I have a lot of colleagues in the game industry and I've also had an internship at a gaming studio. I can tell you, they're not about to discuss any sort of CSR decisions, including bans, in public. It's just not worth the headache, because it turns into a he said/she said situation so quickly.
It's not a matter of getting sued as much as it is not wanting to escalate a situation to that level. If someone is violating the TOS or is exploiting or hacking or whatever, best to just ban them and move on. You don't sit around and parse the details. It's just very cut and dried -- that person did something bad enough to break the rules, so they're gone. Case closed. You just move on and worry about the players you've got left.
Oh it's possible for a customer to win if a representative of a company says something really really stupid. People have sued for defamation in small claims courts where there's a lower standard of proof and less cost involved. You don't even need a lawyer. It's an unlikely event but the best way to avoid it is still to not talk about bans.
Hmmmm... The standard of proof in court is always the same -- you have to show that your side is more likely to be the truth than the other side. Small claims is less formal and cheaper since neither side can bring a lawyer.
I'm suspicious of your claim that libel actions can successfully be brought in small claims. The reason is that to win a libel suit (this is in the US, btw), you have to prove certain things that are not easy to prove.
FIrst, if you can prove that the people who made the statement knew it was false AND that they said it intending to hurt you, then you don't need to prove you suffered monetary harm. However, proving what someone else knew or intended is very difficult. You'd need something like a copy of an internal memo showing malicious intent.
If you can't prove that they knew it was false and acted maliciously, then you have to prove actual harm. "They hurt my feelings" won't do. You have to show that your reputation in the community was damaged, and that this damage resulted in some loss of status or loss of business.
Invective -- meaning things that are said to be mean, without regard for the truth -- don't satisfy either standard. "Don't listen to him, he's just a lowlife loser who likes to eat bugs!" would not count, because people hearing it would know it's not true. It doesn't matter how malicious the intent is.
I'm not a lawyer, but US libel/defamation law isn't simple or straightforward. Just because someone lied about you and was mean about it doesn't automatically get you a big payday.
I can also roleplay the tower in a chess game and shout "is that a peasant at the horizon I see? I will smash it I will! Oh damn I broke one of my merlons!". -- maji
Also, you have about as much chance of winning a countersuit for "mental health" as you do of skiing to the moon. This is another misconception about US tort law.
Many states in the US simply don't allow lawsuits for emotional distress, without some physical harm involved. I slammed into your car, causing injuries AND you can't sleep any more -- that's fine. *IF* you can get a doctor to testify in court (at $400 per hour for examination, report writing and testimony -- expect to pay $5000 or so per doctor) that the insomnia is directly related to the injury.
But what you're talking about is called Intentional Infliction of Emotional Distress. In the states that allow this cause of action to stand on its own, it is extremely difficult to win. Judges, and particularly appellate judges, **hate** IIED cases. They scrutinize everything beforehand to make sure the jury only hears evidence that has some factual support. If you present your case to the jury, you'll have to prove that your quality of life has been *noticeably* or demonstrably damaged. I don't expect that "I'm so upset that now I can't play any video games so my quality of life is very bad" will convince a jury.
You usually need some physical manifestation of anxiety or distress -- insomnia, hives, hysteria, change in personality. Despite what you see on TV or may have heard, these conditions are very difficult to fake. The case will take two years, during which you'll be spied on by private investigators and evaluated by the other side's medical experts. If YOUR ATTORNEY believes you're lying, your attorney can face disciplinary charges for going forward with the case. If you get caught lying, you can do prison time.
I can also roleplay the tower in a chess game and shout "is that a peasant at the horizon I see? I will smash it I will! Oh damn I broke one of my merlons!". -- maji
The standard of proof in every country, in every court, in every jurisdiction is the same? Don't think so.
Small claims is peculiar to the US, so I assumed we were talking about the US. My apologies for not being clear on this.
