3140 réponses à ce sujet

[Dragoonlordz]

Adugan wrote...

EA kinda f'ed themselves over. Even if they correct the EULA and remove the spyware from the program, Origin will still be the pariah of the gaming industry distribution software. Nobody will want to touch it with a 10 foot pole for years to come due to mistrust and general wariness.

Thought I read somewhere they have over 6-10 million+ users and 3 really big third party publishers or developers just signed up with them to host and sell their products/games through Origin?

[Adugan]

Dragoonlordz wrote...

v_Zalem wrote...

Some of you are saying that you'll abandon PC gaming if trends like Origin continues...while I too don't like the idea of Origin/Steam/Securom, DRM, etc. in general, I believe (and I've said this many times already) that you all should just rekindle your independent spirits and channel your energy into making your own games and such that doesn't have such nonsense so we can put some good back into this.

Just a thought I'd like to emphasize to those thinking about ditching PC gaming.

Nah I won't ditch PC gaming not any time soon for such reasons. I have Origin installed and has done me no harm as of yet, I would also install Steam except Steam isn't that great imho as in I find their games bit expensive compared to other places even when they have a sale on still not cheapest legal versions I can buy.

I only run Origin when I need to re-download a game I might have uninstalled prior. As it stands right now I only have ME2 installed through Origin but it does not require Origin to be open to play, SWTOR I plan on trying and ME3 is on my list to get so that number will increase. I am not a pedo or terrorist or some mass illegal file sharer so I don't really care much about the scanning itself. If they want to know what I find kinky or how many boring hours I spend running work software it's no skin off my back. If however any application tried to steal my [specifically] financial card or account information I would have an issue with the software however.

What if Origin got your cookies and temp files, and added in-game ads catering to your interests and your city of residence?

[Dragoonlordz]

Adugan wrote...

Dragoonlordz wrote...

v_Zalem wrote...

Some of you are saying that you'll abandon PC gaming if trends like Origin continues...while I too don't like the idea of Origin/Steam/Securom, DRM, etc. in general, I believe (and I've said this many times already) that you all should just rekindle your independent spirits and channel your energy into making your own games and such that doesn't have such nonsense so we can put some good back into this.

Just a thought I'd like to emphasize to those thinking about ditching PC gaming.

Nah I won't ditch PC gaming not any time soon for such reasons. I have Origin installed and has done me no harm as of yet, I would also install Steam except Steam isn't that great imho as in I find their games bit expensive compared to other places even when they have a sale on still not cheapest legal versions I can buy.

I only run Origin when I need to re-download a game I might have uninstalled prior. As it stands right now I only have ME2 installed through Origin but it does not require Origin to be open to play, SWTOR I plan on trying and ME3 is on my list to get so that number will increase. I am not a pedo or terrorist or some mass illegal file sharer so I don't really care much about the scanning itself. If they want to know what I find kinky or how many boring hours I spend running work software it's no skin off my back. If however any application tried to steal my [specifically] financial card or account information I would have an issue with the software however.

What if Origin got your cookies and temp files, and added in-game ads catering to your interests and your city of residence?

I would consider that a good thing? Though I have ad blocker for outside game and inside a game wouldn't bother me though would be wierd to have tacos advertised for my town when billboard is say in 2000+ years in future inside game itself ~for simple immersion breaking aspect/standpoint. I would probably think wow when did my crappy little town get so popular that it is advertising tacos on different planet in the future. Though if they can point me to a cheaper coffee house or tell me the location of latest films for uber cheap local I would be happy enough outside game.

But as long as don't try to steal my credit/debit and bank details I'm not angry over it or atleast I can't force myself to be so. I can even understand need to verify legal copies of bought games they have made aka the one time authorising of first run/install product.

They could ideally imho do away with scanning for all but monitoring cheats and/or edited or modified game files though like through current running processes and monitoring the game files of game about to play [online] by requiring if playing online Origin must be running monitoring those two things just mentioned.

I am not pro or con for it, it just doesn't offend or anger me even if it is not the ideal solution I would like and I can't help that. There are other things that Bioware/EA do that anger or more accuratley annoy me much more.. Even if this specific issue doesnt raise my blood pressure.

If at some stage say browsing and come across some kinky article then up popped a chat window video feed on my monitor from an EA person staff other end. Who begins to advise me about "Hello Andrew, I noticed you viewing a site which if like girls who x or y, then try going here <posts link on webchat>. Now is there anything else I can do for you today let me know. No? Ok have a nice day." Then window closes and yes that would be a little too freaky for my liking.

P.s. I admit nothing... In a nutshell I don't care what people think of me or what they think about what I think about. The only thing that matters in this regard for me is my financial information is safe and secure plus I'm [assuming]  being able to play a game bought on steam or origin in this case will not require me to be online unless it's a online game. For example Diablo 3 I consider an online game from the offset same with SWTOR and same with multiplayer mode in ME3 but when playing single player content that has already been registered and authorised but no online function or mode being run then I would be annoyed if could not play with no internet for example ME3 single player campaign. Even then it won't send me into a fit of rage just annoy me and I'll do something else for while till net back. If can't ever get net back I would just sell the game buy something else.

