:

    Though I enjoy bashing EA just a much as the next guy, I don’t understand why folks don’t just return the game instead of spamming the EA forums and filing lawsuits. It may be tricky to get a retailer to accept the return, but over here at least they’re obligated to do so by law. By returning the game you:

    1) Get your money back
    2) Hit EA where it hurts most
    3) Send a message in terms their marketing may understand

    I fully agree that DRM is Evil, but since when has public virtual outrage really had a lasting effect on a publisher, or anything else for that matter? I posted this same question over at my favorite forum where it earned me some flak, but I’m genuinly curious why there isn’t a massive wave of returns when there are so many people (rightfully) complaining.

    And after all, if a retailer refuses to take back the game since it has been devaluated by the limited activation thing, you’d really have something to whack them over the head with.

  13. Fosse says:

    I think that the problem with the lawsuit is that its claims seem verge on “It makes my computer explode on purpose.” It seems to be stretching the claims it’s making, while simultaneously ignoring claims that might have more compelling legal footing.

    I was really excited when I saw the lawsuit announced, thinking that someone was rightfully taking issue with software that could be rendered useless this afternoon if EA chooses to take down its servers. But it’s really more of a list of SecuROM horror stories and it’s using some of the Amazon carpet bombing as source material. So much of the suit seems to be easy for a responsible judge to throw away.

    The best outcome I can see coming from this particular suit is the judge says, “okay, you have to explicitly state that you’re including SecuROM on the box from now on.”

    It just seems to miss the point.

  14. James says:

    Here’s a new and horrifying, but predictable turn of events.
    http://blogs.zdnet.com/hardware/?p=2658
    With any luck this will get people’s attention, this system is not just an ineffectual anti-piracy measure, it’s a way of selling you something on a string that the publisher can pull on to yank it away at any time. Combined with abusive EULA’s, you can no longer actually have any rights with regards to software you buy.
    The idea that lawsuits will have any effect against that sort of thing, where one way or another you sign away whatever rights you may normally possess, is almost laughable. But laughable in a hysterical sense, rather than an amused sense. Be afraid.

  15. whitehelm says:

    Rim: In the U.S, retailers do not accept returns of opened software, period.

  16. Burning says:

    @ #12

    In regards to this lawsuit, if you’ve installed the game you’ve got the SecuROM on your computer and you are not getting rid of it. Now if (a)the EULA describes SecuROM accurately and (b)you have to agree to the EULA before SecuROM is installed, then I think the lawsuit will have problems. The lawsuit as I understand it is not challenging the validity of the EULA or EA’s right to include DRM. It is asserting that EA is not sufficiently describing what their DRM measures entail for consumers to make an informed decision, and that specifically the installation of SecuROM has ramifications to the user beyond what it means for the game.

    So if you can’t know that you are getting SecuROM and what that means even after reading the EULA, and you’ve installed the game on your machine, being able to return the game to the store in no way addresses the problem.

    Anyone have access to the EULA and can say if it includes the information?

  17. Veylon says:

    Whitehelm: This is why it might be better to talk to retailers about this. They deal with customers more directly than software developers do and have to deal with the headaches but none of the benefits of DRM, and they also have great power over the developers.

    Wal-Mart has already banned Adult Only rated games. If they required DRM to be labeled or banned outright, it would have a big impact. And they could advertise.

  18. Veylon says:

    Spore’s EULA readable here.

  19. Strangeite says:

    I have looked into this issue (including actually reading the EULA for Spore) and there is a situation wherein consumers would win their lawsuit; but, not in the way many of us would like.

    The EULA gives EA legal cover; however, it is only disclosed AFTER the actual monetary transaction has occurred. So, if you buy Spore from your local Meglomart, take it home, open the package, start the installation and finally get the EULA. At this point if you read the EULA and find out that you actually don’t agree to their terms, you can try and return the game to Meglomart. Obviously the Meglomart employee making $10 an hour is going to say “Sorry Charlie. Our policy states that you cannot return an opened game for cash or store credit; however, I will be more than happy to exchange it for the same game.” Obviously this is unacceptable to you. At this point, you could file a small claims lawsuit, sue for your money back, and compensation for any lost time that you incurred trying to rectify the situation.

    There is no judge in the country that would not side with you in that situation. But the moment you hit “I agree” on the EULA, you provide EA with the legal cover they need.

  20. Illiterate says:

    If you post another thread, we will force you to buy the game over again to play

    As I just posted on my blog, I don’t know that I will ever want any of my money going to EA again.

