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Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:09:00 -
[1]
A federal court judge here in the US against most of these 'clickthru' EULAs are pretty much invalid.
Oh, and arbitration? NOT GUNNA HAPPEN.
Head on over to slashdot :)
CCP - take note when you wield the ban stick. Might look at your EULA and fix up what just became unenforceable :)
Figured this was important for us 'online gamers that play in virtual worlds' :) TSBS - Eve's Premier podding service!
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The Pointless
Gallente Plastic Toys
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Posted - 2007.06.08 22:10:00 -
[2]
Edited by: The Pointless on 08/06/2007 22:11:32 OUCH, we KNOW ALREADY!
And on a further note, it's one measly little state, not the whole nation. And CCP and EVE are in Iceland and England respectively, not America, which I beleive Second Life is, if this is the "ZZZZzzzz" story you're on about...
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"Breaking News! The Pointless hates GIFs!" |
Fester Addams
Minmatar
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Posted - 2007.06.08 22:12:00 -
[3]
Well depending on where you live the EULA has been a toothless doccument for a very long time anyways.
The only part of the EULA you really have to pay attention to is the part that CCP reserves the right to terminate the buisness with ANY subscriber for any reason, they dont even have to tell you why.
So in short, not breaking the EULA is not mandatory... but if you wish to keep playing its a good idea to do it of your own free will.
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Destiny Calling
Amarr Veto Corp
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Posted - 2007.06.08 22:13:00 -
[4]
I don't know much about EULA, Laws etc but as this is CCP's game do they not have the right to ban whoever they want if they decide so, the same sort of way a publican can refuse entry to anyone he doesnt like the look of in his pub?
These are questions, not facts, fill me in here.
thats right I need a new sig |
Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:14:00 -
[5]
Originally by: The Pointless Edited by: The Pointless on 08/06/2007 22:11:32 OUCH, we KNOW ALREADY!
And on a further note, it's one measly little state, not the whole nation. And CCP and EVE are in Iceland and England respectively, not America, which I beleive Second Life is, if this is the "ZZZZzzzz" story you're on about...
FEDERAL court numbskull. FEDERAL.
TSBS - Eve's Premier podding service!
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The Pointless
Gallente Plastic Toys
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Posted - 2007.06.08 22:15:00 -
[6]
Edited by: The Pointless on 08/06/2007 22:15:36 Edited by: The Pointless on 08/06/2007 22:14:24
Originally by: Loyal Servant
Originally by: The Pointless Edited by: The Pointless on 08/06/2007 22:11:32 OUCH, we KNOW ALREADY!
And on a further note, it's one measly little state, not the whole nation. And CCP and EVE are in Iceland and England respectively, not America, which I beleive Second Life is, if this is the "ZZZZzzzz" story you're on about...
FEDERAL court numbskull. FEDERAL.
Whoop-de-doo... It's in the US. Not Iceland nor the UK. And the only numbskull is the idiot that thinks everyone outside the US should know or care what a Federal Court is.
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"Breaking News! The Pointless hates GIFs!" |
Patch86
Di-Tron Heavy Industries Sparta Alliance
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Posted - 2007.06.08 22:16:00 -
[7]
Been discussed to death.
As has already been pointed out: the only thing this rules against is an unfair arbitration clause, that is "one sided".
CCP have no such problem- the extent of their arbitration clause is "EVE is under Icelandic law, and all disputes can be taken before the court in Reykjavfk for final mediation". That is a legally sound, tried and tested clause if ever there was.
LEGAL NOTE: Just because there was a court case about an unfair contract (well tried contract law precedent) that includes the words "EULA" or "ToS", does not mean all EULAs are instantly invalid! For Christ's sake! --------
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ArcticFox
Dirty Deeds Corp. Axiom Empire
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Posted - 2007.06.08 22:17:00 -
[8]
How would this apply to the ban stick exactly? Banning is not a matter of legality, CCP can do whatever the crap they want with their servers and software.
Second Life is something of a different case from Eve. Everything is done in real currency in Second Life, so even from the company's point of view you really do "own" everything you have in there.
