This is not unique to Blizzard, and has nothing to do with their latest EULA changes. Binding arbitration has been part of their EULA for years, long before the latest one arrived. (The earliest copy I’ve found is from 2018, and I don’t think it was new even then.)
Both that and the unilateral changing of terms post-sale are horrible practices that we should all pressure our legislators to make illegal, and perhaps reject by voting with our wallets, but singling out one company for it takes attention away from the larger issue: It has been widespread in the software industry for a long time.
If EULAs are going to be legally binding, there should really be some standard mechanism, an API, on systems to display one such that the system can record a copy and you can see differences and such. Otherwise, you’re entering into a contract with some random party and only they have a copy or and see what changed across versions.
If such a display API is available on a given platform and isn’t used, could simply make the EULA automatically non-binding.
I’m willing to believe that there are legitimately cases where one does need license agreements to fix issues that extend beyond standard consumer law, but the current situation is simply a dumpster fire. Also, some EULAs have been held unenforceable, so even from the standpoint of the software company, it’s a mess as to whether their license is actually going to stand up; there are no clear lines to which a lawyer can conform to make their license hold up.
Some other possible tweaks:
Require that prior to sale, existence of a EULA be prominently disclosed and be readable.
I personally would much rather have industry adopting standard licenses than having every company creating ad-hoc licenses. Like, in the open-source world, the GPL and MIT licenses deal with a number of problems that open source software runs into, and I can learn once what each entails and quit looking at it. I’d rather have there be agreements for commercial software that work the same way. If industry needs flexibility, I think that it’s reasonable to say that they don’t all need to custom-craft solutions. I’d rather like legislation that encourages industry use of a limited number of widely-used agreements rather than hand-crafting them. Maybe add some kind of tax on non-standard EULAs, dunno.
Disallow change-without-notice as a EULA condition; there should be no legitimate reason for this. If you got agreement once, you can get it again. Require that any change notice also provide a way to see the “delta” between the old license and the new license, just the changes.
They need to limit EULAs to something like 600 words.
Make them binding and non-changing to the product purchased, only newly purchased products can get the updated EULA.
They should make a Ethics Policy (things like no cheating, be kind, no swearing, etc.) separate from the EULA. This Ethics policy can be updated whenever.
Make them binding and non-changing to the product purchased, only newly purchased products can get the updated EULA.
So I think I see what you’re getting at, because I was thinking about it in another comment and considered that, but I think that that’s probably overly-strict. There are some cases where legislation requires that a service provider act differently, and their EULA may be incompatible with that. Or where they’ve made a legal error in their initial EULA – you gotta have some route to fix that. Though I suspect that it’s possible to carve a smaller hole for that than is currently the case.
I have another comment where I make one suggestion to tighten up that hole a bit:
Yeah, I think that a EULA change should reasonably permit for some kind of refund. Maybe have some mechanism for deprecating the value of the service based on use – like, if you expect a typical online game to be online for 10 years and a user has used it for 5 and the service wants to change the EULA, mandate the option for a 50% refund in lieu of continued service under the new EULA or something.
That’d make games more expensive, but it’s a risk that companies could factor in when deciding on EULAs and the initial price.
That avoids the possibility of a bait-and-switch where you agree to one (acceptable) EULA, but then the vendor places you in a position of either agreeing to a new EULA or losing your money.
We already do things like that to evaluate how much an old vehicle is worth or how much life insurance is worth or something like that.
That being said, it’d also make games with an online service component more of a formal commitment than is the case today, in consumer law. As things stand, that’s mostly done on the on the honor system or via publishers being concerned about loss of reputation, and…honestly, I’d say that in general, that works pretty well. Companies don’t usually just immediately shut down service. But in order to do that, you’d have to have some kind of minimum concept of service that a consumer is actually expecting to get when they buy a game so that you can value how much of that service they actually received.
EDIT: Honestly, think that there’s a fair argument that games like that should make money via “microsubscriptions”. Like, the problem is more that people pay for an up-front game and get free bundled service rather than pay for service, so we have to come up with some kind of totally artificial value of how much the service is worth. You can’t have every game have a subscription as things stand…I mean, game publishers are not gonna take subscription fees of 50 cents each month for a game, because the transaction costs will kill them, though that might well otherwise be perfectly profitable and a viable way to make money. Hmm. Maybe someone like Steam could aggregate subscription fees from all users on Steam, then dole out the subscription to the game services that a given user subscribes to.
