What EULA Do.

[LiquidAsh]

In getting ready to self publish for the first time, I'm curious whether anyone has advice regarding EULAs? Any favorites, or important sections? Does anyone keep and use different ones for say trial vs. full versions of their games?

Thanks, LiquidAsh.

p.s. Figures that the dexterity board would go down just before my first attempt to self publish .

[world_creator]

i found this online a few days ago and it appears to provide a pretty concise template: http://www.utsystem.edu/ogc/intellec...ct/softend.htm

[kerchen]

And of course there's always The Amazing EULA Generator .

[GameStudioD]

Thanks for the link. It truly is amazing. I read the generated EULA and I will change some things, but this saves me some time!

[soniCron]

I'm reviving this thread because I strongly doubt the legitimacy of the previous two links. (The Amazing EULA Generator and The University of Texas EULA Template)

The Amazing EULA Generator is a script kiddie's project and merely copies some else's EULA and puts in your own info. He even says, "Recently, it occurred to me that most companies probably just copy off of each other's agreements, and that sounds like a pretty labor-intensive process." Which is just beaming with ignorance.

The U of T EULA is for a university, obviously. Universities tend to have very interesting ideas when it comes to licensing IP. Sometimes they go all out and give everything away and just protect their butts, other times it can be much more strict. Either way, I'm uncomfortable using a university's EULA in my own work.

It's obvious that it's not the smartest thing to do, copy and paste someone else's EULA. Unfortunately, I haven't the wherewithall to write my own. I wouldn't even know where to begin (other than essentially copying verbatim others' EULAs). I haven't got a development team (I work alone), so I don't worry about NDA's and IP ownership rights. Other than filling out the usual DBA forms, I have no need for legal advice, so paying for it seems to me, an unreasonable cost. And herein lies my real question:

What did you guys do about your EULAs? Did you draft your own? Hire a lawyer? Copy someone else's? What works best for you? What do you suggest for a developer in my situation?

[Lerc]

I was thinking about EULAs today. Here's another thing. Many things are provided as default by the law. EULAs define things more specificly if you want particular things here or there.

But, and this is the biggie for me, How many people here feel like they'd have the resources to challange a EULA violation in court. For many of us, court costs of a potential case would be higher than the revinue we'd expect from a title.

Not to mention the legal status of a contract that most people don't read and you can't ever prove who clicked 'I agree'.

I'm just wondering if they are, in fact, pointless to us little guys.

[JiriNovotny]

Funky Farm got nice EULA

[cliffski]

I dont bother with them. when you buy a pencil in a store there isn't a EULA you sign to say you wont stab someone with it. I think they are just devices to keep lawyers in work. Unless there is a specific thing about your game that means you need to get something legal clarified, why bother? Have you EVER read one? on a game?

[lamsbro]

An EULA is only as good as your ability to enforce it through lawsuits and favorable court rulings. Copying the EULA from a Microsoft game and editing it to fit your needs is in fact not a bad idea. It is very common for similar businesses to model their contracts based on those of their competitors, if they can get their hands on them. Let Microsoft's team of lawyers do the work for you when it comes to writing an EULA, unless you have some very game specific concerns to deal with. If that is the case, just think of the EULA as an agreement between you and the customer to observe certain rules. Make it as clear, detailed, and explicit as you can.

[Reactor]

Also, read over it, and understand what you're asking people to agree to.

I read about twenty EULA agreements and pieced ours together carefully. Then, I rewrote a lot of it myself, so what we wanted people to agree to was fair and as solid as possible. I was quite disgusted with the EULA agreements in other games... many of them were taken from full versions of others, and slapped hap-hazardly on a demo. A lot of them had names in them from other companies, and many asked people to agree to completely rediculious terms. In fact, I am yet to see a EULA agreement as error-free as ours. Every EULA I looked at from indie developers had a problem in it somewhere.

I take ELUAs as seriously as I do publisher contracts. We don't have the cash to fight some things in court, but if there's one legal line of defence I do want for our games, EULAs are it. Cliffski, I always have a brief look over what it is I'm agreeing to. If you don't have some kind of legal defence for your games, people will easily be able to sue you, or decompile your games without a second thought. It's worth putting in your installer.