    That is, unless they can figure out a way for me to download rockband tracks on my Wii.

  21. Sesoron says:

    I love the fact that the phrase “fancy-pants” appears in that court document pdf. Classic.

  22. Deoxy says:

    But the moment you hit “I agree” on the EULA, you provide EA with the legal cover they need.

    That’s not actually known – EULAs are fairly questionable, legally speaking, for several reasons, and their track record in actual cases is spotty… but there haven’t been many cases that actually touched on it that get to trial, so it’s hard to know how things will actually be ruled.

    By first principles, it is quite clear that EULAs (as currently implemented) are a legal nullity (the sale is already completed), but the courts don’t always A) do what is known to be right or B) understand issues that they are willing to rule on anyway.

  23. Strangeite says:

    “That’s not actually known – EULAs are fairly questionable, legally speaking, for several reasons, and their track record in actual cases is spotty”

    That is true, but the problem is on what side of the fence the legality of EULA would fall. My above example is for providing an example of the legal action that an individual could take on their own. To seriously challenge EULAs in general, you are looking at a Herculean effort. If I could devote twenty-four hours a day, seven days a week to the effort, completely pro-bono, it still would be the legal equivalent of fighting windmills. Not just EA, but the entire software industry would conscript an entire army of lawyers to fight against such an effort.

  24. Strangeite says:

    Deoxy: The difference in the two approaches is a full frontal assualt versus a guerilla insurgent approach.

    One is not better than the other, it just depends upon your resources.

  25. krellen says:

    EULAs have never been held up by a US court. They are not legally enforceable, and do not provide legal protection to a company.

    All cases that have thus far been seen before a US court have ended in a ruling in favour of the plaintiff, typically with a mandated sentence of a refund plus fees.

  26. ThaneofFife says:

    Law school graduate (JD, but non-lawyer) weighing in on the complaint linked above:

    If you look at the causes of action stated in the complaint (there are three–arguably four, as the third is really two), two are made under California law dealing with deceptive trade practices. These stem from the non-disclosure of the existence and nature of the SecureROM program.

    The first cause of action states that EA misrepresented the nature of Spore and its design/functions, and in doing so violated the California Consumer Legal Remedies Act (“CLRA”). While this may be true, it’s not a great fit with the statutory language that the complaint quotes, meaning that the Plaintiff may have to show interpretations of the CLRA that support their contention, or otherwise make a compelling argument. So, this cause of action (“CoA”), while potentially provable, will probably need more than what is laid out in the complaint.

    The second CoA states that EA violated the Unfair Competition Law contained in Calif’s Business and Professional Code. Plaintiff’s counsel is in somewhat bad form in this CoA, as s/he didn’t even quote the statute that EA is alleged to have violated. I got picked on by my profs. in law school for “conclusory language,” and even I think this is too much conclusion, and not enough argument. EA has a shot at getting this one dismissed, or at least of forcing Plaintiff to re-write the complaint to make a more definite statement of facts.

    As I said above, the third CoA is really two things (or even three). Instead of statutory violations, it alleges that EA committed common-law torts (torts are civil wrongs–e.g. assault, battery, false imprisonment, fraud, libel, and the like).

    Here, Plaintiff is alleging Trespass to Chattels (essentially that EA caused damage to, or temporary loss of Plaintiff’s property), Nuisance (essentially, interference with Plaintiff’s right of quiet enjoyment of property), and Interference with Use of Property (a tort I’m not familiar with, but which sounds like trespass to chattels). What it looks like here is that Plaintiff’s attorneys didn’t really know which torts best fit EA’s actions, so they lumped three related ones together, alleged that EA violated all of them, and figured that the answer would come out in the wash.

    All that being said, I’m not sure Plaintiff’s complaint is as well-written as it could be. This may prove to be a problem as Plaintiff’s attorneys are going against some of the biggest guns out there when they challenge EA and it corporate counsel (and whatever law firm(s) EA has on retainer).

    None of the Causes of Action stated in Plaintiff’s complaint are a perfect fit, meaning that EA has a decent shot at knocking any or all of them out. And, even if EA doesn’t succeed in knocking out any of Plaintiff’s allegations, it could be three months or more before a judge even hears this case, the federal system is so over-worked (a settlement without trial could easily take two years or more to reach).

    That being said, I still think this suit is a step in the right direction. We’ll have to see what happens.

  27. Strangeite says:

    “EULAs have never been held up by a US court. They are not legally enforceable, and do not provide legal protection to a company.”

