EA: The Noose Loosens

By Shamus
on Oct 31, 2008
Filed under:
Video Games

A follow-up to the earlier post about EA taking away your toys if you don’t play nice, they have issued a clarification.

They’ve basically admitted that they have unparalleled power to take from their customers with impunity but… they have no immediate plans to do so. This does not comfort me the way they seem to think it should. The point remains that they reserve the right and the power to take from you, without issuing a refund. That power is inherent in online activation, which is one reason why I’ve opposed it from the start.

Still, this might be good news for some of you who who saw this as the last straw. I still wouldn’t trust these guys with my money. I mean, they don’t trust me with their software, and this is a two-way street. But if you were willing to do business with them before, then don’t let the previous post change your stance. They’ve backed off from that.

So… Happy Halloween, I guess.

(And this just killed an upcoming Stolen Pixels. Dangit. Just when I count on them to be evil. Maybe I’ll post it here or something.)

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201535 comments. Hurry up and add yours before it becomes passé.

From the Archives:

  1. Kel'Thuzad says:

    Are you KIDDING ME?
    *Mistake*. Yea. Right. It kinda seemed like he said outright that it would happen.

    Have they already done it at all?

    Oh, happy Halloween to you too.

  2. Adeon says:

    From EA’s point of view the problem is that there are always going to be people (myself included) who wonder if it was actually a policy that got reversed (as a “mistake”) once they saw the negative press that it generated. It could well be a genuine mistake, but I’m cynical and I wonder…

  3. July says:

    It remains that they can ban you from your legally bought game for anything… now it just doesn’t mean you get banned from all your other legally bought games at the same time.

  4. Shamus says:

    Adeon: And of course, there is no guarantee that it won’t be reversed again. I mean, they really can do whatever they like.

  5. MintSkittle says:

    It’s the standard EA practice: Tighten the screws and people get outraged, so they back off a bit, but not entirely, and the anger dissipates.

    Next it’ll be if you bad mouth ’em on their forums, they’ll confiscate your computer, then they’ll back off to merely banning you from your legally bought games.

  6. Lady Kat says:

    @Adeon

    Yup, that was pretty much my thought as well. It seems like a very purposeful testing of the waters to see just how far they can go.

    Never again, EA. NEVER.

    And thank you Shamus for continually keeping us all updated on this nonsense. If it wasn’t for your blog, I probably wouldn’t have realized the full extent of some of these programs until after wasting my money on them.

  7. Loneduck3 says:

    Wll, here’s my take. Yes, EA is running their corporation like dirt bags. But they have some really fascinating games coming out. (For me, Mirror’s Edge. Some people like Dead Space, Warhammer MMO, etc.) Just because the publisher is a dirt bag doesn’t mean I’m not going to support innovative developers. Of course, I’m mainly a console gamer anyway. No online activation necessary. I won’t refrain from a puchase just on personal dislike. If there was online activation required for the PS3 version, I might hold off.
    Mirror’s Edge it what I’d call a survival platformer, and the demo’s gotten me really excited for it. So I’m probably going easy on EA. What can I say, they snagged me.

  8. Kleedrac says:

    On the upside now that Spore is released there’s nothing else in their catalog that interests me in the slightest ^^

  9. Luke Maciak says:

    Shamus, you can still post the comic – just make the last panel be like “Just kidding! We wouldn’t ban you from your games…But we can. Oh we can! But we wont. Unless…”

  10. Kris says:

    Happy Halloween, Shamus. Definitely post it here for us if you don’t use it up on Escapist. :)

  11. Gahazakul says:

    Anyone else investing in consoles nowadays? At least if they want to take away my games they have to come to my house. Fallout 3 is especially nice.

    On the console at least. On PC our old friend SecuROM is onboard.
    http://www.bethsoft.com/bgsforums/index.php?showtopic=892618&st=0

    And here are the fun hoops Bethseda put up for you PC people. (And folks wonder why consoles have taken gaming by the horns.)
    http://www.bethsoft.com/bgsforums/index.php?showtopic=892715

  12. Oleyo says:

    Wow, pretty clever of them. This way they can’t be seen as incorporating such a horrific policy, but the background threat is still there: “we could If we wanted to, so play nice or…well, who knows?”