Even if all of this weren't relevenat, Eve is based in Iceland, which is categorically not the US. -------------------------- There is only one +6 sword of WTFPWN in Eve, and only the lag is allowed to equip it. |
Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:17:00 -
[9]
Originally by: Destiny Calling I don't know much about EULA, Laws etc but as this is CCP's game do they not have the right to ban whoever they want if they decide so, the same sort of way a publican can refuse entry to anyone he doesnt like the look of in his pub?
These are questions, not facts, fill me in here.
The judge basically said in his decision that a company cannot commit you to a contract that you cannot negotiate.
The second issue is this 'we can do whatever we want and you can do nothing - because you waive your rights when you agree' is also pretty much nonsense.
I think everyone knew that EULAs would never really hold in a court, and that appears to be the case - just one fool put his money where his mouth is and took them to task on it.
TSBS - Eve's Premier podding service!
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AegriSomnia
Caldari Battlestars GoonSwarm
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Posted - 2007.06.08 22:20:00 -
[10]
I object to the use of your term "judge" and I cite the following cases as evidence
"There are no Judicial courts in America and there has not been since 1789. Judges do not enforce Statutes and Codes. Executive Administrators enforce Statutes and Codes." (FRC v. GE 281 US 464, Keller v. PE 261 US 428, 1 Stat. 138-178)
"There have not been any Judges in America since 1789. There have just been Administrators." (FRC v. GE 281 US 464, Keller v. PE 261 US 428 1Stat. 138-178)
Originally by: grayson 34 Thank you for yall's advice, and a special thanks to AegriSomnia for reminding me that there are still ***holes in the world.
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Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:20:00 -
[11]
You all seem to forget that CCP does business here in the US. They have a US presence and exist as a company as well..
(So says my lawyer friend)
They cannot decide that you have to chase them to Iceland because they want you to.
Your country of origin? no matter they have US assets. See Spamhaus vs. e360 Insight LLC
Spamhaus thought - HEY! were in the UK they can't touch us.
They were REALLY VERY WRONG, now huh?
TSBS - Eve's Premier podding service!
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Derovius Vaden
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Posted - 2007.06.08 22:21:00 -
[12]
The problem is, if you want to sue CCP for any violation of the EULA, you go to Iceland where the EULA is still considered a binding document. So, in the end CCP picked a great nation to put its main office in. Smack-dab between North America and Europe, they speak a language very few people in the world would speak outside Iceland AND they get 24 hour sunlight some days.
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Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:24:00 -
[13]
Originally by: Patch86
CCP have no such problem- the extent of their arbitration clause is "EVE is under Icelandic law, and all disputes can be taken before the court in Reykjavfk for final mediation". That is a legally sound, tried and tested clause if ever there was.
LEGAL NOTE: Just because there was a court case about an unfair contract (well tried contract law precedent) that includes the words "EULA" or "ToS", does not mean all EULAs are instantly invalid! For Christ's sake!
Ok - your right not 'invalidated' but VERY WEAK.
I could challenge that the arbitration clause is unfair since I would have to spend substantial sums and be at an unfair advantage.
This is what this guy argued and won over. He would have to get a lawyer, fly to California to arbitrate this - at substantial cost and disadvantage.
TSBS - Eve's Premier podding service!
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Patch86
Di-Tron Heavy Industries Sparta Alliance
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Posted - 2007.06.08 22:27:00 -
[14]
Originally by: Loyal Servant You all seem to forget that CCP does business here in the US. They have a US presence and exist as a company as well..
(So says my lawyer friend)
They cannot decide that you have to chase them to Iceland because they want you to.
Your country of origin? no matter they have US assets. See Spamhaus vs. e360 Insight LLC
Spamhaus thought - HEY! were in the UK they can't touch us.
They were REALLY VERY WRONG, now huh?
All contracts (of ANY sort, in any walk of life) can have an arbitration clause. 99% of arbitration clauses say something to the tune of "in the event the parties involved in the contract disagree over the terms, we name [whatever] as the arbiter, and will stick by their decision". A court in a western country is a perfectly legally acceptable arbiter. Even for international customers.
