EULAs aren’t all bad

January 7th, 2008 Posted in Information Technology, Intellectual Property, Virtual Worlds

End-User License Agreements aren’t all bad. They are necessary for interration - that incorporation-like thing for virtual worlds that Castronova talks about - in order to set out and delimit the game space. It is when they violate Castronova’s closed/open virtual world dichotomy that they become problematic. When EULAs are used to transgress the VR/RL* membrane in order to extend IP beyond its legislative bounds that they become abusive.

(Incidentally, I’ll talk about how they can be used to mediate that transgression in other contexts - like the user/avatar boundary - in another post.)

Jack Balkin states that platform owners / game developers control the artificial world through either code, contract, or a combination of the two. A simple example of this is controlling the use of offensive or profane language in family-friendly artificial environments. Many if not most of these spaces employ some sort of language filter.

The effectiveness of language filters at catching the undesired words or phrases, without too many false positives, varies considerably and is never perfect. Give a pre-teen a text box and he or she will try to find a way to say the things Mom and Dad don’t permit at the dinner table. So what is more contextually flexible but less directly enforceable than code?

Law.

*Virtual Reality / Real Life

But where code is proactive, law is retroactive. Code intercepts and prevents “damage”; law interprets the “damage” and attempts restitution and/or penalty. So we build behaviour rules into both the code and the law. We build it into code with filters, and into law with contracts - specifically the End-User License Agreement, and the Terms of Service/Use within it.

But what about the reverse?

Can code be used to catch the failings of law?

In examples relating to in-world behaviour, maybe it can. Since it can prevent “damage”, it is a powerful tool. But we must remember that not all claims of damage are justified. What may be perceived as damage to one party may in fact be well within the rights of the other. Here, we are leaving the in-world interactions among avatars and between avatars and their environment. We are talking about user behaviours that may be considered undesirable by the platform owner or developer, but may be entirely permissibly by law.

Since the EULA pertains to users, it acknowledges the permeability of the membrane between VR and RL. It recognizes the inseparability of the user from the avatar.

Specifically, the EULA insists that the user is responsible for the avatar’s behaviour.

However, it also frequently uses the reasons which permit such transgression and assignment of liability to justify further binds on the user.

Law gives us intellectual property. It gives protection for certain types of IP in many situations. It gives remedy for infringement through injunctions and economic restitution. But to many IP holders, this is not enough once the copy or crack - the result of the infringement - is out there.

One has to ask, why is it not enough? Surely economic restitution can repair the economic damage! So what is it that corporate IP holders are trying to protect that can’t be fixed with money and court orders?

Use.

IP holders would often like to proactively prevent certain uses that would be allowed by exceptions enshrined within law. Exceptions like the Fair Use exception in the US Copyright Act, 17 USC 1201(c), the Reverse Engineering exception by a holder of a lawful copy in 17 USC 1201(f), the Fair Dealing exceptions in the Canadian Copyright Act, RSC 1985 C-42 s.29, and the Private Copying exemption in C-42 s.80.

So they use code to create TPMs, effectively removing all but the 1201(f) exemption, and they use EULAs to force the user to opt out of 1201(f), preventing any access to all of the other exceptions allowed.

There’s a reason why we have Fair Use / Fair Dealing exceptions, and it’s pretty sneaky to use the EULA to get people to waive these legislated rights.