[MUD-Dev] Contract Law. Was: Blacksnow revisted

Brian Bilek brian at darkalley.net
Wed Apr 3 02:06:06 New Zealand Daylight Time 2002


Caliban Tiresias Darklock wrote:

(snip)

> It is the position of many/most software vendors that an EULA
> constitutes a binding contract, but this has yet to be seriously
> tested in court. It is the position of the world at large that an
> EULA constitutes the ludicrous wishful thinking of a software
> company and does not mean anything, so there's a serious possibility
> that this public perception will prevent any EULA from having much
> if any binding authority over the behavior and rights of the user.

Please forgive me, as I am not a lawyer.  Drawing from my basic legal
training, I do not understand why the EULA might not be considered a
binding contract.  Would you care to elaborate?

First, I am working under the assumption that what Mythic provides is
considered a service with respect to the game itself, and thus would not
be governed by statuatory law.

It seems to me that we have met the basic requirements of a contract.
We have an offer and acceptance, thus Agreement.  We have what appears
to be reasonable legally sufficient Consideration.  We can assume
contractual Capacity - if the consumer is a minor, that person has
fraudulently misrepresented him or herself.  The contract appears not to
call for anything illegal.

So we must assume, until the EULA is challenged in court, that this
agreement is legally binding.  As such, I will quote to you a portion of
the EULA:

  8. Selling of Items You may not sell or auction any Game
  characters, items, coin or copyrighted material.  The selling of
  items, coins or any copyrighted part of the Game's player
  character whether through online auctions (for example eBay),
  newsgroup or postings on message board is in violation of this
  EULA as well as Mythic's Player Code of Conduct. In addition to
  violating our agreement, selling items and/or coin violates our
  legal rights and may constitute misappropriation, and/or tortuous
  interference with our business and tarnishes the goodwill in the
  Dark Age of Camelot(tm) name."

Since I do not know if this was in the original EULA, I also note this
passage:

  2. Other Rights and Limitations

    - This EULA does not grant you any rights in connection with any
    trademarks or service marks of Mythic.  We may amend this
    Agreement at any time in our sole discretion.  Amendments shall
    be communicated to you either a) at the time you log into your
    Account; b) through a conspicuous post on our website. Such
    amendments shall be effective upon entering or re-entering the
    Game.  If any such revision of this Agreement is unacceptable to
    you, you may terminate your membership as per Section 9."

By providing a medium through which BSI could sell game items, Ebay
was participating in an activity prohibited by the terms of the
Mythic EULA.  Mythic didn't need to "lie" to have Ebay agree to end
and prevent such auctions - this was clearly covered under the EULA.

At this point, the argument must SOLELY be that the EULA is an
unenforceable contract.  All other arguments as to BSI's right to do
what they wish are irrelevant unless and until this EULA is deemed
unenforceable.

Since I believe that this is your contention - that the contract is
unenforceable, I am curious as to why you believe so.

> If I am selling a service, which does not yet exist, and therefore
> has no owner, then they cannot tell the mediating party of the
> sale that they own the item being sold. If they do it anyway, then
> yes, it *is* harassment. It is also a lie. Mythic is not allowed
> to lie to a third party in order to enforce its EULA, any more
> than Enron was allowed to lie to its investors to keep the stock
> from crashing.

Mythic simply needed to inform Ebay that item 8 of the EULA,
referenced above, prevented the sale of game items.  This is not a
lie.  Nor is it an enforcement of the EULA - an enforcement would
mean that Mythic would terminate the account.  Instead, Mythic
informed Ebay that the sale of such items was in violation of the
EULA and as such they were participating in an activity resulting
from breach of contract.  I doubt Ebay needed any further incentive
to end the auctioning of DAoC items at that point.

> The fact is, Mythic *can* tell you what to do within certain
> boundaries, and they *can* kick you out for whatever reason they
> want. But when Mythic steps outside those boundaries and starts
> meddling in your life outside their server, they do not have the
> right to do that. Mythic is simply *not* allowed to persecute
> current or former users on the grounds that they have violated
> game policies, and there is no excuse for it.

They did not persecute anyone.  They took no legal action.  Are you
saying that they have no right to inform a third party that they are
participating in an activity which violates their EULA?  Thus,
breach of contract?

-Brian

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