If want to actually come close to anger or great annoyance with me then cut content from a game even if ready upon retail release then ask me to pay for it seporatley. That will get angry response. <hint hint> Bioware + Epic + Rocksteady which all three do just that *cough* DA2=Sebastion, Batman AA=Catgirl, GOW3=Item/Map Pack *cough*. In fact item packs in general ****** me off they are just tacky, so tacky it annoys me even if optional...

Modifié par Dragoonlordz, 05 novembre 2011 - 04:42 .

[Gatt9]

Mister Mida wrote...

I personally would argue that EA, Valve and GameStop want to introduce client-based digital distribution because they want to take control of the market by taking control of the platform.

As Gatt9 just said, if you want to publish a game on a console, you have to go through the console owner. The PC platform doesn't have an owner (despite that most PC's use Windows you don't have to deal with Microsoft to put something on it), hence its flexibility as its greatest virtue. Valve and others probably know this and want to take the platform for themselves. Sneaky and I disapprove of this, yet smart from a business perspective.

These days, Valve, EA, GameStop and others probably give money to other publishers to put their games on their platforms. However, I wouldn't be surprised that as soon as client-based digital distribution is the standard, which I personally hope will never happen, these same companies will ask for money before they put other publisher's game on their service.

I'm getting depressed.

They do and they don't give money.

Generally speaking,  and I'm drawing from research on Gamasutra,  Gamedev.net,  publications found on Gamedev.net,  and public statements G.O.D. Games had publicly made...

...Most game studios get about 10% in royalties on a game that a publisher puts on the shelves,  much less if the publisher contributed to it's development.  The strongest studios and names might manage a little under 20%.

Steam,  OTOH,  gives 45%-60% depending on the studio,  names involved,  and the title.  So 2x-3x more in royalties than a publisher gives.  Plus I'm sure there's a variety of concessions,  like how the cost of bandwidth is determined and such.

So while I've never heard of them handing out cash,  they effectively do by offering significantly better terms.

Modifié par Gatt9, 05 novembre 2011 - 04:48 .

[Gatt9]

billy the squid wrote...
English law as per L’Estrange v Graucob where the precedent was set that if a party accepts the contract they are bound by the terms of that contract whether they have read them or not. Whilst terms of the contract may be incorporated by notice as per Parker v South Eastern Railway the existence of the term must be given to the other party before or at the time the contract is made. The existence of the term is present on EA’s website, which is made reference to on the back of the box, constituting informed consent. In addition although upon purchase you have entered into a legally binding contract you have not yet accepted the terms which are only accepted upon clicking okay on the EULA. If that is not done then you may return the item to the retailer and the contract is voided as incomplete.

What actually constitutes reasonable notice depends on the individual facts of the case. However, as an example:
 

Thompson v LMS C travelled on a excursion train ticket which said on the front, "For conditions see back". On the back it said that it was issued subject to conditions, which were to be found in the railway company timetable. This could be purchased for 6d (approximately 20% of the contract price). One of the conditions on p. 552 of the timetable excluded the company from liability for personal injury to excursion ticket holders. C was injured by the negligence of the company. She was illiterate and had not read the timetable.

HELD: The courts said that there was reasonable notice and they did not take into account the fact that she could not read the term. That did not matter. So the courts said that reasonable notice of the terms had been given. It was an objective test and therefore they did not take into account whether she could or could not read. In addition it was held that only the existence of the term was required not the detail of it.

It, should give some indication as to what can constitute reasonable notice of the term’s existence and as such be an informed party, that fact that all terms are not present on the back of the box does not prevent the user having foreknowledge that they exist before the point of sale.

As to ambiguity of terms that does not immediately render the contract void, The terms may give sufficient indication that the software to be installed will scan all computer systems and their associated files, due to the simple broadness of the statement it is possible the clause relating to files is incorporated by implication if an officious bystander would have assumed the term was implied in the contract, but that is going to be based on the discretion of the sitting judge. I can’t remember from what case the legal principle comes from off the top of my head.

The presentation of a contract does not have to be presented to every user upon the upon initiation of the program, the contract is unilateral. It does not have to be between EA and a specific named party, and as I said EA does not have to prove who accepted the terms, only that the term was accepted, which if one clicked accept on the EULA it was, if EA can‘t prove who accepted the term then it simply brings an action against the legal owner of the property to which the game is connected to, it does not need to determine who accepted the EULA to bring copyright action, although if it can it will. Whether this game has the same terms as any other doesn’t matter.

Regarding the misrepresentation, terms of a contract cannot be misrepresentations, only statements made to induce one into the contract can be misrepresentations. Thus the party must be enticed into the contract in some way that is untrue, the terms are not subject to this, as per the Misrepresentations Act.

Although the details of such a case may be relatively new the legal principles, Case Law, Statute Law are still applicable to the case and will be used as a basis in any legal action.

I disagree that the reference,  if it is present,  constitutes informing the purchaser. 

First,  any online purchase is made without the ability to inspect the box,  making that arguement impossible for an online purchase.

Second,  I contend that we still have the issue that the warning does not state "This game will require software that will scan your computer and all files on it.",  if present it likely says little more than "Origin required to play this game". 