And if we are talking about the US, then yes. Absolutely. The standard of proof in civil courts, regardless of jurisdiction, regardless of the level or degre of formality is always the same:
"Preponderance of the evidence". That is, if the jury believes that it's 50.001% likely that you're telling the truth, you should win. If it's 49.999%, you should lose.
Technically, I believe it's possible for a state to establish a higher standard of proof for civil cases without violating due process. However, I'm pretty sure that all 50 US states and the federal system use preponderance of the evidence as the standard in civil cases.
There are exceptions, but only with regard to specific portions of the case. So, while a libel case always uses preponderance as the standard, if you're trying to prove libel per se (that's the one I referenced earlier where you can prove they knew it was false and did it intentionally to harm you), then as to the knowledge and malice portions of the case there is a higher standard of proof required. It's called "actual malice", and it's definition is too technical to get into here -- suffice to say it's higher than "preponderance" but slightly lower than "beyond reasonable doubt". However, the US Supreme Court has mandated that states may not use a standard lower than actual malice for libel per se cases. So yeah. I don't even think a small claims court is equipped to deal with libel per se, but if they were it would unconstitutional for that court to have a lower standard.
SO, yeah. The upshot of all this is that bacon is delicious.
I can also roleplay the tower in a chess game and shout "is that a peasant at the horizon I see? I will smash it I will! Oh damn I broke one of my merlons!". -- maji
there is no legal or civil action one can take against a mmo company for being banned...And here is why....When you instal the game there is this thing called and end user legal aggrement...I will simplify this. Its a like a pre-nup that says the following. This is our game not yours, We make the rules as we see fit, You use this software and service at our discretion not yours. If you violate our terms of service we can take what ever action we see fit. Terms of service subject to chage as we see fit and we are not required to notify you of any changes...
Now since this is built into the games installer as well as every time there is a patch you are forced to read this, if any actually do you can not claim you had no idea and any attorney you take a claim to will look at you and say did you see a eula when you installed the game.....The fact you didnt read it does not pardon you from the effects of it.
Interesting side not to this...When diablo 3 and the cash shop auction house comes out there will be some interesting aspects to your standard eula as well as tos that may actually give some base protections to the player base as money transactions and handling are a rather regulated thing and would be subject to civil and criminal charges.
Its not illegal as per law, its just counterproductive and overexhaustive to point that only one mmo has ever disclosed bans (they crucified banned people on crosses and put them around game world)
fact is: 99% of people who get banned in a MMO are idiots, its never a good idea to argue with an idiot.
If I remember right, Anarchy Online used to do public executions or something.
If I remember right, Anarchy Online used to do public executions or something.
That would be an awesome in game event. Stone the exploiters and receive unique prizes. Everyone gets to pick up their rocks after the event with the blood of the hacker still on it. The description could read "Stone of blah blah blah, Thank you for helping us uphold the integrity of our game!"
A little off track of thread but still pretty funny!
"People are stupid; given proper motivation, almost anyone will believe almost anything. Because people are stupid, they will believe a lie because they want to believe it's true, or because they are afraid it might be true. People's heads are full of knowledge, facts, and beliefs, and most of it is false, yet they think it all true. People are stupid; they can only rarely tell the difference between a lie and the truth, and yet they are confident they can, and so are all the easier to fool."
there is no legal or civil action one can take against a mmo company for being banned...And here is why....When you instal the game there is this thing called and end user legal aggrement...
The deal is made when you buy the product, usually in a shop, the agreement should be presented, in printed form, before the sale is made. If not, the enitre Eula thing is void, legally meaningless.
But getting your right in reality is another matter, and for a product with a sale-value of €60 it seems utterly pointless to pursue it.
there is no legal or civil action one can take against a mmo company for being banned...And here is why....When you instal the game there is this thing called and end user legal aggrement...
The deal is made when you buy the product, usually in a shop, the agreement should be presented, in printed form, before the sale is made. If not, the enitre Eula thing is void, legally meaningless.
But getting your right in reality is another matter, and for a product with a sale-value of €60 it seems utterly pointless to pursue it.