    It reminds me of a guy in a movie with a gun: ” I wouldn’t do that If I were you…” Get’s the benefit of the threat, but doesn’t have to kill anyone.

    I hate them

  13. Ferrous Buller says:

    “They won’t invade all at once – they’ll use salami tactics.”

    “Salami?”

    “Slice by slice.”

    Taken from “Yes Minister.” Funny how Cold-War-era Soviet metaphors can be applied here, eh? :-)

    I wish I could say I was principled enough to boycott EA entirely just to express my annoyance, but…well, “Dragon Age” (and basically anything from Bioware) is pretty much much a day-one purchase for me.

  14. Illiterate says:

    On the bright side, I just found out that EA owns Bioware. Had either never heard this or forgotten about it.

    Why is this good news? My marriage will no longer be threatened by the release of the Old Republic MMO.

  15. Plasma says:

    EA: “We have decided to institute a nefariously evil policy.”
    gamers: “Um. You know, that policy is really quite awful.”
    EA: “Oh, is it? Very well, we will make it ever so slightly less bad, then.”
    gamers: “Yay! You’re not evil after all, EA!”
    EA: “Yes. ‘Not evil’. Exactly. Now, if you will excuse me, I have to go engage in some maniacal laughter.”
    So how many times have they done this so far? At least two or three times that I can count.

  16. ThaneofFife says:

    (Disclaimer–while I am an attorney licensed in Virginia, the statements I make here should not be interpreted as either legal advice or a solicitation for clients–they’re just my opinions)

    Personally, while I own no EA games, I almost wish that (1) I did, and (2) EA would ban me from their forums and games so I could sue them.

    If someone took this to court, and proved their point about the nature of the product and the first sale doctrine–i.e., that these products are marketed as goods being sold (not rented) and that the license is an after-the-fact contract of adhesion that dramatically changes your rights vis-a-vis what you thought you were purchasing, in apparent violation of the Uniform Commercial Code and probably various state unfair trade practice laws–then EA might be a little more hesitant to pull this kind of stunt. Granted, EA might not be, too. But, a couple of successful suits might tip the balance.

    Also, if EA had to send its army of lawyers to actually litigate its shabby treatment of its customers, then it might begin to rethink the cost-benefit analysis that apparently underlies this “screw you” mentality.

    On a somewhat related note, the business section of the New York Times website includes two stories, from A.P. and Reuters, respectively about E.A. $310 million loss in the second quarter, and declining profit forecasts for next year. The reasons? “Higher development and marketing costs led to the bigger loss for the July-September period.” Other reasons may include, “the slowdown at retail we’ve seen in October,” “EA’s adherence to its retail pricing plan” (i.e., its unwillingness to cut prices), and even “foreign exchange headwinds.”

    Meanwhile, curiously and conspicuously absent from both of these stories was any mention of “piracy.” Do a “find” search in firefox–the word doesn’t appear once. This strikes me, because it would make a perfect scapegoat, and I’m sure that EA is still putting piracy out there as a reason for its decline. But, I can’t help but be gratified that none of the EA execs or analysts in either story are quoted as blaming piracy for EA’s current woes.

    Sure piracy costs money, but it’ll happen regardless of whether you take draconian protective measures that alienate paying customers. Meanwhile your customer base evaporates as a result of your own efforts combined with a shrinking economy. EA really only has itself to blame for the first half of this equation. And the first half of the equation is what matters, since the video games industry is supposed to be “recession-proof,” and thus not particularly vulnerable to economic gyrations.

    So, three cheers for A.P, Reuters, and all those journalists who don’t reprint EA’s “piracy is causing all our problems” propaganda! Huzzah!

    The links to the stories are here:
    http://www.nytimes.com/aponline/business/AP-Earns-Electronic-Arts.html?scp=2&sq=ea&st=nyt

    http://www.nytimes.com/reuters/business/business-us-electronicarts.html?scp=1&sq=ea&st=nyt

  17. Roxysteve says:

    Take heart gamers.

    For the next two to three years money will be tight and EA will undergo sales shortfalls, earning underperformance and a whole host of other problems that used to be very common before most of you were born.

    In the fullness of time large numbers of EA people will once again face the challenge of competing in the job market (a market much less forgiving than in living memory for the people concerned) while the company itself goes into the terminal reorganisation spiral that was the hallmark of so many businesses in the 70s.