Think about it. I'm in the UK, and I buy, say, a piece of electrical equipment imported from the US. I am deeply dissatisfied. Where do I sue them? Can I sue them in my local county court? Can I drag the executives all the way from California to the county court in Wiltshire? No! The sales contract will most likely name their local legal authority as arbiter, and I'd have to go to them. And that is perfectly legally acceptable. --------
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Tkar vonBiggendorf
Gallente MAG black strategic colition of nations Hell Hounds
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Posted - 2007.06.08 22:27:00 -
[15]
You might be able to sue CCP in a US court, and you might be able to win. You'll have a hard time enforcing the verdict, though. Iceland.
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Jouno
0utbreak
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Posted - 2007.06.08 22:28:00 -
[16]
bla bla bla americans resorting to legal action for a game OH NOES It's ccps game and i hope they ban anyone for any reason they see fit
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Thoric Frosthammer
Fallen Angels Inc INVICTUS.
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Posted - 2007.06.08 22:30:00 -
[17]
Edited by: Thoric Frosthammer on 08/06/2007 22:31:39
Originally by: Loyal Servant
Originally by: Destiny Calling I don't know much about EULA, Laws etc but as this is CCP's game do they not have the right to ban whoever they want if they decide so, the same sort of way a publican can refuse entry to anyone he doesnt like the look of in his pub?
These are questions, not facts, fill me in here.
The judge basically said in his decision that a company cannot commit you to a contract that you cannot negotiate.
The second issue is this 'we can do whatever we want and you can do nothing - because you waive your rights when you agree' is also pretty much nonsense.
I think everyone knew that EULAs would never really hold in a court, and that appears to be the case - just one fool put his money where his mouth is and took them to task on it.
Umm, no. You are completely misinterpreting this decision.
The court's decision relies on the concept of unconscionability, and specifically negates, in this case, only the arbitration clause.
Why? Well because people were being handed a take it or leave it form contract, that they may or may not understand or read in its entirety, which says they have to travel from wherever they are to California to attend private arbitration if there's a dispute.
Now, if that were a negotiated contract, it would stick. We do those all the time with negotiated commercial deals between residents of different states. However it has always been the case that form contracts entirely drafted by the side with more negotiating power will not always stand up to judicial scrutiny if their terms are unfair.
Unconscionability, as a legal concept, has a two prong test in Federal case law, and indeed in most states, particularly California, which the Second Life EULA cites as its controlling legal jurisdiction if I recall. The first prong is procedural unconscionability. That is, in the process of negotiation, who holds the negotiating power? Here, obviously, Linden Labs does. They draft it, they give it to you as a take it or leave it clickthrough. Procedural unconscionablity, on its own, is INSUFFICIENT generally speaking, to void a contract. There must also be an element of substantive unconscionability. Substantive unconscionability is "are the terms of the agreement manifestly unfair". Basically these two factors act as a sliding scale. The more procedural there is, the less substantive you need, and vice versa.
In a form contract of adhesion (fancy legal term for a take it or leave it form contract), the overall threshold is also typically lower for the contract to be voided. Form contracts handed to you on the backs of invoices, or in a clickthrough, are generall difficult to understand, rarely fully read, and basically intended to trick people into agreeing to things no rational person would, on full review. Thus courts have always been reluctant to enforce them when they call for something that a normal, rational person would not have believed might be in the contract. Which includes "Fly to California from New York to appear in front of a private judge you have to pay for".
Thus the specific finding here is really a basic one that has been around for a while. Basically contracts are knowing agreements between people. If you try to put one over on someone either through overwhelming negotiating power, or just hiding it in a clickthrough, we probably won't enforce it if its really heinous. In this case, the only new element is that they have applied this doctrine specifically to arbitration clauses. I applaud this decision, because honestly, these are really easy to abuse under the circumstances of this case.
This probably WOULDN'T apply to something like "we can ban you from our service for doing pretty much anything we don't like, or for no reason at all". That, under the totality of circumstances, wouldnt be unconscionable, unless you were talking about a life support service or something :P
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Kylar Renpurs
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Posted - 2007.06.08 22:31:00 -
[18]
Edited by: Kylar Renpurs on 08/06/2007 22:31:16
Quote: bla bla bla americans resorting to legal action for a game OH NOES It's ccps game and i hope they ban anyone for any reason they see fit
Heheh,, QFT.
