DRM Poll

[Salazaar]

You bought the game, not rented it so should be able to use it forever

Except that, right or wrong in principle, that's just not true of any PC software. What you buy is a license to run the software, under whatever restrictions the publisher sees fit to apply; you don't own the software in any shape or form.

[watercooled]

But since the DRM often isn't mentioned in the license agreement - they are in breach of contract, right?

[Andy3536]

But since the DRM often isn't mentioned in the license agreement - they are in breach of contract, right?

From what i understand they are all mentioned in the EULA with the exception of the original demo released for spore. (which started a court case)
They aren't however all mentioned on the back of the box, when i received Football manager 2009 it didn't say on the back online activation was required and also was not mentioned at play.com who normally do say so in the requirements for PC games.
Then the server was down so i couldn't play it when i got the game.

[watercooled]

The funny thing is that when you break the seal, you have agreed the the agreement - which is on the disc inside? It's like the unpacking instructions for refrigerators which are inside the fridge???

[Hicks12]

I can see your point but i think i didnt quite cover my sentence, there isnt proof it works or doesnt work if that makes any sense because it gets pirated as everything does so DRM might
be better but it probably isnt, if companies still use it then it must work in their eyes.

Totally agree with the whole packaging thing, ive looked at all the DRM games i got and only a handful had it in small print that it uses activations. Most EULA's dont state how many installs you get so are they breaching the contract already?.

If it was clearly written on the box then id say thats a step forward, DRM isnt great and at this point in time i doubt it ever will be. I think the best way to solve pirating is to use accounts that you make which requires your name+address etc and when you sell it or something you just transfer it into the other persons name, cant crack that if the account is invalid or perhaps make it so you need the barcode on the back of the box? Sorted.

Well ..... it doesn't. If it worked, fully, there wouldn't be any piracy, would there?

Is there a form of copy protection in existence that hasn't been, or won't be broken?

It's a balance. The calculation games companies make is that they can prevent some people pirating, and that of those, some will buy. More especially, the calculation is that they can do this in the critical golden days after release. These days, whether a game is a commercial success or not often depends on sales in those critical first few days and weeks. If they can prevent it being pirated for that first few weeks, then copy protection has done what it needed to do, and anything after that is a bonus.

So in that sense, it works if it prevents mass piracy for a few weeks, because that's when the main surge of sales will be, and most critically of all, when the most profitable sales will be, due to those that must have (and usually brag about) the latest game on the day of release, and will pay top dollar (or even a premium) to do so. If you lose them (and that's why pirate releases either in the hours after release, or even pre-release are so damaging commercially), it can make a couple of years of development work a commercial failure.

Those companies also know that it will cost them sales from people like me. They don't much like that, but it's a price they'll accept.

So whether DRM works or not depends on your criteria. From the company point of view, it works if it holds off large scale piracy for a few weeks.

But for me, it works if it stops piracy without mucking me about too much. If it means I have to go begging for activation codes because I've reinstalled Windows too many times, or moved from PC to PC too many times, or I'm coming back to an old game after a long (maybe years long) break, then it doesn't work. If I have to have an internet connection to get a game I bought to play, then it doesn't work. If I risk that game purchase becoming totally valueless because it relies on online activation from a company that may not exist in the future, then it doesn't work. For me.

Also, for me, if whatever the DRM is starts screwing around with low-level aspects of my PC without even telling me, let alone asking permission, then it's a total and utter non-starter for me. And some forms of DRM do.

If the use of DRM was openly declared, so I know I'm getting it before I buy, and what the implication are before I buy, then I'll buy based on what I find acceptable. But if that means I have to spend ages researching (and remembering) what a myriad of different DRM techniques do and don't do, complicated by it changing as revisions change, and as companies decide to change exactly how they implement it and what the criteria are, then I can't browse, pick a game I fancy and buy because I have no practical way of knowing quite what I'm buying.

While that situation exists, and frankly I don't expect it to change, I won't be buying any more PC games.


The good news? It's saving me a fortune, both on game purchases and on buying £50 graphics boards, not £350 ones. I guess I should thank DRM, because it sorta funded my next PC replacement.

[watercooled]

I think it should definitely be displayed on boxes for the time being as people would have a choice then, and if more people knew about this then maybe sales would decrease encouraging companies to rethink DRM. I feel sorry for people who don't know anything about securom and go to use Nero, or try to reinstall the game. It would be a nasty surprise, surely?

[Saracen]

Except that, right or wrong in principle, that's just not true of any PC software. What you buy is a license to run the software, under whatever restrictions the publisher sees fit to apply; you don't own the software in any shape or form.