One thing to keep in mind, though. They have more money than we do and will use this extra step to make it that much harder for them to face any consequences of their negative actions
This is not unique to Blizzard, and has nothing to do with their latest EULA changes. Binding arbitration has been part of their EULA for years, long before the latest one arrived. (The earliest copy I’ve found is from 2018, and I don’t think it was new even then.)
For reference, here’s a diff showing the latest changes:
https://rentry.co/yuu78kqd
Both that and the unilateral changing of terms post-sale are horrible practices that we should all pressure our legislators to make illegal, and perhaps reject by voting with our wallets, but singling out one company for it takes attention away from the larger issue: It has been widespread in the software industry for a long time.
If EULAs are going to be legally binding, there should really be some standard mechanism, an API, on systems to display one such that the system can record a copy and you can see differences and such. Otherwise, you’re entering into a contract with some random party and only they have a copy or and see what changed across versions.
If such a display API is available on a given platform and isn’t used, could simply make the EULA automatically non-binding.
I’m willing to believe that there are legitimately cases where one does need license agreements to fix issues that extend beyond standard consumer law, but the current situation is simply a dumpster fire. Also, some EULAs have been held unenforceable, so even from the standpoint of the software company, it’s a mess as to whether their license is actually going to stand up; there are no clear lines to which a lawyer can conform to make their license hold up.
Some other possible tweaks:
Require that prior to sale, existence of a EULA be prominently disclosed and be readable.
I personally would much rather have industry adopting standard licenses than having every company creating ad-hoc licenses. Like, in the open-source world, the GPL and MIT licenses deal with a number of problems that open source software runs into, and I can learn once what each entails and quit looking at it. I’d rather have there be agreements for commercial software that work the same way. If industry needs flexibility, I think that it’s reasonable to say that they don’t all need to custom-craft solutions. I’d rather like legislation that encourages industry use of a limited number of widely-used agreements rather than hand-crafting them. Maybe add some kind of tax on non-standard EULAs, dunno.
Disallow change-without-notice as a EULA condition; there should be no legitimate reason for this. If you got agreement once, you can get it again. Require that any change notice also provide a way to see the “delta” between the old license and the new license, just the changes.
I do like the idea of industry standard license.
My thoughts are:
So I think I see what you’re getting at, because I was thinking about it in another comment and considered that, but I think that that’s probably overly-strict. There are some cases where legislation requires that a service provider act differently, and their EULA may be incompatible with that. Or where they’ve made a legal error in their initial EULA – you gotta have some route to fix that. Though I suspect that it’s possible to carve a smaller hole for that than is currently the case.
I have another comment where I make one suggestion to tighten up that hole a bit:
https://lemmy.today/comment/6999434
That avoids the possibility of a bait-and-switch where you agree to one (acceptable) EULA, but then the vendor places you in a position of either agreeing to a new EULA or losing your money.
We already do things like that to evaluate how much an old vehicle is worth or how much life insurance is worth or something like that.
That being said, it’d also make games with an online service component more of a formal commitment than is the case today, in consumer law. As things stand, that’s mostly done on the on the honor system or via publishers being concerned about loss of reputation, and…honestly, I’d say that in general, that works pretty well. Companies don’t usually just immediately shut down service. But in order to do that, you’d have to have some kind of minimum concept of service that a consumer is actually expecting to get when they buy a game so that you can value how much of that service they actually received.
EDIT: Honestly, think that there’s a fair argument that games like that should make money via “microsubscriptions”. Like, the problem is more that people pay for an up-front game and get free bundled service rather than pay for service, so we have to come up with some kind of totally artificial value of how much the service is worth. You can’t have every game have a subscription as things stand…I mean, game publishers are not gonna take subscription fees of 50 cents each month for a game, because the transaction costs will kill them, though that might well otherwise be perfectly profitable and a viable way to make money. Hmm. Maybe someone like Steam could aggregate subscription fees from all users on Steam, then dole out the subscription to the game services that a given user subscribes to.
One thing to keep in mind, though. They have more money than we do and will use this extra step to make it that much harder for them to face any consequences of their negative actions
Just start sending your own terms back to them. They accepted the terms and provided the thing? Great!