billy the squid wrote...
Gatt9 wrote...
@billy the squid
The difference here is, prove it was me who agreed to the terms. Prove that the person who agreed wasn't under 18. That makes this a whole different case from anything prior, where two parties exchange goods under clearly mutually agreed on terms with full knowledge that both parties were legally able to enter into the agreement.
EA can't prove that. EA can't prove who signed the contract. EA can't even prove who played the game. EA can't prove that the party who agreed was legally able to do so, nor can EA claim that the parties should have known, since there's no precedence for a video game scanning your tax files and your phone files. EA can't prove anything.
Previously, EA's fallback was Copyright law, even though they couldn't prove you agreed to the EULA, they could prove that you violated Copyright law. They can't do that now, there's nothing that gives them the fallback right to scan your tax files.
Initally whoever bought the game has formed the contract with EA and is as such liable for the acceptance of the terms. There is also the Third Party Rights Act which covers third party involvement in contracts. If the individual is a minor, but if the product has been bought by an adult the the adult still remain liable as they formed the contract by purchasing the game. In addition there exists Guardian ad litem, who is responsible for the actions of the minor. EA don't have to prove who accepted the EULA, only that it was accepted by the end user who ever that maybe, it is increadibly wide ranging.
Simply by purchasing the item a contract has been formed, via Offer, Intention to create a Legal Relationship, Acceptance and Consideration if those criteria are met it consitites a contract with the party. Neither are both parties required to mutually negotiate the terms of a contract for it to be valid nor do the terms of the contract have to be known, only that the terms exist and are accessible to the purchaser. These would be standard terms of business or a contract of adhesion, It is simply unworkable to allow all contracts to be negotiated individually. You could try it, but no business would ever accept it.
The recourse that can be used is to argue that the terms are in breach of Statute, Case Law or void for uncertainty principles. The formation of the contract and its legality are seperate from the enforcablity of the terms, contracts can be considered to legally bind parties, but certain terms can be severed if they are found to be unfair/uncertain, without rendering the contract void.
The problem of the scanning is that it is not reflective of the terms of the EULA the broadness of the terms potentially renders it void for uncertainty along with the potential breaches of the Data Protection Act. If one did not accept the EULA then one is in automatic breach of the copyright legislation as you are not licensed by the licensor to use the IP. The origin issue is not one of copyright or illegality of the contract based on acceptance, it is based on the enforcability and validity of the terms and whether they are infact void under statute, uncertainty principles or case law.
I understand what you're saying, but I still disagree that this is true.
The problem I am having with your counter-arguement is that your arguement is based on the principle that the purchaser had reasonable foreknowledge of the EULA prior to purchase, and hence made the purchase under informed circumstances.
But this is not true. The purchaser under all circumstances must be considered ignorant of the terms of the contract the game(s) operate under. The terms of the contract are not presented to the purchaser at the point of sale, nor are they printed on the packaging. For all intents and purposes, EA presents the game(s) as if they were identical to all other offerings.
As such, no contract by purchase can be inferred. Nothing like this has ever been done before, so there is no reason for the purchaser to investigate the terms prior to purchase. The first time the purchaser will become aware of the terms is after purchase, on installation, after scanning has been initiated.
Further, the contract uses extremely ambiguous wording, wording that is subject to interpretation. The merrian-webster dictionary is defining it as...
a: the entire set of programs, procedures, and related documentation associated with a system and especially a computer system; specifically: computer programs
b[/i]: materials for use with audiovisual equipment
Which a member of the field would read as any and every file on a computer, but a layman would read as the programs themselves, and not associate Tax files or Phone files as software, because those things are used by programs, not part of the programs.
Further, the contract will not be presented to every user as they initiate the program, it will be presented to one user, at the time of installation. So one cannot even argue parental consent, because there's no indication anything is different with this game from every other game anywhere until the installation process is initiated.
So, to be honest, EA still can't prove who "agreed" to the terms, nor does purchasing imply acceptance. Further, the contract itself is subject to interpretation because the way EA is defining words, and the way everyone else defines them are two completely different things.
Worse, one could argue that the entire contract is itself a contract of misrepresentation, and so not legally binding. As I asserted earlier, the contract is not presented on the package, or at the point-of-sale, there's no indication that the game requires you to accept scanning of completely unrelated and legally protected files. There's no reason for anyone who was not there at the moment the EULA was presented to think that use constitutes an agreement of something other than Copyright law, and no disclaimer to those under 18 to inform them that they must have a parent agree for them. No warning that sensitive data may be scanned, just the ambiguous term "Software", and the software initiates the scan before the agreement is even accepted.
In short, I don't believe this is anything like any other case, and I believe that the entire EULA is completely illegal on the grounds of Misrepresentation and failure to inform at point-of-sale.
Modifié par Gatt9, 04 novembre 2011 - 10:21 .
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