This doesn't constitute any kind of informing of the customer.  Telling someone on the back of a package some program that isn't described is required,  with the full understanding that the purchaser has no way of accessing that information at the point of sale,  isn't informing.  Again,  I contend that it is misleading,  if it states only "Origin required to play this game",  that is not at all the same as "A program that wil scan all of your files is required to play this game". 

For all the purchaser knows,  it could simply be the server that Battlefield 3 runs on.  EA is using understated terms to indicate some piece of software is needed to play the game,  when the only thing the purchaser knows is that the game is played online and some piece of software will be required to access the server.  In short,  EA's letting the end user believe that this is nothing extrordinary,  just a simple piece of software.

But what it is,  is a program completely independent of the game,  that has no real bearing on the game's ability to perform it's functions,  that exists solely to scan the user's computer. 

In short,  EA is packaging a completely seperate piece of software that is not advertised in any way as being unrelated to the actual game the purchaser intends to buy,  and is required for the purchaser to install,  which is then going to perform a act that the user very likely does not want to occur.

EA is effectively misrepresenting Origin as a component of the game,  rather than an independent piece of software with an independent function and an independent purpose,  that the user would likely not willingly buy.  I'm pretty certain that almost no one goes shopping to buy a piece of software that will scan their computer and forward the results to some company.

Further,  the purchaser has no recourse after getting home,  and starting the installation.  At least in the U.S.,  few if any retailers will accept an opened game for full refund.  So buy the time the purchaser is officially made aware of the terms,  the purchaser cannot reject the contract and nullify the purchase.  By the time the purchaser is first made aware of the full terms and conditions,  his money has already been pocketed,  and will not be returned if he chooses not to enter the agreement.  This is not legal.  You cannot take someone's money,  then give them the terms of the contract,  and then refuse to return the money if the terms are not acceptable,  unless such an agreement was made beforehand.  General Motors cannot take my money for  a lease,  then present me a contract that says I must share the car with 12 other people,  and refuse to return my money when I won't agree to that.  The terms must be presented beforehand.

I'm not a lawyer,  but this really appears to me to be Misrepresentation of the software purchased,  and railroading the purchaser into a unwanted contract.

As far as agreement goes,  you kind of illustrate my point.  EA could hold someone responsible for the EULA,  if they could prove who agreed to the EULA,  but they cannot hold just anybody,  or everybody,  responsible if they were never shown the EULA.  The only way the EULA is binding is if it is presented every time Origin is loaded and someone must click,  but they still need to prove who agreed.  If I walk into Best Buy,  play a demo of Battlefield 3,  EA cannot load Origin onto my PC and my Droid because I played a copy of the software and so I must have agreed to it.

EA must show that I was presented with the terms of the contract,  and that I agreed to it.  If I wasn't presented with the terms,  I cannot have agreed to it.  Just like walking into a GM dealer doesn't constitute me buying a $80,000 'Vette because somewhere hidden behind the counter is a sign that says "Anyone walking in this building implicitly agrees to buy a Corvette".

EA must prove *I* agreed to the contract,  not that someone agreed to the contract.  Because while they might have the right to hold someone to the terms and conditions,  until they can prove that I agreed,  they cannot hold me to the terms and conditions. 

EA must prove they made reasonable effort to notify me of the terms.  a non-specific blurb on a box,  if it is present,  doesn't constitute reasonable effort,  it does not tell me what this software is or what it does.  Nor does having the EULA on their site constitute reasonable effort,  telling me that somewhere they posted something doesn't make me responsible,  otherwise every car dealer would have a sign nailed to the inside of their reception desks.

[OH-UP-THIS!]

Let's make this perfectly clear, and understandable for the "hometown-sellouts",K?

E/A is ramming this D/D service, so they(e/a) will NOT receive one thin-ass dime from this consumer.
Figures those nubs couldn't even come up with a name that isn't already in use.

[Adugan]

Dragoonlordz wrote...

Adugan wrote...

EA kinda f'ed themselves over. Even if they correct the EULA and remove the spyware from the program, Origin will still be the pariah of the gaming industry distribution software. Nobody will want to touch it with a 10 foot pole for years to come due to mistrust and general wariness.

Thought I read somewhere they have over 6-10 million+ users and 3 really big third party publishers or developers just signed up with them to host and sell their products/games through Origin?

Ea converted EADM accounts and forum accounts like these ones into Origin accounts. It doesnt mean that people signed up to Origin. Some probably did, but not 6-10 million. Also, publishers will obviously put their games on the service or risk losing money due to lost sales. But again, this does not mean people will BUY products on Origin. 

[Lumikki]

Simples way to say what's the problem is, is that company puts they own needs before they customers. Meaning company wants sertain things to happen, but not all consumer likes what companies try to do to they customers. So, company tries to force the situation for consumers, what cause some consumers rebel and even go to look better deal from somewhere else. Often this is something like pirate product, because it has become better product from the two bad choise. Same what can happen when some dictators don't understand they people, pushing they own needs until people rebel, because no other choise left. More you push people in wrong ways, more resistance you create.

Point of course is that listen your customers and try to do stuff based more to your customers terms as what they can accept, not just from your own need and terms. Don't push, but adapt.