    Seen it. Bought the movie.

    It will become glaringly obvious before too much longer that home computers are luxuries (for the vast majority of people), and the games people buy to play on them luxuries too. People take their time learning the difference between a luxury and a necessity, but when they do you can here the paradigms being smashed a mile away. Only those who demonstrate large amounts of added value will survive.

    EA are on borrowed time. Heck, most of the home computer software industry is.

    Steve.

  18. Apathy Curve says:

    @roxysteve

    Perhaps you should increase your Prozac dosage, buddy. Your post depressed me so much I’m gonna have to leave work early and go open that bottle of scotch waiting for me. (That’s my excuse, and I’m stickin’ with it.) :D

  19. guy says:

    On a lighter note, i have a 10% off coupon for my next impulse purchase.

  20. R4byde says:

    I’m beginning to wonder if I won’t have to swear off new games entirely. Dead Space, for PS3, looked interesting but I’ve decided to boycott EA titles. The only other new games I was looking forward to were Fallout 3 and Empire: Total War; but now Empire is on Steam and Fallout might not get a construction set. Oh, cruel world! Why dost thou hate me?

    Oh well, guess I’ll go give CdProjekt more of my money, I swear those crafty Poles invented GOG.com just to bankrupt me and destroy my grades.

  21. Jeff says:

    @Lady Kat:
    We’ve made too many compromises already, too many retreats. They invade our space, and we fall back. They assimilate entire worlds, and we fall back. Not again.
    The line must be drawn here. This far, no farther! And I will make them pay for what they’ve done.

    ;)

  22. ehlijen says:

    Tremble in fear before our shiny new deathstar. We don’t actually plan to use it straight away, so please don’t cry in fear, but we do have it now, so bit of trembling is called for. But please don’t call us evil. We could blow up planets, yes. But we don’t! Look at how not evil our deathstar is!

  23. Steve C says:

    @16 ThaneofFife:
    Sorry but because you live in Virginia you would be screwed in your lawsuit thanks to the Uniform Computer Information Transactions Act. It’s one of only 2 states that legislated away consumer rights for no particular reason. (Maryland being the other.)

  24. Kel'Thuzad says:

    @ehlijen:

    You are totally awesome.
    Nice comparison, considering that they probably have enough money now to do that.

  25. Terrible says:

    It’s like they say, “too bad to be true”

  26. ThaneofFife says:

    @ Steve C:
    Yeah, Virginia is not one of the best states for consumer protection. However, plenty of states still do have good consumer protection laws on the books for this sort of thing. And, even here, there are several good legal arguments you could make against what they’re doing, the VA UCITA notwithstanding. For example, even the UCITA allows a court to throw out unconscionable contract terms (59.1-501.11).

    For those interested, Wikipedia has a link to both the VA and MD UCITAs: http://en.wikipedia.org/wiki/Uniform_Computer_Information_Transactions_Act

    (Can you tell I was just admitted to the Bar? I had never even heard of the UCITA as of this afternoon)

    Even better news, though, for consumers, is that the choice of law provisions in your EULA will most likely steer you to a different state (EA usually uses California law in its EULAs for choice of law and forum selection provisions, judging from what I’ve seen, and if memory serves–meaning that while you’ll be forced to go to California to file suit, you’ll also benefit from California’s fairly decent consumer protection laws when you do).

    So, being a first-year lawyer, and having only a hammer in my possession, this problem kinda looks like a nail to me–hence my saying “if they wrong you, sue them.”

    Again this is NOT to be considered legal advice.

  27. MuonDecay says:

    It’s the standard EA practice: Tighten the screws and people get outraged, so they back off a bit, but not entirely, and the anger dissipates.

    To be properly impartial, the moderator in question claimed that they posted that because they didn’t understand what they were talking about correctly. This isn’t to say they’re assuredly being honest, but there is indeed a very plausible chance that this is exactly what happened.

    Nonetheless, their ToS does indeed stipulate that yes, they reserve the right to take away what they sold you without a damned refund, and I’m sick of these people thinking that being rich entitles them to ignoring the most basic tenets of what constitutes a purchase. To hell with the bastards, I am done buying their games as of this fiasco. I’m tired of paying someone to kick me in the face. Their competitors still act more or less like they don’t hate you for giving them money. I’ll just give THEM my money instead.