[cliffski]

but I went to the cinema last night and didnt sign a EULA at any point. yet strangely I'm not in a position to steal the movie. If I read EULAs of every game demo I played, I'd spend more time reading legal waffle than playing games. Sod that! 99% of people dont read past the first word.

[Robert Cummings]

I believe there is a notice telling you how copying the movie will have XYZ consequences, so YES the movie does have an 'eula'.

They may or may not act on it, depending on the management. For example your camcorder may be confiscated and you may liable for other fines.

The point of an EULA is that you are setting down acceptible terms.

[Greg Squire]

I believe there is a notice telling you how copying the movie will have XYZ consequences, so YES the movie does have an 'eula'.

They may or may not act on it, depending on the management. For example your camcorder may be confiscated and you may liable for other fines.

The point of an EULA is that you are setting down acceptible terms.

Yep! and like most EULA's most people go right past them without even reading them.


On a serious note though, I'm also interested in knowing what the most important or essential things are to have in a EULA. I think this is an area where most indie developers are a "bit in the dark".

[Thorbrian]

Reactor kind of mentioned this a bit, but the thing I haven't seen really talked about in this thread yet is the limitation of liability (and also disclaimer of warranty) clauses in EULA's - but they've always seemed like the most important part of the whole thing to me.

The idea behind those clauses is basically that in order to use the product, people have to agree to not sue you for any damages related to the use of it. Lerc mentioned about not having the resources to take a EULA violation case to court - well do you have the resources to defend yourself if someone else brings a case against you? If the user had to click that they accept that they can't sue you in order to use the product, that could deter and/or resolve lawsuits claiming damages from the use of the product.

I think the actual benefit of License agreements is NOT to make the user do what you want (like we own your car if you run this game), but instead to protect you from action that would ruin your business or life (like you can't blame us if your kid runs over his best friend with your car after playing this racing game)

I don't see why the standard boilerplate wouldn't be good for that purpose

LIMITATION OF POST LIABILITY: by reading this post you have agreed not to sue me for bad legal advice

[mahlzeit]

Just because your EULA contains a disclaimer of warranty or limitation of liability doesn't mean that it's actually valid everywhere. Likewise for anything else you put into your license agreement. The laws of the customer's country always take precedence and customers can't waive certain rights no matter how often you make them click on your I Agree button.

However, I don't think it's a big deal if you don't include a EULA. Most software packages' EULAs are similar. Everybody is already supposed to know the rules for buying software or trying out demos. Even if your product doesn't have an explicit EULA, the customer would be wrong to assume they can steal or reverse engineer or do whatever they want to your product. They have no reason to believe your software does come with warranty, simply because no software comes with warranty, unless you pay extra for it. So I'm with Cliffski on this one. But hey, I am not a lawyer (woot!).

[soniCron]

There's something I'm still confused about. I am hearing a lot of talk like "Nobody reads it, so I'm not using one." But I thought one of the most important aspects of an EULA was the "licensing" portion! The part that dictates the terms in which the user "owns" and has the right to use your software! By eliminating the EULA, you are literally giving the user the right to use someone else's serial number. After all, they only bought the number and not the right to use the full version of the software. Since numbers can't be owned by any single entity, the user has full right to distribute their serial number without consequence. In fact, I'm not even sure it's legal to sell a user "just a number"! Thoughts?

[Reactor]

SoniCron, if there isn't a EULA, the user can legally do whatever they want with your software.... crack it, decompile it... whatever, unless there's some other form of agreement they've entered into with you (verbal, etc).

Everybody is already supposed to know the rules for buying software or trying out demos.

Everybody huh mahlzeit? Wow, I can't wait to see you try that defence in court.

EULA agreements can seem like a waste of time, but I've read they are widely recognised as a standardized form of agreement when it comes to software. There's also the discussion that no one reads them, and they'll be thrown out of court as legal defence. There's always that small chance, but as I said, they are generally recognised by most as a legally binding agreement... so even if you've only got a 20% extra chance of using it, it's worth having in your software.

If you can' be bothered, well... suffer the concequences, as they say.