Modifié par Lumikki, 05 novembre 2011 - 06:21 .

[Relshar]

Bogsnot1 wrote...

Relshar wrote...
I am not happy at some random program going through my hard drive and then sending to god knows where on the internet for some guy in a suit to sell to a corp or use to their own devices. 

There has to be a work round for this or a program that can stop it dead. Would a seperate partition work ?

Or a firewall and just block it once you signed the EULA?

Seperate partition wouldnt work, although apparently Sandboxie works. Instructions on how to apply it to Origin can be found here.

Thank you for the links I will read them and see what I can do to seperate EA games from my system. I suppose if I just boxed the User files and Windows folders it wont get to any place because it wont be able to find the paths. No registry or user base to work from.

[vader da slayer]

Gatt9 wrote...

billy the squid wrote...
snip

I disagree that the reference,  if it is present,  constitutes informing the purchaser. 

First,  any online purchase is made without the ability to inspect the box,  making that arguement impossible for an online purchase.

Second,  I contend that we still have the issue that the warning does not state "This game will require software that will scan your computer and all files on it.",  if present it likely says little more than "Origin required to play this game". 

This doesn't constitute any kind of informing of the customer.  Telling someone on the back of a package some program that isn't described is required,  with the full understanding that the purchaser has no way of accessing that information at the point of sale,  isn't informing.  Again,  I contend that it is misleading,  if it states only "Origin required to play this game",  that is not at all the same as "A program that wil scan all of your files is required to play this game". 

For all the purchaser knows,  it could simply be the server that Battlefield 3 runs on.  EA is using understated terms to indicate some piece of software is needed to play the game,  when the only thing the purchaser knows is that the game is played online and some piece of software will be required to access the server.  In short,  EA's letting the end user believe that this is nothing extrordinary,  just a simple piece of software.

But what it is,  is a program completely independent of the game,  that has no real bearing on the game's ability to perform it's functions,  that exists solely to scan the user's computer. 

In short,  EA is packaging a completely seperate piece of software that is not advertised in any way as being unrelated to the actual game the purchaser intends to buy,  and is required for the purchaser to install,  which is then going to perform a act that the user very likely does not want to occur.

EA is effectively misrepresenting Origin as a component of the game,  rather than an independent piece of software with an independent function and an independent purpose,  that the user would likely not willingly buy.  I'm pretty certain that almost no one goes shopping to buy a piece of software that will scan their computer and forward the results to some company.

Further,  the purchaser has no recourse after getting home,  and starting the installation.  At least in the U.S.,  few if any retailers will accept an opened game for full refund.  So buy the time the purchaser is officially made aware of the terms,  the purchaser cannot reject the contract and nullify the purchase.  By the time the purchaser is first made aware of the full terms and conditions,  his money has already been pocketed,  and will not be returned if he chooses not to enter the agreement.  This is not legal.  You cannot take someone's money,  then give them the terms of the contract,  and then refuse to return the money if the terms are not acceptable,  unless such an agreement was made beforehand.  General Motors cannot take my money for  a lease,  then present me a contract that says I must share the car with 12 other people,  and refuse to return my money when I won't agree to that.  The terms must be presented beforehand.

I'm not a lawyer,  but this really appears to me to be Misrepresentation of the software purchased,  and railroading the purchaser into a unwanted contract.

As far as agreement goes,  you kind of illustrate my point.  EA could hold someone responsible for the EULA,  if they could prove who agreed to the EULA,  but they cannot hold just anybody,  or everybody,  responsible if they were never shown the EULA.  The only way the EULA is binding is if it is presented every time Origin is loaded and someone must click,  but they still need to prove who agreed.  If I walk into Best Buy,  play a demo of Battlefield 3,  EA cannot load Origin onto my PC and my Droid because I played a copy of the software and so I must have agreed to it.

EA must show that I was presented with the terms of the contract,  and that I agreed to it.  If I wasn't presented with the terms,  I cannot have agreed to it.  Just like walking into a GM dealer doesn't constitute me buying a $80,000 'Vette because somewhere hidden behind the counter is a sign that says "Anyone walking in this building implicitly agrees to buy a Corvette".

EA must prove *I* agreed to the contract,  not that someone agreed to the contract.  Because while they might have the right to hold someone to the terms and conditions,  until they can prove that I agreed,  they cannot hold me to the terms and conditions. 

EA must prove they made reasonable effort to notify me of the terms.  a non-specific blurb on a box,  if it is present,  doesn't constitute reasonable effort,  it does not tell me what this software is or what it does.  Nor does having the EULA on their site constitute reasonable effort,  telling me that somewhere they posted something doesn't make me responsible,  otherwise every car dealer would have a sign nailed to the inside of their reception desks.

well considering that Origin is free and has been available for DL since June and to digitally download ME3 you first have to download Origin the first thing you see is the EULA before it installs one byte of the client. and if you buy the physical copy it will have to say "Origin required" on the box (iirc there is a regulation, FCC maybe, stating that any program that requires another to run has to have that stated on the box) and if you don't know what this "Origin" is and still buy it before doing your research, your stupid fault.