One american judge versus Iceland. Yeah. Right
Oh, and I like folate too
A Judge in america also let Paris Hilton out of prison,,, judges in america must be absolutely oozing intelligence Improve Market Competition! |
Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:31:00 -
[19]
Originally by: Tkar vonBiggendorf You might be able to sue CCP in a US court, and you might be able to win. You'll have a hard time enforcing the verdict, though. Iceland.
They have US assets. They are not beyond reach as most people seem to 'think'
There is one 'good' thing going for them - they are not in the EU.
Personally, I hate the fact that the US has such a long arm.
TSBS - Eve's Premier podding service!
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The Pointless
Gallente Plastic Toys
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Posted - 2007.06.08 22:35:00 -
[20]
Originally by: Loyal Servant They have US assets.
Name them.
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"Breaking News! The Pointless hates GIFs!" |
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Kyrrdin
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Posted - 2007.06.08 22:35:00 -
[21]
Edited by: Kyrrdin on 08/06/2007 22:38:19
Originally by: Loyal Servant
The judge basically said in his decision that a company cannot commit you to a contract that you cannot negotiate.
The second issue is this 'we can do whatever we want and you can do nothing - because you waive your rights when you agree' is also pretty much nonsense.
I think everyone knew that EULAs would never really hold in a court, and that appears to be the case - just one fool put his money where his mouth is and took them to task on it.
A. Your first statement here makes the judge entirely wrong... which happens all the time, by the way. There are thousands upon thousands of contracts that are legally binding that are non-negotiable. For example, renting an apartment. Housing and Renting Regulations are very strict thanks to laws regarding Equal Housing. When you sign a rental contract is is most certainly legally binding... and also not negotiable.
B. A judge's decision is not written into law. It is not even a precedent yet. This decision means jack.
C. None of this has anything to do with International Law or its inforcement. CCP is not affected by this... AT ALL.
D. It's 'OWNED' not 'PWNED'. Your age is showing.
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Mari Onette
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Posted - 2007.06.08 22:36:00 -
[22]
I'm reading this article, and I don't think it applies to eve (too much).
The reason the judge ruled the way he did is because linden labs says that the virtual items you bought in second life are your property, and are worth real money. The entire idea of second life is that goods in second life are worth real money. Because the items are worth real money, you cannot be subject to an arbitration process that is unfair (which is what the suit alleges.)
In eve, you pay for access to the game. You are not paying real money for the items in the game, nor does CCP ever state that in game items are supposed to be worth real world money. This is MUCH different from second life. CCP will still be able to ban your account at any time for any reason.
This ruling is a good thing.
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Thoric Frosthammer
Fallen Angels Inc INVICTUS.
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Posted - 2007.06.08 22:38:00 -
[23]
Contracts are enforceable in most countries folks. And in many of them, if you agree to be bound by US law, you will be. So it's not a topic without consequences for you.
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Namingway
Important Yet Underrated Video Game Characters
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Posted - 2007.06.08 22:39:00 -
[24]
The discussion is moot, Federal judges do not have the authority to rule on things like this in the US. The fact they do so is a gross violation of the Constitution.
IT's a call for each state, just like everything else, and that judge saying you cannot be held to a contact you cannot alter means he just invalidated FAR more than MMO EULAs.
Originally by: CCP kieron If a member of the EVE community finds he or she cannot accept our current level of transparency, we bid you good luck in finding a company that meets your needs.
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Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:41:00 -
[25]
Originally by: Thoric Frosthammer
snipped - too long :(
I agree with you on a lot of things you say but the decision addresses the issue of "...has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the Service without notice..."
Judge basically said in his decision that this was complete and utter nonsense because the company had the sole discretion at deciding this and not a neutral party - and the customer had no recourse.
I think this would make a great debate and I would love to debate it. by all means ...lets go at it
I have a beer and an hour
TSBS - Eve's Premier podding service!
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Namingway
Important Yet Underrated Video Game Characters
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Posted - 2007.06.08 22:42:00 -
[26]
Originally by: The Pointless
Originally by: Loyal Servant They have US assets.