    Just because an EULA has never been held up by a US court, does not mean that it is not legally enforceable or that it does not provide legal protection.

    Go ask the Microsoft legal department (and the stockholders) if they believe EULAs are enforceable.

    Look guys, I am on your side and believe that EULAs are not enforceable, but that is my belief and does not have the authority of legal precedent behind it.

  28. ThaneofFife says:

    On EULAs, which seem to be the true topic de jour, I’d just point out that a EULA is UNENFORCEABLE IF…

    – if it is shown not to be a contract

    – if it is shown to be an unconscionable contract

    – if it is shown to be a contract of adhesion in a jurisdiction that outlaws or restricts contracts of adhesion

    – if it materially alters the contract that was made between the software seller and the buyer at the time of purchase (e.g., by changing the economic risk/rewards of the proposed agreement, or my altering the legal remedies available to the customer under law)

    – if it is shown to be illegal under the laws of the jurisdiction, or under federal law

    – if it constitutes fraud

    Generally, if one section of a EULA is determined to be unenforceable, that portion will be severed from the agreement and thrown out by itself, unless doing so would destroy the entire agreement, in which case the entire EULA would be thrown out.

    More broadly, for the EULA as a form to be declared an unlawful form of contract, a judge would have to determine that the form is completely counter to U.S. intellectual property laws. This is theoretically possible in that a judge could determine that under existing copyright law you have the same rights to software as you have to a book you have purchased, and that the EULA as a form runs counter to this.

    A good argument could also be presented that almost all EULAs constitute contracts of adhesion that materially alter the risks, benefits, and legal remedies inherent in a sales transaction. Any such EULAs might be unlawful in states that have adopted the relevant sections of the Uniform Commercial Code.

    Notwithstanding all of the above, however, you would be safe to assume that a EULA was a legally binding contract until a court told you otherwise. Likewise, you can probably sue for rescission of the contract if you believe that a EULA infringes on your rights as a purchaser. I would encourage everyone to study the law, and pursue this approach if they agree with me.

  29. Richard says:

    Not mentioning the SecuROM licensing isn’t surprising. A lot of the open source stuff requires you to mention the licensing.

    I would think SecuROM is quite happy if you don’t mention them in your license.

  30. Duoae says:

    ThaneofFife:

    That’s interesting. Could one make the case that a product with limited installs (using DRM) is sold as a complete product and not a rental? (There is no notice of this limitation at retail) Which would alter the material worth of the product and thus the contract assumed at purchase…

  31. Namfoodle says:

    The fact that EA told someone on the Spore forum to “shut up about the DRM or lose your game” just goes to show how much the really hate their customers. (Article linked in #18 has link to the forum).

    Really, they HATE their customers. It’s nothing personal. They just want you to give them money and then they want you to fu*k the hell off. Because all their customers own computers, and anyone with a computer is a potential pirate, and therefore despised.

    Why would anyone go into a business where they hated their customers? Is getting paid to write code for people you can’t stand that uplifting?

    Seriously, just get a job as a Prison Guard. On Death Row. If you can avoid getting shanked for 30 years, the retirement bennies are great.

  32. Jez says:

    I don’t know why you think that EA will change its mind of its own accord, even if it does so, to me I’d see it as likely to be less effective than a court order or successful class action suit against them.

    The best way to get a corporation to affect change is to make it too expensive for them not to do so.

  33. Deoxy says:

    Just because an EULA has never been held up by a US court, does not mean that it is not legally enforceable or that it does not provide legal protection.

    Go ask the Microsoft legal department (and the stockholders) if they believe EULAs are enforceable.

    Unfortunately, whether EULAs are legally binding, etc, or not, they DO provide protection – that is, if you violate Microsoft’s EULA, they can sue the ever-loving crap out of you. Even if you are entirely in the right and win in the end, Microsoft has still essentially won: “The process is the punishment.” It’s an extreme weakness of our legal system.

    Look guys, I am on your side and believe that EULAs are not enforceable, but that is my belief and does not have the authority of legal precedent behind it.

    It DOES have legal precedent behind it – all precedents involving EULAs are that they are not binding. The thing is, all the big software companies KNOW this, and they will do their level-best to avoid an actual ruling, as it will almost certainly go against them, strengthen the precedents against them, and encourage others to flout the EULA as well.

    So, what is the value of the EULA to them? Why to keep using them and acting as though they are meaningful?

    See my earlier comment about process and Strageite’s comments about “army of lawyers”. Just because they are in the wrong doesn’t mean they will give up their position without a fight, and the fight is HARD.