also in order to accept said EULA you would have to be logged into your computer. so unless you just flippantly go arround allowing anyone on there or stupid open emails from china with keyloggers in them (which are both again your faults) then how could someone put Origin on your computer? and also if you are playing the game then you had to log in to Origin and install the game, meaning you had to use yet another password for the Origin account. see where Im going? also like I said you are present with the EULA before the installer does anything else it asks you if you accept said EULA. there is no implicitness to it. before even one byte of the client is installed it presents you with the ENTIRE EULA (which is actually quite long) and has "Accept" and "Dont Accept" buttons below it (or a check box for accept then a continue button is enabled if you checked the accept box, forget which now been a few months since I installed it). it is VERY explicit in its presentation.

oh and Origins EULA is not ME3's EULA so you can't argue about it needing to be on the game box since the client EULA isn't the games EULA and a court would even agree with me on that.

[whywhywhywhy]

SalsaDMA wrote...

To the ones saying: "What's the big deal", here's some things to consider:

We are talking about buying and using games. Games are merely entertainement products, yet EA wants to break our rights of privacy while they sell us these products.

Would you be comfortable with installing spyware just to listen to a song? Obviously you shouldn't as the Sony rootkit scandal should show from history. Yet this is exactly what EA wants to do, just with games instead of songs.

Just think of it. It's a product you don't really need and you are asked to give up basic human rights for it...

I can imagine it transfered to a more 'common' setting very easy, to give a comparison:
-"Can I get the donut from the middle shelf?"
-"Sure. Now if you just give me your wallet so we can complete the transaction."
-"My wallet? What do you mean, I have the money for the donut here..."
-"Sorry mate. I want to look through your wallet and take copies of anything I find interesting in -there."
-"You want to WHAT? I just want to buy a frigging donut fer chris sake..."
-"I know. But in order for me to sell the donut to you I need to look through your wallet."
-"Like hell you need. Here's the money for the donut, now hand it over."
-"I'm sorry, but I need to look through your wallet first before I can hand over the donut."
-"Go to hell..."

A slight tweak is needed for the analogy, you've already paid for the donut but it won't hand over the donut until it looks at your wallet.

[Mister Mida]

Gatt9 wrote...

They do and they don't give money.

Generally speaking,  and I'm drawing from research on Gamasutra,  Gamedev.net,  publications found on Gamedev.net,  and public statements G.O.D. Games had publicly made...

...Most game studios get about 10% in royalties on a game that a publisher puts on the shelves,  much less if the publisher contributed to it's development.  The strongest studios and names might manage a little under 20%.

Steam,  OTOH,  gives 45%-60% depending on the studio,  names involved,  and the title.  So 2x-3x more in royalties than a publisher gives.  Plus I'm sure there's a variety of concessions,  like how the cost of bandwidth is determined and such.

So while I've never heard of them handing out cash,  they effectively do by offering significantly better terms.

Those kind of royalties surely give publishers incentives enough to bind their games to Steam/Origin/Impulse/whatever, and thereby giving distributors more control of the platform. But as we have found out, not all customers agree to this.

[Merchant2006]

*snip*

|           You're right about that. Still.... I'm not holding out for it.
|
|
V

Modifié par Merchant2006, 05 novembre 2011 - 09:55 .

[Bogsnot1]

^ Dont confuse the Origin account (which is the same account you use to log in here) with the Origin software.

[LilyasAvalon]

Out of curiousity why wasn't there all this fuss when DA2 was released with a free copy of ME2? You needed Origin to install and play that too.

[Michel1986]

ME 3 has origin integration ???

http://uk.xbox360.ig.../1211729p1.html

[Lumikki]

LilyasAvalon wrote...

Out of curiousity why wasn't there all this fuss when DA2 was released with a free copy of ME2? You needed Origin to install and play that too.

Maybe there wasn't enough people made noise about it. I have both DA2 and ME2, but there is no Origin client there. To make public notice something you need enough people with issues, like what did happen with BF3. We got lucky with BF3, because Origin client had other issues too, what did cause enough noise. We are here so this same doesn't happen with ME3, so that we can fully enjoy ME3 game without extra issues, what aren't even really game related.

I don't need Origin client to anything at all, I only need the ME3 single player game.

Michel1986 wrote...

ME 3 has origin integration ???

http://uk.xbox360.ig.../1211729p1.html

PC side, yes, it's very likely that EA is trying to put Origin client in ME3. I just hope EA and Bioware realizes how bad it's for they game sales to force to something to players and consider more voluntary use. Free choise is important.

Modifié par Lumikki, 05 novembre 2011 - 10:50 .

[jerst]

billy the squid wrote...

English law as per L’Estrange v Graucob where the precedent was set that if a party accepts the contract they are bound by the terms of that contract whether they have read them or not. Whilst terms of the contract may be incorporated by notice as per Parker v South Eastern Railway the existence of the term must be given to the other party before or at the time the contract is made. The existence of the term is present on EA’s website, which is made reference to on the back of the box, constituting informed consent. In addition although upon purchase you have entered into a legally binding contract you have not yet accepted the terms which are only accepted upon clicking okay on the EULA. If that is not done then you may return the item to the retailer and the contract is voided as incomplete.