Name them.
White Wolf.
CCP would be wise to relocate them to Iceland.
Originally by: CCP kieron If a member of the EVE community finds he or she cannot accept our current level of transparency, we bid you good luck in finding a company that meets your needs.
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Loyal Servant
Caldari The Short Bus Squad The SUdden Death Squad
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Posted - 2007.06.08 22:44:00 -
[27]
Originally by: Mari Onette I'm reading this article, and I don't think it applies to eve (too much).
The reason the judge ruled the way he did is because linden labs says that the virtual items you bought in second life are your property, and are worth real money. The entire idea of second life is that goods in second life are worth real money. Because the items are worth real money, you cannot be subject to an arbitration process that is unfair (which is what the suit alleges.)
In eve, you pay for access to the game. You are not paying real money for the items in the game, nor does CCP ever state that in game items are supposed to be worth real world money. This is MUCH different from second life. CCP will still be able to ban your account at any time for any reason.
This ruling is a good thing.
The issue he is disputing is about his items ultimately. This part of his case was dealing with whether or not he could sue them. They hid behind their EULA - which the judge just ruled unenforceable on the grounds that the customer could not reasonably agree to it and had no grounds to negotiate it and there is no product that compares to it, so he could not simply go elsewhere.
I don't think there is a product that compares to Eve. Even the fanboys have to agree there.
Therefore, this actually does have some implications for EULAs in MMOs. It appears that it may have implications for other draconian EULAs like the Windows EULA.
TSBS - Eve's Premier podding service!
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Elenath
Gallente Aliastra
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Posted - 2007.06.08 22:46:00 -
[28]
Engage your brain when reading the article. The decision, which is not law yet, has everything to do with the ownership of possessions in the game in relation to the EULA. It has little to nothing to do with the EULA itself.
This has nothing to do with CCP or their EULA. It's not law, it can be overthrown, it's not International Law, etc.
Next pointless post, please.
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Kylar Renpurs
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Posted - 2007.06.08 22:51:00 -
[29]
Quote: ... on the grounds that the customer could not reasonably agree to it and had no grounds to negotiate it and there is no product that compares to it, so he could not simply go elsewhere...
So no customer can reasonably agree to it, but it's alright to accept the legality of them saying 'Things you buy with real-world money are your property'. If the EULA is rubbish, then so is the claim that the player lost any property, since it only states in the EULA that the in-game items are his property. Improve Market Competition! |
Thoric Frosthammer
Fallen Angels Inc INVICTUS.
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Posted - 2007.06.08 22:53:00 -
[30]
Originally by: Namingway The discussion is moot, Federal judges do not have the authority to rule on things like this in the US. The fact they do so is a gross violation of the Constitution.
IT's a call for each state, just like everything else, and that judge saying you cannot be held to a contact you cannot alter means he just invalidated FAR more than MMO EULAs.
Incorrect. The Federal court had jurisdiction both on diversity grounds and on federal question grounds, as it touched on regulation of interstate commerce. Read up on federal jurisdiction, or preferably get a law degree before making ignorant comments. As a lawyer, I'm licensed to make ignorant comments and I'll protect that franchise to the end.
Anyhow, the court wasn't directly concerned with the portion about being able to terminate your account for any reason or no reason at all as such. It was concerned about it IN CONJUNCTION WITH the arbitration clause. Because Linden Labs could modify, among other things, the arbitration clause at any time and change it, and because they could terminate your account then make you come to CALIFORNIA to arbitrate it, and change the terms any time they like, on their own discretion, it was unfair. By itself, the ability to terminate you without cause wouldn't have triggered this decision.
Also, and this is very important, this decision is based on one very unique element of Second Life that other MMO's lack, and so it may not be completely precedential as regards other MMOs. The judge specifically looked at the fact that Second Life is the only MMO that allows one to purchase and own virtual real estate and goods, and as such, there is no alternative marketplace, which increases the procedural unconscionability of the contract, as it becomes truly take it or leave it.
That's an interesting point in that it may weigh into company's decisions to go into the market to sell goods in their games for real world cash.
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