You're actually wrong here. Courts have allowed EULA to be binding, even if it's after the sale of the good as long as it's before you use the product for online goods.
It used to be how you stated, but the laws and courts have changed with more and more software and online products coming to the market. So the EULA is not void or meaningless.
there is no legal or civil action one can take against a mmo company for being banned...And here is why....When you instal the game there is this thing called and end user legal aggrement.
In EU countries you can allways take legal action. Law is above contracts, and it's possible to challenge the validity, compliance with law, interpretation or balance of the contract. Even if there's a clause where a person would agree about alternative method to settle disputes or waive his rights, the contract can still be brought to court by arguing about that clause.
there is no legal or civil action one can take against a mmo company for being banned...And here is why....When you instal the game there is this thing called and end user legal aggrement...
The deal is made when you buy the product, usually in a shop, the agreement should be presented, in printed form, before the sale is made. If not, the enitre Eula thing is void, legally meaningless.
But getting your right in reality is another matter, and for a product with a sale-value of €60 it seems utterly pointless to pursue it.
You're actually wrong here. Courts have allowed EULA to be binding, even if it's after the sale of the good as long as it's before you use the product for online goods.
It used to be how you stated, but the laws and courts have changed with more and more software and online products coming to the market. So the EULA is not void or meaningless.
You'have to hand me something about that within dutch jurisdiction then, I haven't seen anyhting to support your claim. I am now in doubt though if it was sufficient to point potential buyers to online copies of the Eula, before the sale. There's also been a case about some customer demanding a refund on a pre-installed piece of software with license/eula he didn't agree to. In practice it would probably mean the retailer would have to refund.
Anyway, I am curious who actually reads them before buying and then still buys a game, reading eula's tends to depress me to the point that I completely loose my interest - in the game.
Edit: changed point about loosing my interest in the game
You'have to hand me something about that within dutch jurisdiction then, I haven't seen anyhting to support your claim. I am now in doubt though if it was sufficient to point potential buyers to online copies of the Eula, before the sale. There's also been a case about some customer demanding a refund on a pre-installed piece of software with license/eula he didn't agree to. In practice it would probably mean the retailer would have to refund.
Anyway, I am curious who actually reads them before buying and then still buys a game, reading eula's tends to depress me to the point that I completely loose my interest.
No clue on what laws the european countries have on these issues and how it works across juristictions.
US court rulings on this issue pretty much boil down to the fact that the company has to offer the customer a refund if he/she declines to agree to the EULA/ToS after installing the game. Pretty much all of them will have a statement to that effect somewhere in there.
In general EULA/ToS will be held binding if they deal with issues to do with using the software and disallowed on things outside it. For MMORPGs the ToS are not really that strict contracts with both sides allowed to terminate the contract with little notice. The issue of bans is about the breech of provisions and any real damages will be limited to any outstanding subscription amounts.
If you agree to a EULA without reading it, you only have yourself to blame if it ends up biting you in the rear. By their very nature game EULAs are not really serious contracts but they are still contracts so don't be suprised to find that you can legally sing away certain rights in them.
I meant loosing interest in the game while reading the Eula. Perhaps if people would read ula's and then not buy, they'd start writing them a bit more user-friendly and without the complete lack of respect for their customer that they tend to show.
A refund when you do not agree with the eula sounds fair enough, though I imagine it may be hard to really do when you're about to install ....
But if you say
"In general EULA/ToS will be held binding if they deal with issues to do with using the software and disallowed on things outside it."
with regard to ToR's eula would that mean that sections 2, 5 and the stuff regarding privacy and the sharing of information fall withing "things outside it"?
Edit: I based myself on the Dutch language version on the same site, but with later review of the us-english version I find that the dutch version differs frot he original because it speaks of applications, plural, non capitalized, implying 'applications in general'. Sorry.
I meant loosing interest in the game while reading the Eula. Perhaps if people would read ula's and then not buy, they'd start writing them a bit more user-friendly and without the complete lack of respect for their customer that they tend to show.