What actually constitutes reasonable notice depends on the individual facts of the case. However, as an example:
 

Thompson v LMS C travelled on a excursion train ticket which said on the front, "For conditions see back". On the back it said that it was issued subject to conditions, which were to be found in the railway company timetable. This could be purchased for 6d (approximately 20% of the contract price). One of the conditions on p. 552 of the timetable excluded the company from liability for personal injury to excursion ticket holders. C was injured by the negligence of the company. She was illiterate and had not read the timetable.

HELD: The courts said that there was reasonable notice and they did not take into account the fact that she could not read the term. That did not matter. So the courts said that reasonable notice of the terms had been given. It was an objective test and therefore they did not take into account whether she could or could not read. In addition it was held that only the existence of the term was required not the detail of it.

It, should give some indication as to what can constitute reasonable notice of the term’s existence and as such be an informed party, that fact that all terms are not present on the back of the box does not prevent the user having foreknowledge that they exist before the point of sale.

As to ambiguity of terms that does not immediately render the contract void, The terms may give sufficient indication that the software to be installed will scan all computer systems and their associated files, due to the simple broadness of the statement it is possible the clause relating to files is incorporated by implication if an officious bystander would have assumed the term was implied in the contract, but that is going to be based on the discretion of the sitting judge. I can’t remember from what case the legal principle comes from off the top of my head.

The presentation of a contract does not have to be presented to every user upon the upon initiation of the program, the contract is unilateral. It does not have to be between EA and a specific named party, and as I said EA does not have to prove who accepted the terms, only that the term was accepted, which if one clicked accept on the EULA it was, if EA can‘t prove who accepted the term then it simply brings an action against the legal owner of the property to which the game is connected to, it does not need to determine who accepted the EULA to bring copyright action, although if it can it will. Whether this game has the same terms as any other doesn’t matter.

Regarding the misrepresentation, terms of a contract cannot be misrepresentations, only statements made to induce one into the contract can be misrepresentations. Thus the party must be enticed into the contract in some way that is untrue, the terms are not subject to this, as per the Misrepresentations Act.

Although the details of such a case may be relatively new the legal principles, Case Law, Statute Law are still applicable to the case and will be used as a basis in any legal action.

Well, I can only say that England sucks in term of customer right

http://ernstfamily.c...vista-et-works/
http://www.clubic.co...s-linuxien.html
(It's in french and there is plenty other case, I just don't want to spam)

The second case is supposed to be in england and the first in Switzerland.

Basically, it is the refund on a software after a "bound sale" (I have no idea how to say it in english... )
After purchasing a Dell computer and finding out at the startup that Windows was installed on it, they had to read the EULA.
They did and refused it.
And after months of legal struggle they managed to get their money back.

So it is not exactly the same thing as Origin, but I think it's still pretty close.

[billy the squid]

jerst wrote...

billy the squid wrote...

My waffle....

Well, I can only say that England sucks in term of customer right

http://ernstfamily.c...vista-et-works/
http://www.clubic.co...s-linuxien.html
(It's in french and there is plenty other case, I just don't want to spam)

The second case is supposed to be in england and the first in Switzerland.

Basically, it is the refund on a software after a "bound sale" (I have no idea how to say it in english... )
After purchasing a Dell computer and finding out at the startup that Windows was installed on it, they had to read the EULA.
They did and refused it.
And after months of legal struggle they managed to get their money back.

So it is not exactly the same thing as Origin, but I think it's still pretty close.

You do have some protection in England, The Unfair Contract Terms Act, Sale of Goods Act, Sale of Goods and Services Act, Data Protection Act etc. It's legislation which tends to stop companies from making some really nasty contracts enforcable. They can still make the contract, but if it breaches the legislation, the company is going to be in trouble.

The case you mentioned looks like the software was already installed, so he couldn't accept or decline the terms of contract. It was a timing issue, so the terms of the contract could not be incorporated as such the contract was void. There is a lot of case law giving examples on timing of incorporation, what constitutes a term, acceptance, discharge etc. A lot of detail there.

[Merchant2006]

^ Yep.

Heck, you could even bring in the Human Rights Act from the UK. Is this breaching your human rights? To what extent? You can look over the act yourself and well... a right to a private life. The fact that EA are stating that they can look through your computer and the evidence to prove as such... well....

Okay, Contract Law was done 2 years ago so I'm a bit rusty but from what I'm reading some people are right, others are wrong. Yes, this is a contractual agreement but think about it.

People are saying "but your agreeing to this, so the moment you install it's an agreement and that's that."

Well what if you needed a bottle of water, but the person selling it to you said that he can enter your home whenever he wants but he's not likely to because he's a billionaire. Does that make any difference? Clearly it doesn't. Sure it may be a bad example but just because something is a contract it has to ensure that it is under fair terms. There is evidence of what I would consider as economic duress.

In lamens terms, Economic Duress is 3 things: The duress has 'pressure' on the 'victim' and (a) There's a form of compulsion on the victim to go ahead, ( where the contract is illegitimate and © there is a cause making the person enter into the contract.

So aren't the 'victims' of this (i.e. the people who are using or agreeing to the terms in the EULA for Origin) being made to install it? I mean look at battlefield 3, you must install it! The contract is illegitimate (debatable) but the terms are not fair, and theres a cause for the person to enter the contract, i.e. you wish to play the game, but there is no other choice?