Erm, no. That's what software houses want you to believe, and would no doubt love to have the ability to make the case. But it is not how things actually are.

There are two absolutely fundamental things to remember about EULAs. One is that the law governing whether they are enforceable or not varies from jurisdiction to jurisdiction - even if they are enforceable in the USA (and that's very widely open to dispute, it doesn't mean that they're enforceable in the UK .... and Belgium, Israel and New Zealand (etc) may all be different from the UK, and from each other. For that matter, the determining court decisions even within the UK aren't even applicable right across the UK - some very well known Scottish decisions aren't binding on English courts, and vice versa. Persuasive maybe, but not binding.

Secondly, it's a complex area of law anyway. To determine whether a EULA is enforceable, you need to establish, firstly, whether it's binding in any way, which depends on exactly when the contract between buyer and seller is established. If it is established when you hand over the money in a shop and get given a box (or the online equivalent), then the EULA isn't binding because you don't have it and can't agree to things you haven't been told. If, on the other hand, it's binding when you install, then the situation may change, and will in some jurisdictions. But, for that to be ninding in the US, for instance, the buyer has to be given the choice to agree or not, and of course, if he chooses to not agree (and therefore not install) then he must be offered his money back. And when people have tried to rely on that, shops (unsurprisingly) have been reluctant to take back opened software, even where the EULA says the buyer has that right, and manufacturers have been known to decline too. So someone, somewhere, is breaching their own EULA by not letting the consumer decline the terms when he gets a chance to read them, and if you can't decline there's no contract, and if there's no contract, the EULA isn't enforceable.

There is, as far as I can tell, very little case law on the enforceability of EULAs in England And Wales, and what there is (or at least, those that I've read) have been at pains to point out that they are not intended to establish general principles, but to deal with the specifics of the case in hand, and so aren't applicable to other cases unless the facts and situation are materially the same.

Next, in the UK, even if a EULA is, in general, enforceable, it is very possible that individual terms may not be enforceable. Suppose a EULA says you can't make a backup copy. Well, the Copyright Act, that being statute, says that you can under certain conditions. Also, of course, if a EULA is badly worded and tries to prevent you making a copy, well, how can you install it to run it without making a copy?

And even more than that, the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contract Regulations 1999 both place restrictions on what can be contractually imposed.


Don't get me wrong. I'm not saying that EULAs are unenforceable. I'm saying it's a disputed area, that there are reasons why they might well be unenforceable (or some might) in some jurisdictions, and that even where they're enforceable in general, it is not a given that all the terms of them are.

And until each jurisdiction gets either statute, or a body of relevant case law, they're going to stay a grey area. For some reason, we rarely get cases like this going to court, with the exception of rather more significant disputes (like Beta V Adobe). I wonder why software houses seem reluctant to take a test case or two to court? Perhaps because they fear that the ruling might shine a light on the Emperor's new clothes (or lack thereof)?

[watercooled]

I believe EA has been taken to court a few times - unfair competition being one of the reasons. Not sure of the outcome, though.
Also, we all have statutory rights and if a product is not serving the purpose for which it was purchased then it's in breach.
If we pay hard-earned cash for a game then surely a company cannot break the contract without returning our money?
And, shops and suppliers should be informed that the public have a LEGAL RIGHT to return a product if they don't agree with the EULA. EULAs should also be short and easy for the general public to read rather than requiring a law degree to understand what the heck they are blathering on about.

[Saracen]

Agreed, but Sale of Goods Act provisions for fitness for purpose are a very different issue from EULAs and any refund provisions they may contain.

[Salazaar]

I wonder why software houses seem reluctant to take a test case or two to court? Perhaps because they fear that the ruling might shine a light on the Emperor's new clothes (or lack thereof)?

Probably true, though while the status quo exists they don't have to worry. Since no consumer has taken action over the EULA either (or, as you say, there have been no cases which actually set prescident) the software companies are just going carry on acting as if their EULAs are binding, after all, why would they make a move which might bring down their house of cards?

[kalniel]

Blizzard did test the ruling, and the court found in their favour (in NA at least) - EULAs are legally enforceable as long as they don't infringe on statutory rights.

As far as reading it is concerned, you haven't accepted the EULA simply by opening the package, you only accept it when you click accept. Until that point you are fully entitled to a full refund on your purchase if you don't agree with the license terms.

[Hicks12]

Blizzard did test the ruling, and the court found in their favour (in NA at least) - EULAs are legally enforceable as long as they don't infringe on statutory rights.

