Additional US case law that might support legal action against Ubisoft over shutting down The Crew

[zephyr127]

  In Ross's video "Dead Game News: Early plans for stopping companies from destroying games" he mentions the case 'ProCd, Incorporated v. Zeidenberg', I won't go too deep into this case but it is about someone who bought a CD phone-book and resold all the data on that CD for a cheaper price. Where this case touches on contract law is that the CD used a 'shrinkwrap license' that the buyer agreed to. Shrinkwrap license is a common term for EULAs, although most  EULAs would be referred to as a clickwrap license as you click a button rather than open the shrinkwrap around a CD case.

 

  The important thing to note about this case is that neither party had issue with the terms of the license and thus the license was upheld. The case states the following "Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable)". The word i would like to focus on here is 'unconscionable'. There are generally two ways a contract can be unconscionable, substantively or procedurally. Substantive unconscionability is when a contract is unfair or one-sided. Procedural unconscionability is for a 'contract of adhesion' where one party holds more bargaining power and offers the contract on a take-it-or-leave-it basis, especially when there is no reasonable alternative to the product being offered with the contract. Usually a contract or license must meet both types of unconscionability to be thrown out in US courts

 

  Now i would like to bring up a few cases that touch more on the unconscionability of clickwrap licenses the first being 'Comb v PayPal, Inc.'. This case sets a precedent that clickwrap licenses are adhesion contracts and thus procedurally unconscionable, mentioning that the user could only accept the license or reject it. Another case I would like to mention is 'Bragg v. Linden Research, Inc.' this case much like the first shows the procedural unconscionability of EULAs and came close to proving that any EULA with an 'arbitration clause' would be substantively unconscionable as well. Unfortunately this case was settled out of court before it could set any legal precedent on arbitration clauses in EULAs (The Crew has one such clause).

 

  I think it is clear that Ubisoft's EULA is a contract of adhesion and therefore is procedurally unconscionable, however proving it to be substantively unconscionable may be more difficult but not impossible. Cases like this have been successful in the past like with Comb v PayPal (the license was found to be substantively unconscionable as well) and the second case I mentioned is very applicable as it was about someones account getting banned from the game Second Life (it was un-banned as part of the out of court settlement).

 

  All of this is to say that the legality of video game EULAs such as the one with Ubisoft's The Crew is still very much untested in the courts, and the case Ross brought up in his video 'ProCd, Incorporated v. Zeidenberg' does not necessarily apply as it left open the possibility for EULAs to be thrown out if they are found to be unconscionable, as happened with 'Comb v PayPal, Inc.'.

 

  I feel I should mention that I am not a lawyer and may have gotten some of this information wrong. However I stand by my statement that such EULAs have not yet been fully tested in a court of law, and invite you to look at the cases mentioned to come to your own conclusions.

[zephyr127]

I have done some more digging and found even more hopeful information. The 'Comb v PayPal, Inc.' case set the precedent of arbitration clauses to be unconscionable. this would really help with anyone wanting to sue Ubisoft in the US as you could avoid arbitration entirely and go straight to the courts.

 

Another thing to note, both of these cases were held in California (which seems to be a good state for consumer protection laws). Anyone living in California could file for the case to be heard there thanks to a precedent set by Bragg v. Linden Research, wherein it was determined that California had jurisdiction due to ad's for second life airing there. So if Ubisoft ran ads for The Crew in California you could force the case to be in a Californian court.

 

A few things to note, it seems there is still no real legal precedent on whether games are considered a good or a service. From what i can tell it depends on what state you are in. Although I am not familiar enough with the law to know what difference that would make, if the EULA is thrown out it is not really knowable if that would force Ubisoft to return access to the game. Again nothing like this has been tested in the courts. 'ProCd, Incorporated v. Zeidenberg' is not quite the same as it was a fair license, the PayPal case is different as it was about money being taken from bank accounts without notice. The closest case I found was the Second Life case, but as it was settled out of court it never gave us a definitive answer.

 

The Second Life case also dealt more with owning virtual goods that were paid for (virtual land in this case). If someone spent money on a car for The Crew they could use this case to argue that they should still be allowed to access that car (and thus access the game).

Edited April 12 by zephyr127 (see edit history)