[MUD-Dev] Blacksnow vs. Mythic News

Steve {Bloo} Daniels bloo at playnet.com
Fri Jun 14 15:06:24 New Zealand Standard Time 2002


Caliban Tiresias Darklock wrote:
> From: "Steve (Bloo) Daniels" <bloo at playnet.com>
 
>> Hmm.  Where did I hear someone say this case was all about the
>> validity of the EULA?  Oh yeah . . . it was me.  >-)

> But it's NOT all about the validity of the EULA.
 
> The validity of the EULA's arbitration agreement simply
> establishes that BSI cannot *sue* Mythic.
 
> Whether BSI can still provide the services it advertises, however,
> is a completely separate matter. And "the case" is not about BSI
> suing, it's about BSI providing those services and the way Mythic
> responded. Nobody really *cares* whether BSI gets any money out of
> Mythic, AFAIK, it's all about whether BSI can do what they do.

If the other provisions of the EULA (regarding copyright and the
like) are also held valid (by the arbitrator), BSI will lose.  The
EULA prevents BSI's 'business model' pretty clearly.

Whatever result the arbitration process, it will not be binding on a
future court's determination (though it may be persuasive).

A future court will have to decide that the arbitration provisions
shouldn't be enforced before the rest of the EULA provisions can be
examined in a court, for claims based on or covered by the EULA.
That's extremely unlikely now.

Assuming all other courts would enforce the arbitration provisions,
there is little room for the other provisions to *ever* be directly
examined by a court.  A court will ask, "Is this a claim arising
under the EULA?"  If yes, Enforce the Arbitration [punt!].  The
court won't have to soil its hands in the practice of quantum brain
surgery that is Intellectual Property Law. Theory.

My 'it's-all-about-the-EULA' point is the plaintiff has to get
around the EULA before it has a chance of doing anything.  The EULA
is essentially a gate-keeper.  If you can't get past it, you're
S.O.L. (a term of legal art) for claims arising under the EULA.
Cerebus has big teeth and many heads. You have to defang,
decapitate, and neuter him before you get any further down the road.
The first head is the Arbitration head. It got a hold of BSI and has
thrown them into the Lake of Arbitration Fire like a wet ragdoll.
And that's only the first head.  The others kick, bite, stomp and
swallow hole.

-bloo


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