    They are hoping that, eventually, if they can just occupy their legal position long enough, it will become legal – soft of the legal equivalent of the statute of limitations (I’m sure there’s a good legal term for this – a little help?).

    The only way they lose is if someone sues them (if they are suing, they can simply drop it before judgement) and refuses to settle no matter the offer, until judgement is rendered. The “no matter the offer” part is actually pretty hard, as a) they can offer a good bit and b) if the final judgement is less than the offer (especially is that is obvious at the time), some jurisdictions may look poorly on you for not taking the offer (as that would clearly be better for you personally, principles be d—ed).

    The best way to get a corporation to affect change is to make it too expensive for them not to do so.

    Absolutely true. In many or even most cases, it’s the ONLY way (which is not necessarily bad, mind you – companies exist for the sole purpose of making money, after all).

  34. Mari says:

    More broadly, for the EULA as a form to be declared an unlawful form of contract, a judge would have to determine that the form is completely counter to U.S. intellectual property laws

    Been done. SoftMan Products Co. v. Adobe Systems Inc. is one example. Step-Saver Data Systems, Inc. v. Wyse Technology is another. Unfortunately, these are all circuit court rulings and of conflicting nature. However, in the right setting they can be used together to form precedent.

    Generally, if one section of a EULA is determined to be unenforceable, that portion will be severed from the agreement and thrown out by itself, unless doing so would destroy the entire agreement, in which case the entire EULA would be thrown out.

    Actually, only recently a Washington state court struck a blow for consumers in this direction. “If the worst that can happen is the offensive provisions are severed and the balance enforced, the dominant party has nothing to lose by inserting one-sided, unconscionable provisions,” was part of the wording in the ruling which struck down AT&T’s entire very one-sided EULA rather than holding sections still binding. Unfortunately, the case hinged on Washington consumer protection laws which are more stringent than many states so we can’t expect to see the same outcome in other courts across the country.

    Still, enough blows are being landed little by little that I think in the long run we’ll see some national action on EULA practices in the next decade or so. The real concern is who will be writing that national action. Something to keep your eyes open on, at least. I’m curious to see if this ends in a far-reaching court ruling before the U.S. Congress gets into the act.

  35. ThaneofFife says:

    @ Duoae:
    Intellectual property was not a big area of study for me in law school, but there’s definitely an argument to be made that a contract for the “sale” of software is more similar to a contract for the sale of a book than it’s different. If a court took this approach, then it would be forced to conclude that all EULA provisions that exceed the protections accorded to the software’s producers under copyright and/or patent law are invalid. Not saying it’s going to happen, just that it could…

    @ Mari
    Thanks for the cases! I hadn’t been familiar with those. Wish I had time to read them today, but I’ll confine my comments to saying that it’s possible to use the legal system to attack EULAs, and it should probably be done more than it is. However, one always risks a pyrrhic victory when challenging a large corporation with deep pockets–even if you win, you risk bankrupting yourself in the process.

  36. Mari says:

    Oh, I definitely agree that in many cases it becomes a pyrrhic victory. While I predicted a more broad-reaching consensus in the next decade, I don’t anticipate it in the next few years. It’s going to take a lot of small blows that people can afford before we start seeing anybody notably reaching for the big victory.

    The cases I cited were only marginally related to the issues here anyway. They all deal with EULAs, but in different aspects. For instance, SoftMan was about the right to resell bundled software and part of the decision was based on the fact that SoftMan was a retailer and thus hadn’t actually clicked the shrinkwrap EULA so they couldn’t be legally bound to it. Step-Saver involved a EULA printed on the outside of the box.

    BUT, in both cases, the opinions were where the real meat is. For instance, the judge who wrote the opinion for Step-Saver specifically included language condemning post-1990 EULAs as steps deliberately intended to evade federal statutory and constitutional laws. Strong wording indeed coming from the bench…

  37. Steve C says:

    Yo krellen!: You said the same thing before, and I attempted to correct you with a comment on Shamus’ blog.

    How they weasel EULAs into being is that company’s claim that loading into RAM is a “copy” and therefore not allowed unless by license. I’m so very glad there is a clause in Canadian copyright that excludes that nonsense. In Canada any copy made to get a computer to run is outside the scope of copyright entirely.

    BTW there is a case to challenge EULAs legality as a whole as part of MDY Industries v Blizzard (Arizona case CV06-02555-PHX-DGC). That case references a bunch of precedents of the “EULA is valid/not valid” kind. Going to be uphill fight since Blizzard v Bnet enforced Blizzard’s EULA.

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