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.
I think we have a miscommunication here, so on the topic of online purchases, first let me clarify my intended statements and see what your thoughts are.
By Online purchase, I meant purchase through Amazon.com, or some other Etailer, not a digital delivery system. I concede all of your points on digital delivery as correct.
I disagree that legally notification of terms is sufficient, perhaps things work differently in the EU and the US, but putting a blank "X is required" on the box without defining X doesn't constitute reasonable notice. I cannot put stickers on Orange Juice bottles saying "A foo is required to drink this orange juice", sell a bottle of orange juice, and then tell them before they can open it they must pay me $50,000 for a piece of paper with the word "foo" on it. If a "Foo" is required, then I must make the terms and conditions of Foo reasonably available to the purchaser at the point-of-sale.
Similiarly, I cannot put on the box of a game "Origin required", in a location where the purchaser has no reasonable means of determining what an Origin is, and have it be binding. Especially in the US, where IIRC, there is a law requiring explicit agreement and the option to opt-out of data collection. Purchasing it does not constitute agreement to a contract I was not presented with, which is exactly why there's a screen that forces you to agree to the terms and conditions when you install BF3, except it has already started invading your privacy before you even agree.
Further, once again, I am not subject to the terms and conditions of a contract I did not agree to. If my little brother installs BF3, and I play it the next day without ever seeing the terms, I am not responsible for them. I did not agree to them. He might have, but he does not have the legal right to permit scanning of my files. Just like he doesn't have the legal right to permit someone to search my wallet.
The contract is to a person, not a location. You cannot establish a contract that everyone who enters a location are subject to, without advising every person entering the location of the terms and conditions. I might agree that Origin can scan any and all files I own on my friend's laptop, but I have no files on it, and he did not agree to let it search his files.
In short, the contract applies only to the party who clicks "Accept", Which EA must prove who accepted their contract. Since there's no effort to reasonably notify a parent what an Origin is at the point-of-sale, and no reasonble reason for the parent to think that an Origin meant something that was going to scan their tax documents, there's no way this forms a binding contract.
Finally, I still contend that EA has not made effort of reasonable notice even on installation, because as I have said, the terms to which you agree to are ambiguous, subject to wide interpretation, and constitute an invasion of privacy far beyond the needs of the product. There's no warning "Warning: Origin may scan files that contain federally protected data not limited to tax documents...etc", just a single word, "Software", which I contend is misrepresentation, they are not clearly stating what they intend to do.
In fact, this is not too dissimiliar to the case of the school district that issued laptops, and then activated webcams remotely to observe what students were doing without their knowledge. An event determined to be a gross breach of privacy, that became a federal lawsuit.
http://www.huffingto...e_n_467491.htmlThis is not too dissimiliar, a "Security" device is installed with the game, that can be activated remotely, and gathers data not at all related to the product in question. Webcam...scanning tax documents and phone files. No difference.
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