A refund when you do not agree with the eula sounds fair enough, though I imagine it may be hard to really do when you're about to install ....
But if you say
"In general EULA/ToS will be held binding if they deal with issues to do with using the software and disallowed on things outside it."
with regard to ToR's eula would that mean that sections 2, 5 and the stuff regarding privacy and the sharing of information fall withing "things outside it"?
Edit: I based myself on the Dutch language version on the same site, but with later review of the us-english version I find that the dutch version differs frot he original because it speaks of applications, plural, non capitalized, implying 'applications in general'. Sorry.
Well as contracts EULA/TOS are written in legalese so naturally are hard to read for lay people. I have taken a contract course in university so I generally do not have those issues.
The main issue with the refunds is that you usually have to deal direct with the publisher since the retail store you bought the game in will not take it back if opened. So while it is there and will be honored, it might not be exactly easy to do.
Issues of 'privacy and sharing of information' are very dependant on which country you are in. European countries tend to have stricter laws about this which would invalidate a EULA/TOS provision that says otherwise. This is why the US version would be different than that for other countries. Things get even messier when you talk about conflicting juristictions like someone from Holland playing the US version on US servers.
Judges get leeway when interpreting contracts and for things like EULA/TOS anything 'non-standard' might be thrown out in court. So while a basic 'you cheat in our game, you will get banned' will stand, things dealing with sharing of information or additional fees will be questioned if a lawsuit is filed.
Comments
I have a lot of colleagues in the game industry and I've also had an internship at a gaming studio. I can tell you, they're not about to discuss any sort of CSR decisions, including bans, in public. It's just not worth the headache, because it turns into a he said/she said situation so quickly.
It's not a matter of getting sued as much as it is not wanting to escalate a situation to that level. If someone is violating the TOS or is exploiting or hacking or whatever, best to just ban them and move on. You don't sit around and parse the details. It's just very cut and dried -- that person did something bad enough to break the rules, so they're gone. Case closed. You just move on and worry about the players you've got left.
*coughs* Depends ...
German courts rules that the 'origin' contract was in violation of german law and sort of asked EA to change it :P
Not sure how they settled as EA has no company seat in german to sue it seems
Hmmmm... The standard of proof in court is always the same -- you have to show that your side is more likely to be the truth than the other side. Small claims is less formal and cheaper since neither side can bring a lawyer.
I'm suspicious of your claim that libel actions can successfully be brought in small claims. The reason is that to win a libel suit (this is in the US, btw), you have to prove certain things that are not easy to prove.
FIrst, if you can prove that the people who made the statement knew it was false AND that they said it intending to hurt you, then you don't need to prove you suffered monetary harm. However, proving what someone else knew or intended is very difficult. You'd need something like a copy of an internal memo showing malicious intent.
If you can't prove that they knew it was false and acted maliciously, then you have to prove actual harm. "They hurt my feelings" won't do. You have to show that your reputation in the community was damaged, and that this damage resulted in some loss of status or loss of business.
Invective -- meaning things that are said to be mean, without regard for the truth -- don't satisfy either standard. "Don't listen to him, he's just a lowlife loser who likes to eat bugs!" would not count, because people hearing it would know it's not true. It doesn't matter how malicious the intent is.
I'm not a lawyer, but US libel/defamation law isn't simple or straightforward. Just because someone lied about you and was mean about it doesn't automatically get you a big payday.
I can also roleplay the tower in a chess game and shout "is that a peasant at the horizon I see? I will smash it I will! Oh damn I broke one of my merlons!". -- maji
Also, you have about as much chance of winning a countersuit for "mental health" as you do of skiing to the moon. This is another misconception about US tort law.
Many states in the US simply don't allow lawsuits for emotional distress, without some physical harm involved. I slammed into your car, causing injuries AND you can't sleep any more -- that's fine. *IF* you can get a doctor to testify in court (at $400 per hour for examination, report writing and testimony -- expect to pay $5000 or so per doctor) that the insomnia is directly related to the injury.