To go even further, just take a look at the UK's "Unfair Terms in Consumer Contracts Regulations 1999", it states that "unfair terms" can amount to:

s.5(1) - A contract(ual) term which has not been individually negotiated shall be regarded as unfair if (contrary to the requirement of good faith.... rofl good faith by EA, hahahah), it causes a significant imbalance in the parties rights and obligations arising under the contract.

But.. is this a contract? I mean... that's the big question at times isn't it? The fact that EA states that they can systematically go through your computer but put up their hands in defence saying "oh no, we wouldn't dare" mean that this specific term in the Origin EULA is that it's implied? "Just because they "imply" doesn't mean they will!" says the EA spokesperson, but the fact that the term is there, whether the term says "WE WILL SCAN YOUR PC" or "We COULD scan your PC, but I doubt we will" i.e. an express (clear) or implied (vague) term doesn't matter, it's still there. And the implied term is breaching people's rights.


Jeez, yanno what, like I said my Contract Law knowledge is a bit on the rusty side as I studied it in my 1st year and now I'm in my finals at University but... whatever. If only I had a lot of money, time and support and I was a qualified solicitor rather than a student... well... it'd be nice to take on this issue.

[SalsaDMA]

whywhywhywhy wrote...

SalsaDMA wrote...

To the ones saying: "What's the big deal", here's some things to consider:

We are talking about buying and using games. Games are merely entertainement products, yet EA wants to break our rights of privacy while they sell us these products.

Would you be comfortable with installing spyware just to listen to a song? Obviously you shouldn't as the Sony rootkit scandal should show from history. Yet this is exactly what EA wants to do, just with games instead of songs.

Just think of it. It's a product you don't really need and you are asked to give up basic human rights for it...

I can imagine it transfered to a more 'common' setting very easy, to give a comparison:
-"Can I get the donut from the middle shelf?"
-"Sure. Now if you just give me your wallet so we can complete the transaction."
-"My wallet? What do you mean, I have the money for the donut here..."
-"Sorry mate. I want to look through your wallet and take copies of anything I find interesting in -there."
-"You want to WHAT? I just want to buy a frigging donut fer chris sake..."
-"I know. But in order for me to sell the donut to you I need to look through your wallet."
-"Like hell you need. Here's the money for the donut, now hand it over."
-"I'm sorry, but I need to look through your wallet first before I can hand over the donut."
-"Go to hell..."

A slight tweak is needed for the analogy, you've already paid for the donut but it won't hand over the donut until it looks at your wallet.

Actually it was mostly to show how ludicrous a requirement it is to force customers to install spyware in order to play a game.
I'm pretty sure nobody would accept the terms of letting someone rifle through their wallet to buy a donut, yet some people can't see the problem of letting EA do it for a game.

[Merchant2006]

LilyasAvalon wrote...

Out of curiousity why wasn't there all this fuss when DA2 was released with a free copy of ME2? You needed Origin to install and play that too.

That's what happens when you don't read the fine print.

I mean, who on earth reads through the entire mobile phone contract when they sign up with a company? Clever people do, or people who want to know what they are signing up for. And when you realise the amount of sheer buttnonsense there is in the contractual terms you will be amazed for the ridiculous things you are signing up for. I was told that if I wanted to leave Vodafone (as they were not giving me a great service) that I had to pay around £400 to leave. £400.

For what? Oh right, "it says under the contract" I was told. I took it out and read the terms i was agreeing to and they were right. Did I know that? nope. That's why (while it may be tedious) I read through everything nowadays.

People don't care when they don't know. Ignorance is bliss they say and I'd love to just go ahead with these things but the big deal here is what if you went to cut some new keys for your apartment and the keymaker said he had the right to make a copy for himself and write down your address.

So... yeah... that's the fuss. Surely the keymaker won't waltz into your home and take whatever he needs.

Modifié par Merchant2006, 05 novembre 2011 - 12:41 .

[billy the squid]

Gatt9 wrote...

billy the squid wrote...

...

...

Online purchase is done via the Origin downloadable site, which contains the terms and conditions on the page and is presented to the purchaser.  Neither does the notice, that there are terms and conditions, have to state the details of those terms or what it does, only that terms exist and where they can be found.
 
It varies a bit depending on the case in question as to what constitutes reasonable notice, of the existence of the term, but it has been held that whether you have read the term or not is completely irrelevant . But, I have already given the cases where the fundamental principles upon which legal decisions are based were drawn from.

The existence of the terms was already present before the point of sale, ie: reference to terms on the reverse of the box or in the manual after sale, but does not prevent the product from being returned. And digitally the terms were presented before any purchase was made on the Origin site. Considering the judgement in Thompson, where it was held literacy of the user was not a prerequisite for the terms being valid, I don't think claiming that terms and conditions being included under the terms tab on a download site doesn't constitute sufficient notice is going to hold much weight.

Origin is a download manager, I believe that the purchases are done through it and so is the authentification, it is easily arguable that the software is a requirement for the provision of services. Whether it has any bearing on the game's ability to perform its function or that people are aware of what it does or not when they accepted it is irrelevant. Action could only be brought if it breaches the Statutory Laws such as Privacy laws in Germany.

