EULAs Inability to Stop Lineage II Lawsuit

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.


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  1. 0
    Thad says:

    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.

  2. 0
    Adamas Draconis says:

    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.

  3. 0
    FlakAttack says:

    "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.

  4. 0
    DJRBK says:

    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…


  5. 0
    Chris Kimberley says:

    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

  6. 0
    Mad_Scientist says:

    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.

  7. 0
    Technogeek says:

    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.)

  8. 0
    tetracycloide says:

    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

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