But what you're talking about is called Intentional Infliction of Emotional Distress. In the states that allow this cause of action to stand on its own, it is extremely difficult to win. Judges, and particularly appellate judges, **hate** IIED cases. They scrutinize everything beforehand to make sure the jury only hears evidence that has some factual support. If you present your case to the jury, you'll have to prove that your quality of life has been *noticeably* or demonstrably damaged. I don't expect that "I'm so upset that now I can't play any video games so my quality of life is very bad" will convince a jury.
You usually need some physical manifestation of anxiety or distress -- insomnia, hives, hysteria, change in personality. Despite what you see on TV or may have heard, these conditions are very difficult to fake. The case will take two years, during which you'll be spied on by private investigators and evaluated by the other side's medical experts. If YOUR ATTORNEY believes you're lying, your attorney can face disciplinary charges for going forward with the case. If you get caught lying, you can do prison time.
I can also roleplay the tower in a chess game and shout "is that a peasant at the horizon I see? I will smash it I will! Oh damn I broke one of my merlons!". -- maji
Small claims is peculiar to the US, so I assumed we were talking about the US. My apologies for not being clear on this.
And if we are talking about the US, then yes. Absolutely. The standard of proof in civil courts, regardless of jurisdiction, regardless of the level or degre of formality is always the same:
"Preponderance of the evidence". That is, if the jury believes that it's 50.001% likely that you're telling the truth, you should win. If it's 49.999%, you should lose.
Technically, I believe it's possible for a state to establish a higher standard of proof for civil cases without violating due process. However, I'm pretty sure that all 50 US states and the federal system use preponderance of the evidence as the standard in civil cases.
There are exceptions, but only with regard to specific portions of the case. So, while a libel case always uses preponderance as the standard, if you're trying to prove libel per se (that's the one I referenced earlier where you can prove they knew it was false and did it intentionally to harm you), then as to the knowledge and malice portions of the case there is a higher standard of proof required. It's called "actual malice", and it's definition is too technical to get into here -- suffice to say it's higher than "preponderance" but slightly lower than "beyond reasonable doubt". However, the US Supreme Court has mandated that states may not use a standard lower than actual malice for libel per se cases. So yeah. I don't even think a small claims court is equipped to deal with libel per se, but if they were it would unconstitutional for that court to have a lower standard.
SO, yeah. The upshot of all this is that bacon is delicious.
I can also roleplay the tower in a chess game and shout "is that a peasant at the horizon I see? I will smash it I will! Oh damn I broke one of my merlons!". -- maji
there is no legal or civil action one can take against a mmo company for being banned...And here is why....When you instal the game there is this thing called and end user legal aggrement...I will simplify this. Its a like a pre-nup that says the following. This is our game not yours, We make the rules as we see fit, You use this software and service at our discretion not yours. If you violate our terms of service we can take what ever action we see fit. Terms of service subject to chage as we see fit and we are not required to notify you of any changes...
Now since this is built into the games installer as well as every time there is a patch you are forced to read this, if any actually do you can not claim you had no idea and any attorney you take a claim to will look at you and say did you see a eula when you installed the game.....The fact you didnt read it does not pardon you from the effects of it.
Interesting side not to this...When diablo 3 and the cash shop auction house comes out there will be some interesting aspects to your standard eula as well as tos that may actually give some base protections to the player base as money transactions and handling are a rather regulated thing and would be subject to civil and criminal charges.
If I remember right, Anarchy Online used to do public executions or something.
That would be an awesome in game event. Stone the exploiters and receive unique prizes. Everyone gets to pick up their rocks after the event with the blood of the hacker still on it. The description could read "Stone of blah blah blah, Thank you for helping us uphold the integrity of our game!"
A little off track of thread but still pretty funny!