As to opened games, As I stated, not a problem in England we can return products opened within the statutory time limits created by the Sale of Goods Act. In the US I can see that being a problem, but the notice of existence of terms was placed on the reverse of the box, as I said, notice of the existence is sufficient, there does not need to be any detailed expailanation of what the terms are. The notice was in existence before and at the point the contract was entered into, you then subsequently enered into the contract via the purchase.

Misrepresentation comes in several forms, inoccent, fraudulent and under the stipulations of the Misrepresentations Act. But all, work on the premise that the user was induced to enter into the contract by a false statement. There is no statement as to the software and as a general rule, silence cannot constitute misrepresentation, unless EA deliberately coverd up the inclusion of Origin, which they haven't if you downloaded it and paticularly as there is enough information as to whether it require Origin at a retai level as well.

In addition Statutory Misreresentation only works If you have a contract, no contract no chance. Common law Misrep does not need a contract, but the burden is on the claimant to prove it.

As to the agreement. EA's EULA is a unilateral contract it does not need to specify which party entered into it in the terms and you agreed to the EULA when you clicked okay before the software was installed. As I stated, in L'Estrange, you do not have to read the terms, if you clicked accept, you accepted it. That is where the contract ends, a new contract is not formed every time Origin is loaded it is a continuation of the existing contract Ipso facto, no EULA required to be present upon each susbsequent use of the software.

And the entry into GM does not create and acceptance to buy, nor an offer to a purchase, it is an intention t treat. None of the required constituent parts of the contract requirements are present in that example. They are when you purchased the game.
 
I also explained that EA will not only go after you alone. If the act is done on a property, ie a parent's house, the legal owner is legally responsible for the acts which take place on their property, unless they can prove otherwise, hence copyright legislation. That is sufficient. Or, if it is proved that you are the primary user of the software and have the required Origin Account then you can't have accepted the EULA without knowledge of it. So getting someone else to accept it for you does not work, you still had full knowledge of the existence of the terms. As to minors Guardian ad Litem still bears responsibility for the act of a minor, even if one claims a minor did it.

Finally as I said, EA does not have to make a reasonable effort to explain what the software does, only that it exists, unless one trie  to use non est factum. And unfortunately placing notice of the terms on the box, the website, at the point when it was put into the disk drive, digital download started is going to constitute reasonable notice as I already explained in the Thompson case, there are other cases, but I'm not about to list them and go through the fact and apply it to EA. Whilst car manufacturers also have notices of "see... for terms and conditions" that can consitute reasonable notice of the existence of terms. As I said, the details and explaination of the term do not have to be included in the notice for the term to be incorporated.

[biomar]

SalsaDMA wrote...

Actually it was mostly to show how ludicrous a requirement it is to force customers to install spyware in order to play a game.
I'm pretty sure nobody would accept the terms of letting someone rifle through their wallet to buy a donut, yet some people can't see the problem of letting EA do it for a game.

I haven't been following this, so tell me: Origin looks through the contents of your computer or, more in line with the analogy being used here, looks through your bank account? Somehow I doubt it.

[Dragoonlordz]

SalsaDMA wrote...

whywhywhywhy wrote...

SalsaDMA wrote...

To the ones saying: "What's the big deal", here's some things to consider:

We are talking about buying and using games. Games are merely entertainement products, yet EA wants to break our rights of privacy while they sell us these products.

Would you be comfortable with installing spyware just to listen to a song? Obviously you shouldn't as the Sony rootkit scandal should show from history. Yet this is exactly what EA wants to do, just with games instead of songs.

Just think of it. It's a product you don't really need and you are asked to give up basic human rights for it...

I can imagine it transfered to a more 'common' setting very easy, to give a comparison:
-"Can I get the donut from the middle shelf?"
-"Sure. Now if you just give me your wallet so we can complete the transaction."
-"My wallet? What do you mean, I have the money for the donut here..."
-"Sorry mate. I want to look through your wallet and take copies of anything I find interesting in -there."
-"You want to WHAT? I just want to buy a frigging donut fer chris sake..."
-"I know. But in order for me to sell the donut to you I need to look through your wallet."
-"Like hell you need. Here's the money for the donut, now hand it over."
-"I'm sorry, but I need to look through your wallet first before I can hand over the donut."
-"Go to hell..."

A slight tweak is needed for the analogy, you've already paid for the donut but it won't hand over the donut until it looks at your wallet.

Actually it was mostly to show how ludicrous a requirement it is to force customers to install spyware in order to play a game.
I'm pretty sure nobody would accept the terms of letting someone rifle through their wallet to buy a donut, yet some people can't see the problem of letting EA do it for a game.

Because it is not like looking through your wallet, more akin to looking in your shopping bag as you leave the store incase you stole something. Or scanning your backpack or luggage as go through the terminal at an airport after bought plane ticket. While inconvienant and somewhat annoying it is not the same as them looking at my bank statement/credit card details and how much cash I have. [imho]

Modifié par Dragoonlordz, 05 novembre 2011 - 01:22 .