As far as reading it is concerned, you haven't accepted the EULA simply by opening the package, you only accept it when you click accept. Until that point you are fully entitled to a full refund on your purchase if you don't agree with the license terms.

The thing is, alot of stores wont take PC games back. I know my local game refuses to take back games if they are opened, they will replace but no refunds and i guess thats because they expect you to have copied it or something. If that is a right then i will start having a go at them.

[Saracen]

Probably true, though while the status quo exists they don't have to worry. Since no consumer has taken action over the EULA either (or, as you say, there have been no cases which actually set prescident) the software companies are just going carry on acting as if their EULAs are binding, after all, why would they make a move which might bring down their house of cards?

But that does, of course, leave us in the situation where we don't know if EULAs are enforceable or not, and if they are, to what extent.

And it's an important thing to know, because it'll be the EULA that seeks to define :-

- how many PCs can you use a product on? Might be one, but some EULAs say three.
- can you transfer the licence? Some say no, some say yes but with conditions
- can you use the product in a virtualisation environment

and so on. They're questions of direct relevance to users. For instance, I might be prepared to buy an MS Office 2007 licence that lets me install on my personal machine, my laptop and my office machine, but without that (legal) ability, I'll stick to the old Office licence I've been using for years. So it affects the software house too, since them getting revenue from me directly depends on that EULAs terms.

Yet we don't know. If they're not enforceable, I'd buy. If they're enforceable and worded right, I'd buy. If they're worded wrong and not enforceable, I'd buy and do what I wanted not what the EULA seeks to preclude. But if they're worded wrong and enforceable, I won't buy, I'll make do with the old version. Or, for that matter, how strict can we be on "non-commercial" use? Office Home and Student has a non-commercial restriction. Suppose I buy for a home machine, but write a single business letter in Word. I've invalidated my licence, yet no way am I forking out what a full commercial licence costs to do the odd job from my home machine. Again, the EULAs enforceability affects the purchase decision.

[Saracen]

Blizzard did test the ruling, and the court found in their favour (in NA at least) - EULAs are legally enforceable as long as they don't infringe on statutory rights.

As far as reading it is concerned, you haven't accepted the EULA simply by opening the package, you only accept it when you click accept. Until that point you are fully entitled to a full refund on your purchase if you don't agree with the license terms.

Yup. In North America, it's that ability to take it back if you don't agree that gives EULAs enforceability. Yet try testing it in practice. That's precisely the point. If software house want us to be bound by EULAs, they need to be too.

However, it's still not the case that EULAs are necessarily enforceable in the US. There have been cases where judges have held them enforceable, but there have also bee cases where they have been held unenforceable. It's been decided in state courts, and different states, of course, do things differently. It's also a sufficiently vague area of law that different judges have been known to take different views. Not all court decisions are decisions on points of principle, and if a case is on facts but makes no distinctions from known principle, then decided a different case with different facts doesn't gain much in the way of precedent from a previous case because the facts are different.

Even where there has been a previous ruling, you need to be guarded about how you interpret the effect this will have on a current case. It might be what determines the current case, but equally well might not. Also, of course, what level of court were the two cases in? I'm not aware of a lower court being able to set a precedent binding on a higher court in the US, and they certainly can't in the UK. It's not necessarily even binding on the same level of court. Try telling an Law Lord that another Law Lord's decision was binding on him. I did have that discussion with a Law Lord a good while ago, and got a lecture for my trouble.

[kalniel]

The thing is, alot of stores wont take PC games back. I know my local game refuses to take back games if they are opened, they will replace but no refunds and i guess thats because they expect you to have copied it or something. If that is a right then i will start having a go at them.

If playing the game as intended is dependant on you agreeing to a license then you haven't completed the contract until you agree to the license. Stores often try to refuse to take back games, but they do that regardless - if a game doesn't come with a CD key due to a mis-print for example then you are entitled to a refund because the game isn't fit for purpose, but they'll still try and refuse just out of ignorance.

If it's an Atari game then you can just return it straight to them if you don't agree to the EULA and they'll refund you, but that's a service above what's required because your contract is with the retailer, not the publisher.

edit: re. the above lecture

[watercooled]

I recently bough a game from a high-street retailer for which the disc was in the cupboard behind the counter. The disc was scratched and DOA but the shop wouldn't refund or replace the game because I'd broken the seal? How was I supposed to know it was scratched if didn't open the box? I only managed to obtain a refund after several calls to national rate customer service numbers which probably added £5 to the phone bill in total. I know this isn't DRM related, but it shows the ignorance of some retailers.