[lamsbro]

The EULA has nothing to do with whether an activity is legal or not. What is illegal is defined almost exclusively by statutes (written laws created by legislatures). Let me give you all a basic overview of the U.S. legal system, based on my Business Law textbook. There are basicaly 3 branches of law: criminal law, tort law, and contract law. Any action can lead to consequences in 1 or more of the branches of law. Criminal law consists of a bunch of laws passed by legislatures. For example, murder is a breach of criminal law. Criminal law is enforced by law enforcement, who have the duty of hunting down violators and bringing them to the court of justice, where if found guilty, they can face punishments including imprisonment, fines, or even death.

Tort law basically deals with wrongs committed by one party on another. Examples of violations covered by tort law include defamation, fraud, and assault. When tort law is violated, the victim may choose to file a lawsuit against the committer of the act, however the most the victim will receive is money. The committer of the infringement can not be sentenced to jail under tort law. Before you run out the door and commit assault, it is important to realize that some actions like fraud are violations of both criminal and tort law. In otherwords, the perpetrator of a fraud will go to jail under criminal law, and in addition to that can be sued by the victim for the damages they caused. OJ Simpson is a great example, he was found not guilty of murder (criminal law) but was found liable for the wrongful death of Nicole Brown Simpson and that other guy (tort law). The end result: he paid a lot of money to the family but avoided jail.

Finally, there is contract law. The EULA is an example of a contract. There are 2 requirements for a contract to be created: (1) the parties involved must understand each other, (2) the parties intend to enter into an agreement. Exculpatory clauses are statements in the contract that attempt to release one party from any liability should something happen. For example, the EULA might contain an exculpatory clause that says "we're not liable if our game causes you health problems." Exculpatory clauses are usually unenforceable when they attempt to exclude intentional torts or gross negligence. Exculpatory clauses are also unenforceable when the parties have greatly unequal bargaining power, or if the exculpatory clause is not clearily written and visible. Another important point on contracts, any contract made with a person under the age of 18 is voidable by the minor. In other words, you have to live up to your end of the agreement unless the minor chooses to void the contract alltogether. In other words, EULA's are worse than useless if your client is under 18. The minor can choose to enforce the contract when it is favorable to them, but can at any time and without any notice void the contract if he or she decides they don't like it anymore.

What happens if a contract is breached (one of the parties does not meet its obligations as specified by the contract)? If there is breach of contract, you can hire a lawyer and sue to recover damages to compensate you for the breach of contract. For example, if the EULA says that the software can not be copied and given to others, and you discover that a client made a free copy for his friend, you can sue the client and will probably recover the value of the copy that his friend would have otherwise had to pay for. For a $20 game, this is obviously not worth the trouble. Fortunately criminal and tort laws still apply, and this client might be found guilty of theft, for example.

Hopefully this settles things once and for all. Unfortunately for many of you, the above legal system is for the US only, and other countries have much different rules. EULA's are nice for certain things, but don't be too obsessed with them. You probably don't have the lawyer power to enforce them should the client be in breach, and you probably don't have to worry too much about the kinds of liabilities that you could release yourself from anyways.
Another note, I'm not a lawyer or even studying to be a lawyer, but I took a Business Law class in university, and the above is taken from my Business Law textbook which I have found to be extremely handy, titled "Legal Environment", by Beatty and Samuelson.

[Adrian Lopez]

What bothers me about EULAs is the way they're presented as agreements when in fact they constitute a unilateral imposition of terms. To the best of my knowledge, the legal status of such contracts -- adhesion contracts -- is somewhat murky. Considering that one of the parties to an EULA has zero bargaining power (beyond choosing not to buy the product), such contracts are -- or, at least, used to be -- harder to enforce.

The way I see it there are two ways to approach an EULA. If I say you're allowed to make copies of my game, but only for your friends, I see no problem with that. If I say you're allowed to play the game yourself but may not allow your friends to play at all, there is something very wrong with that.

[Aldacron]

There are many opinions on EULAs, but the only ones that matter are those of the legal system. In the US, there has to date been no definitive case that sets the validity of EULAs in stone. And it won't happen until a EULA case makes it to the Supreme Court. Lower courts in different circuits have declared conflicting rulings.

