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sympathy4sarenreturns wrote...
They want to bend the meaning of a purchase contract. I'm curious what case law exists on the matter, and what Shepardizing of said case law entails. The American courts will crack down hard when such laws are bent. And, as I said, destruction of purchased goods by the seller in a contract is grounds for nullification of the purchase contract. It's simple, basic law. Simple. If by going to resell a purchased game the seller destroys the ability to resell, it not only is vandalism, but destruction of consideration, voiding the original purchase contract.
Knock, knock, civil court system.
Imagine, for instance, car companies wanting to eliminate used car sales. They put a verification code into the engine of the car so it cannot be resold. Does the person who bought the car have ownership of the car? They have possession, but ownership? Contracts detail ownership and possession, and while ownership can be without possession, ownership is always prevelant.
The only way this can be legally done is if they lease games for you to play. But if in any offer of purchase the word "buy" is shown, it is an offer of unconditional purchase under contract law.
Not advice, my analysis. For I am not a lawyer.
It's an interesting topic Saren.
The Gaming Industry's EULA's have never really been tested in court. Lawyers came up with this stuff years ago, claimed software is a service, and it's never been challenged.
It's never been challenged, because there's never been a reason to challenge it. Since it was impossible for the company to identify if a game had been installed more than once, the EULA was meaningless.
Today, the Industry has convinced itself that the EULA is true. Self-reinforcing belief, "It's been there, and no one has declared it illegal, so it must be legal!". So they try to enforce it.
We could see it challenged if Microsoft moves forward, and it's *highly* likely it'll be struck down. EULA's have two massive problems...
1. The consumer is not presented with the terms and conditions prior to, or at, the point of sale. It is not until money has been exchanged, and the product can not be returned if the consumer disagrees, That's not legal, you cannot sell someone something and then present them with restrictive terms after the transaction.
2. It is the Company's responsibility to prove who agreed to the terms. Since the terms are not presented until after purchase, at home, without witnesses, the Company cannot prove any specific individual agreed. The terms of use are completely unbinding, because there's no evidence of who made the agreement. The purchaser can't be held responsible, the purchaser has no idea what the terms are when he makes the purchase. The Player cannot be held responsible, the terms are shown only once when the game in installed, if they're even shown then (Many console games don't make you agree to terms, even though they're there.). Only the Installer can be held liable, but who is the Installer? There's no way to definitively prove that.
As you astutely note, another *huge* problem the game industry has is that they offer products for "Purchase" not "Lease" or "Rent". But this ties back into my point #1.
The truth is, if the EULA's were to go before a court, they'd be thrown out. They wouldn't even make it through pre-trial, because the Company wouldn't be able to demonstrate who they had a contract with, nor would they want to defend their practice of issuing terms only after the exchange.
Further, the EU has already ruled that Digital Property may be resold by the purchaser, and generally the US rules similiar to the EU (And vice-versa). So even Digital isn't a safe harbor for them, plus Digital has many of the same problems as Physical.
Companies continue to try to enforce this "Software as a service" thing, but I strongly suspect that in the next few years it'll go before a court, and the game industry is going to suffer hugely. I wouldn't be surprised to see large punitive fines, and federally mandated changes. The 720 has a very strong chance of causing it to happen in the near term, but even still, it'll happen in the next few years.
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