  28. guy says:

    @MuonDecay

    Join me, and together we shall buy games on the Impulse service as… two random people on the internet.

  29. SteveDJ says:

    Ok, here’s a thought:

    I go buy a PC game. I get home, open it up, plug it into the computer, and read the EULA. Hmmm, I decide I DON’T accept the terms of the EULA. Naturally, I cannot return it to the store (it has been opened).

    So, I draft a letter to the publisher, and draft my OWN replacement EULA agreement. I then mail this to the publisher, along with a statement that “…I did not accept the terms of their EULA, and I want my money refunded. If they return my money, fine. But if they don’t, I will consider that they have accepted the terms of MY EULA…”.

    The idea is – they have kept my money, so we ‘re-negotiated’ the terms of the EULA.

    Now, with my own EULA, I might have the right to bypass DRM or other activation means, make copies, install on all my computers, retain full freedom of expression on public forum boards, etc. (others might even push for rights to redistribute — just to catch their attention – but might not make for a good test case)

    It would be interesting to see how this would play out legally. Of course, there is always a slim chance that the publisher would actually return my money.

  30. Avaz says:

    @SteveDJ:

    I would be highly interested in someone with the appropriate legalese fluency to try this and see what happens.

    Worst case scenario: They return your money.
    Best case scenario: You get to call it a bona fide purchase and do what you like with it.

  31. Yonder says:

    SteveDJ, I find your idea intriguing as well. I am guessing that if this happened with a small number of purchases they would just refund you your money. But if the number grew (I would imagine even half a percent of their purchases would make them stop and take notice) the amount of refunded money would grow pretty large. It may make them rethink some of their policies, because unlike other methods of protesting, this one has to come from paying customers, it would be completely impossible for them to claim otherwise.

  32. Count Stex says:

    Think we could get a site such as MetaCritic to add additional ratings for games based on their DRM restrictiveness? What’s lacking is visibility, we need a good way to make more people take notice. It’s a pity I can no longer just buy the games I want to play, I have to first pre-screen them for restrictive DRM.. Impulse and Steam should be picking up users left right and centre.

  33. Miral says:

    @SteveDJ:
    It’s an interesting idea, but you’d have to somehow get the game to install without ever clicking the “I Agree” button (since by sending them an EULA back you’re acknowledging their EULA as valid, if not agreed-to). Which means either bypassing the installer (tricky but doable, depending on what it does — though it might run you afoul of DMCA) or getting the pirated version (which also might hit DMCA or copyright law).

    I suppose you could put a clause in your EULA saying that you can use the I Agree button at some *later* time without it being binding, but you’d then have to wait a reasonable period after sending them the modified license for them to respond before you could act on it, so you wouldn’t be able to play the game for a few weeks.

    (I am not a lawyer.)

  34. SteveDJ says:

    @Miral (#33)
    Absolutely your custom EULA should grant you access to the product where your EULA overrides the one they prompt you with during install.

    It has been awhile since I last installed anything on my computer, but when I did, it presented me with the EULA during the install wizard – so you get it (and must accept it) before the install completes. But then again, you aren’t actually sending them their own EULA – you could have a completely new one drafted ahead of time and send it before you even break the seal on the box.

    And yes, to do this right I realize that one would have to wait awhile before playing the game. But, if a boycott of DRM (or other EULA-offensive) titles means you never get to play it – then waiting 30 days or so isn’t that big of a deal. I might even send it Certified Mail (with signed return-receipt) and start counting when I received that receipt.

  35. Blackbird71 says:

    From EA’s Calrification:

    He [EA Apoc] said. “I had a misunderstanding with regards to our new upcoming forums and website and never meant to infer that if we ban or suspend you on the forums, you would be banned in-game as well. This is not correct, my mistake, my bad.”

    I call BS on that one. He may have had a misunderstanding, and he may have misstated the company policy, but he most certainly did mean to infer that a fourm ban = game ban, he stated it very clearly:

    “if we ban you on the forums, you would be banned from the game as well” -EA Apoc’s original post

    Please tell me how any other conclusion could have been drawn from that statement, or how it could possibly not mean exactly what it said. This part of the recant is undeniabley an out-and-out lie, and it casts more doubt on the sincerity of the rest of EA’s PR statements.

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