As an example, there have been several cases involving 'first sale doctrine' (allows the purchaser to transfer (i.e. sell, rent, or give away) a particular, legally acquired copy of protected work without permission once it has been obtained) and EULAs which expressely prohibit the resale of software. In one such case, Softman v. Adobe (2001), a company purchased an Adobe software bundle then resold the bundled components individually. The California District Court "ruled that Softman could resell the bundled software, no matter what the EULA stipulates, because Softman had never assented to the EULA. Specifically, the ruling decreed that software purchases be treated as sales transactions, rather than explicit license agreements." However, in the case of Davidson & Associates v. Internet Gateway Inc (2004), the US District Court for the Eastern District of Missouri ruled that 'the plaintiffs EULA, which prohibited resale, was binding on the defendants because 'The defendants .. expressly consented to the terms of the EULA and TOU by clicking "I Agree" and "Agree."'

The case to watch, though, is Blizzard v. BnetD(2004). For those who haven't heard of it, Blizzard sued some people who developed a Battle.net emulator. The case centered on violations of both the DMCA and Blizzard's EULA. One of the violated EULA terms was a prohibition of reverse-engineering. The court sided with Blizzard, ruling that the defendants consented to the terms of the EULA when they clicked the 'I Agree' button. This case is currently being appealed, and the Electronic Frontier Foundation is representing BNetD on the grounds that reverse engineering can not be prohibited by a EULA.

There are a couple of reasons why the Blizzard case is interesting. First, it's being appealed by the FFA. The FFA is generally not shy about going as far as they can, so I think this particular case has a chance to go to the Supreme Court. If the FFA win their appeal, you can be sure Blizzard will appeal. And so on. Second, no one is questioning the validity of the EULA. The lower court declared the EULA vaild, and the FFA is not challenging that. They are trying to invalidate a specific term of the EULA. Assuming this goes to the top, it could set a precedent that solidifies the validity of EULAs once and for all (through inference - if the court says a specific term is valid or not, then they must be working on the assumption that the EULA itself is valid), while opening the door to challenging specific EULA terms.

Anyway, it would be nice if we could ultimately have a standardized EULA to use industry wide. Maybe we will one day.

[Robert Cummings]

For me, I will be using EULAS to protect myself from being sued, to waive liability. Therefore if person X feels that my game has made them try drugs due to a large mushroom being present, then I can argue that the EULA clearly states that I am not liable for anything that arises as a result of installing or playing this game.

Because I'm a single developer, I can't afford even a small chance of being sued, therefore I take all this seriously.

Anyone who doesn't take it seriously should take a close look at if they even want to stay in this business at all.

[cliffski]

Anyone who doesn't take it seriously should take a close look at if they even want to stay in this business at all.

Well I have been writing games since 1981 have never bothered once with a EULA or a lawyer, and never had any problems ever. zip none nada.
Everyone seems to look forward to having a universal EULA, I look forward to a day when judges arent idiots and throw out any court case where someone has tried to steal intellectual property because he had not clicked the EULA.
The whole thing is a joke, what if I buy a french copy of Doom 3 and click agree on the EULA without understanding what it means? How can I disagree with the EULA if I can't read the damned thing before I have PAID for the game.
Try taking a game back to the store because you dont like the EULA terms...

The EULA is one screen of text and one mouse click more than everyone forces their customers to put up with before they try your game. I have no logo screen, no EULA, no nonsense, just a playable demo.

[george]

as stated before, you need a EULA to tell your customers what they can and can't do with the software. i.e. can they use it on more than 1 computer? can they make backup copies? can they use it at work and at home? and of course the other more obvious things like they cannot give it to their friends, etc.

i suppose you can get away with not having a EULA for games, but it is a must for applications.

just get a couple eulas from other software and then read through them and understand them, and then write your own (or copy and paste). it's really simple... you don't need any templates or generators.

[Adrian Lopez]

as stated before, you need a EULA to tell your customers what they can and can't do with the software. i.e. can they use it on more than 1 computer? can they make backup copies? can they use it at work and at home? and of course the other more obvious things like they cannot give it to their friends, etc.

You don't need an EULA to prohibit such things. Installing the software on more than one computer -- at work, at home, or at a friend's house -- is already prohibited by copyright law, although I doubt you'd be able to do much about such things, EULA or no EULA. As for the making of backup copies, that's something you should not be allowed to prohibit.

i suppose you can get away with not having a EULA for games, but it is a must for applications.

Not at all.

