EULAs Inability to Stop Lineage II Lawsuit

September 3, 2010 -

A judge’s ruling earlier last month that Craig Smallwood’s lawsuit against Lineage II maker NCsoft could continue (a suit in which Smallwood claimed he was addicted to the game), could have an impact on End User Licensing Agreements (EULA).

A lawyer at Princeton’s Center for Information Technology Policy named Steven Roosa took to his blog (thanks Slashdot) to discuss the Smallwood case, using the headline “A Software License Agreement Takes it on the Chin.”

Roosa detailed NCsoft’s attempt to stop the lawsuit by using Section 12 of its User Agreement, which is entitled “Limitation of Liability.” The judge eventually only partially granted NCsoft’s motion to dismiss.

Roosa wrote:

The Court determined that the User Agreement contained a valid “choice of law” provision stating that Texas law would govern the interpretation of the contract. However, the Court then ruled that both Texas and Hawaii law did not permit people to waive in advance their ability to make gross negligence claims. The plaintiff's remaining negligence claims survived as well.

The claims based on gross negligence remained viable for the full range of tort damages, including punitive damages, whereas the straight-up negligence-based claims would be subject to the contractually agreed on limitation on damages.

This is significant, according to Roosa, because the gross negligence claim survived, but also because “having the right to sue for “gross negligence” is the functional equivalent of having the right to sue for straight-up negligence as well—thus radically broadening the scope of claims that (according to the court) cannot be waived in a User Agreement.”

The unfolding events in the Smallwood case caused Roosa to proclaim:

The Smallwood decision, if it stands, may achieve some lasting significance in the software license wars.

A Wall Street Journal article on the subject answered Roosa’s above proclamation with the response, “Let's hope not. Because a new opportunity for parasitic litigation isn't exactly the way to boost technological progress.”

If Smallwood’s lawsuit was eventually tossed, the WSJ author wrote:

And a good thing that would be, because discovering some newly elastic definition of injury, combined with an expanded concept of "gross negligence" would be just the stuff to spur a new tortious gold rush. Do we want the tech biz focused on innovation or litigation?

The Journal writer also took an unnecessary potshot at gamers. Smallwood’s claims of being “unable to function independently” and suffering from "distress and depression” caused the author write:

Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado.

Jerk.


Comments

Re: EULAs Inability to Stop Lineage II Lawsuit

Conflicted on this.  I don't think the developer should be held liable for his problem, but on the other hand I think EULA's frequently overreach and ask users to give up rights that they legally can't.

In a nutshell, I think the judge made the right call at THIS step in the case; that EULA was illegal -- but I still hope the case ultimately gets decided in NCsoft's favor.

Re: EULAs Inability to Stop Lineage II Lawsuit

Hehe, his last name is Smallwood...

Re: EULAs Inability to Stop Lineage II Lawsuit

"Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado."

If this is the case, then video games are in-fact addictive, and we should sue all developers and publishers of video games for addicting us to this terrible hobby.

Just indicating the flawed logic of the Wall Street Journal editor. Though I suppose this doesn't differ from the condition of the average newspaper editor.

Re: EULAs Inability to Stop Lineage II Lawsuit

You forgot sueing authors and book publishers because I'm addicted to reading. After all anything that brings pleasure is potentially addicting.

Hunting the shadows of the troubled dreams.

Hunting the shadows of the troubled dreams.

Re: EULAs Inability to Stop Lineage II Lawsuit

I'm not sure how I feel about this news. While on one hand I think many EULAs are a bit... nuts, and should be limited, on the other hand I think this lawsuit is BS and I don't want it to make any progress at all.

Re: EULAs Inability to Stop Lineage II Lawsuit

Does NCSoft have to loose for this ruling to stand?

my vanity is justified

my vanity is justified

Re: EULAs Inability to Stop Lineage II Lawsuit

This was on a motion to dismiss the case outright, and the ruling means that the trial goes forward. NCSoft could very well win the resulting trial, but this ruling would still stand and can serve to establish precedent in other cases.

In fact, the only way the ruling would be challenged, is if NCSoft were to lose the resulting trial, and then challenge the motion to dismiss on appeal. If NCSoft prevails at trial, no one is going to care how they got there, and the motion ruling will therefore survive as a precedent.

So I'm kinda hoping NCSoft wins the resulting case. Besides, I don't want to see a legal ruling that says MMOs are addictive...

 

Re: EULAs Inability to Stop Lineage II Lawsuit

Seconded.  The idea that you can sue someone because you're mentally ill and as a result became addicted to their product (if we even assume video game addiction is valid at all) is scary.

"I was always feeling anxious but this tea calmed me down.  It got so I couldn't function without it.  I always had to have a mug in my hand.  I lost my life to that damned tea!"  (Agreed it's extreme, but that's kind of the point.)