"People are stupid; given proper motivation, almost anyone will believe almost anything. Because people are stupid, they will believe a lie because they want to believe it's true, or because they are afraid it might be true. People's heads are full of knowledge, facts, and beliefs, and most of it is false, yet they think it all true. People are stupid; they can only rarely tell the difference between a lie and the truth, and yet they are confident they can, and so are all the easier to fool."
The deal is made when you buy the product, usually in a shop, the agreement should be presented, in printed form, before the sale is made. If not, the enitre Eula thing is void, legally meaningless.
But getting your right in reality is another matter, and for a product with a sale-value of €60 it seems utterly pointless to pursue it.
You're actually wrong here. Courts have allowed EULA to be binding, even if it's after the sale of the good as long as it's before you use the product for online goods.
It used to be how you stated, but the laws and courts have changed with more and more software and online products coming to the market. So the EULA is not void or meaningless.
In EU countries you can allways take legal action. Law is above contracts, and it's possible to challenge the validity, compliance with law, interpretation or balance of the contract. Even if there's a clause where a person would agree about alternative method to settle disputes or waive his rights, the contract can still be brought to court by arguing about that clause.
You'have to hand me something about that within dutch jurisdiction then, I haven't seen anyhting to support your claim. I am now in doubt though if it was sufficient to point potential buyers to online copies of the Eula, before the sale. There's also been a case about some customer demanding a refund on a pre-installed piece of software with license/eula he didn't agree to. In practice it would probably mean the retailer would have to refund.
Anyway, I am curious who actually reads them before buying and then still buys a game, reading eula's tends to depress me to the point that I completely loose my interest - in the game.
Edit: changed point about loosing my interest in the game
No clue on what laws the european countries have on these issues and how it works across juristictions.
US court rulings on this issue pretty much boil down to the fact that the company has to offer the customer a refund if he/she declines to agree to the EULA/ToS after installing the game. Pretty much all of them will have a statement to that effect somewhere in there.
In general EULA/ToS will be held binding if they deal with issues to do with using the software and disallowed on things outside it. For MMORPGs the ToS are not really that strict contracts with both sides allowed to terminate the contract with little notice. The issue of bans is about the breech of provisions and any real damages will be limited to any outstanding subscription amounts.
If you agree to a EULA without reading it, you only have yourself to blame if it ends up biting you in the rear. By their very nature game EULAs are not really serious contracts but they are still contracts so don't be suprised to find that you can legally sing away certain rights in them.
I meant loosing interest in the game while reading the Eula. Perhaps if people would read ula's and then not buy, they'd start writing them a bit more user-friendly and without the complete lack of respect for their customer that they tend to show.
A refund when you do not agree with the eula sounds fair enough, though I imagine it may be hard to really do when you're about to install ....
But if you say
"In general EULA/ToS will be held binding if they deal with issues to do with using the software and disallowed on things outside it."
with regard to ToR's eula would that mean that sections 2, 5 and the stuff regarding privacy and the sharing of information fall withing "things outside it"?
Edit: I based myself on the Dutch language version on the same site, but with later review of the us-english version I find that the dutch version differs frot he original because it speaks of applications, plural, non capitalized, implying 'applications in general'. Sorry.
Well as contracts EULA/TOS are written in legalese so naturally are hard to read for lay people. I have taken a contract course in university so I generally do not have those issues.
The main issue with the refunds is that you usually have to deal direct with the publisher since the retail store you bought the game in will not take it back if opened. So while it is there and will be honored, it might not be exactly easy to do.
Issues of 'privacy and sharing of information' are very dependant on which country you are in. European countries tend to have stricter laws about this which would invalidate a EULA/TOS provision that says otherwise. This is why the US version would be different than that for other countries. Things get even messier when you talk about conflicting juristictions like someone from Holland playing the US version on US servers.
Judges get leeway when interpreting contracts and for things like EULA/TOS anything 'non-standard' might be thrown out in court. So while a basic 'you cheat in our game, you will get banned' will stand, things dealing with sharing of information or additional fees will be questioned if a lawsuit is filed.