[soniCron]

Installing the software on more than one computer -- at work, at home, or at a friend's house -- is already prohibited by copyright law...

Not in the type of business we're in. We're giving them the software as a free download on the Internet. The whole point of shareware/demo is letting them try it before they buy it. So, no, installing the software on more than one computer at all, anywhere, is simply not prohibited by copyright law. In our case.

[george]

You don't need an EULA to prohibit such things. Installing the software on more than one computer -- at work, at home, or at a friend's house -- is already prohibited by copyright law, although I doubt you'd be able to do much about such things, EULA or no EULA.

That is not absolutely accurate... Of course there are laws against copyright theft... But there are EULAs where you can install the software on more than one computer (i.e. Family pack, etc.) -- and that's not illegal for the customer to do so if the EULA says they can.

If I had software that had no EULA or conditions, I would install it on all my computers at home and work. As long as I am not pirating it, it appears to be legal to do this -- so you guys better think twice before dithcing your EULAs

As for the making of backup copies, that's something you should not be allowed to prohibit.

Yea it shouldn't be prohibited, but often in many EULAs it is limited to 1 backup copy, which kind of makes sense because you don't want your customers to have 10 backup cds lying around, because it would be really easy for them to misplace or lose them, which means someone else can easily get a hold of your product and pirate it.

It's true that a EULA will most likely not make a difference in your products/businesses (especially if you are an indie), but it doesn't hurt to have a proper EULA. Also, if you are serious about your business, you should definitely do everything properly, like having a EULA for your products...

[cliffski]

it does hurt (slightly) because it drags out the install and play cycle for potential customers. It also implies subconciously that you reckon your customers are going to rip you off. It also implies very subconciously that you might be doing something dodgy and you need a record of them saying it was ok.
Im not saying all EULAs do this, but some of the more dodgy software does. WHen I install realplayer and get a PC spammed with dubious tartup programs and file association changes and shortcuts etc, I realise its probably buried in the 30 page EULA that I said it was ok. When I install something without a EULA, I get the immediate impression that the developer is being more reasonable.
Maybe thats me. But I still dont see how having pages of legalese before you let people try your product is doing this 'properly'.

[James C. Smith]

If you don’t have a EULA then what are they buying?

You don't need an EULA to prohibit such things. Installing the software on more than one computer -- at work, at home, or at a friend's house -- is already prohibited by copyright law,

All that stuff if not prohibited by copyright law IF the user purchased the rights to the game from you. I don’t mean if they purchased a license to use the game. I mean they own the rights to the game and can use it to make derivative products or whatever. Hell, they could legally make copies and sell them if they bought the rights to the game. You may say this is absurd and irrelevant since they are not buy the rights to the game and only buying a license to use the game. But where did you define what it is they are buying?

This is an extreme example to illustrate a point. You need to define what it is the customer is buying and what they are allowed to do with it and what they are not allowed to do with it. It is debatable whether you could prove that the customer agreed to these terms simply because they clicked a button. I don’t think this is about proving that they agreed. I think it is about the need for you to tell them. If you don’t state the term of your licensing agreement in the EULA then where are you going to state them. Doesn’t it seem reasonable to state this information somewhere even if you can’t prove they agreed to it. Otherwise they can easily prove you didn’t define the term. I don’t even care who can prove what. It just makes sense to define what it is they are buying the rights to.

[mahlzeit]

The point *I* was trying to make, is that you don't really need a EULA because it's generally accepted that selling software involves licensing, and the terms of those licenses are usually more or less the same.

It would be unreasonable for a customer to argue that: "I didn't have to agree to any license terms when I installed the demo/whipped out my credit card, so this means I now own the copyrights to this game".

That would be ridiculous, because no other software vendor sells the full rights: everyone always licenses their products. So even if you don't explicitly show the EULA, there always is one. But why bother the customer with it?

[James C. Smith]

The point I was trying to make it to deemphasize what the end user “agreed” to and focus on what information the developer/distributor/publisher is giving to the end user. You could argue that this information is common sense, or that the user didn’t agree to it just because they clicked a button. But I still don’t see any reason to withhold this information from the user. In my mind, it’s not about getting the end user to agree. It’s about putting the term in writing and giving that information to the end user rather than assuming that the terms are assumed.