===============

Chris Kimberley

===============

Chris Kimberley

Re: EULAs Inability to Stop Lineage II Lawsuit

I love that giant bullshit assumption by the WSJ that any time and money a business saves by not litigating will automatically be used to create more useful innovations consumers can use.  That's simply not how businesses operate in the real world.

my vanity is justified

my vanity is justified

Re: EULAs Inability to Stop Lineage II Lawsuit

It's the WSJ, what did you expect? Their editorial department was worthless even before the Bancrofts sold it to Rupert Murdoch. (Although, to be fair, the Bancroft-era WSJ was a hell of a lot better at keeping news and editorial seperate than anything with the Fox name on it.)

Re: EULAs Inability to Stop Lineage II Lawsuit

Any money the business saves goes into the pockets of the CEOs.

 
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quiknkoldI'm not going to Sell Gamergate anymore. It can sell itself. But I will sell the integrity of the Gamer. That we are still good people, who create and donate to charitys, Who engage with those around us and just want to have a good time.09/17/2014 - 7:35pm
quiknkoldpeople should not be harrassed and punished for the actions of a few. I've always welcomed and accepted everybody who wanted to join in. Who wanted to make them, or play them. I love good strong female protagonists, and want more.09/17/2014 - 7:35pm
quiknkoldOne of the tennants of Gamergate is to stand up against Harrassment. That Gamers arent like those assholes. We can argue for days if the Sexism or Antifeminism or corruption is there or not, But the one thing I believe in and wear on my sleave is that09/17/2014 - 7:35pm
quiknkoldBut there were these websites, attacking me and people like me, for the actions of a few. and then others joined in on Twitter and other places. there was a hashtag that said "explain in 4 words a gamer" and it made me sick.09/17/2014 - 7:35pm
quiknkoldManchildren who are awful people and that the Identity of the Gamer should die. This hurt me personally. I've always identified as a Gamer. Even in my childhood years, I was a Gamer. All my friends are Gamers. Its one of the core parts of my identity.09/17/2014 - 7:34pm
quiknkoldUltimately, With the whole Gamergate thing, I jumped on it due to the harassment. A small number of assholes harrass Anita and Zoe, and then all the publications lumped together Gamers as this collective of Sexist White Bigoted Basement Dwelling09/17/2014 - 7:34pm
quiknkoldEZacharyKnight : Lemme ask you a question. We have people who cling to walls, people who fire lasers from their eyes, people who can shapeshift....and yet fabric needs to be upheld to RL physics?09/17/2014 - 6:54pm
james_fudgebody paint?09/17/2014 - 5:33pm
E. Zachary Knightquiknkold, I stand corrected on the buttcrack thing. Still, I know of no fabric that actually does that.09/17/2014 - 5:05pm
Andrew EisenSo... it's unethical to discuss the ethics surrounding public interest vs. personal privacy?09/17/2014 - 4:45pm
prh99The source for the game was just released not long ago, it's at https://github.com/keendreams/keen09/17/2014 - 4:43pm
prh99An Indiegogo champagin bought the rights to the early 90's game Keen Dreams to make it open source and release it on GOG etc. https://www.indiegogo.com/projects/let-s-get-keen-dreams-re-released-legally09/17/2014 - 4:42pm
james_fudgeAlso http://www.breitbart.com/Breitbart-London/2014/09/17/Exposed-the-secret-mailing-list-of-the-gaming-journalism-elite09/17/2014 - 4:29pm
Andrew EisenI read the Kotaku story. Nowhere does it say anything close to "Gamers are white bigoted sexist losers." It's commenting specifically on the crap being slung at people discussing gender issues in games. So, what's the problem?09/17/2014 - 4:06pm
Andrew EisenYeah, I can imagine Spiderwoman posed like in your second link.09/17/2014 - 4:00pm
Andrew EisenThat's not the same pose. Spiderman (who is wearing an actual outfit rather than body paint) is crouched low to the ground. Kinda like a spider! Spiderwoman has her butt up in the air like she's waiting to be mounted.09/17/2014 - 3:59pm
quiknkoldAndrew Eisen : Kotaku did a whiole article on it, as did others http://kotaku.com/we-might-be-witnessing-the-death-of-an-identity-162820307909/17/2014 - 3:59pm
CMinerQuiknkold: Do you think that there are no cases where a piece of art (painting, movie, videogame, comic cover, etc) is unambiguously sexist?09/17/2014 - 3:58pm
quiknkoldand can you imagine if Spiderwoman was posed like this? http://goodcomics.comicbookresources.com/wp-content/uploads/2013/02/spider-man1.jpg09/17/2014 - 3:58pm
Andrew EisenWhat games outlet is writing articles saying "Gamers are white bigoted sexist losers"? What examples have you seen of journalists being paid off for favorable reviews? Who's shaming what now? What's the problem with critiquing the Spiderwoman cover?09/17/2014 - 3:57pm
 

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