Software [Non-]Ownership: EULAs and Thinking About Property

We don’t really own most of the software we buy. As one writer put it a few years ago, “the software on my computer may as well be tied to a long piece of elastic, just waiting for the publishers to give it a tug.” That “piece of elastic” is a license, as in “End User LICENSE Agreement.” Almost all of the software we buy- especially what we download rather than physically purchase- is licensed to users by publishers and developers. These licenses vary from one piece of software to another*, but for a lot of games, the licensor (publisher or developer) has the legal right to take the game away from the licensee. Usually, the licensor will include specific reasons why they might do this, but will often round out the list with something like “or for any other reason.” There are not many limits on what this license cannot contain, must include, or how it has to be structured.

This model has been around for a long time, but I think it is fast becoming a serious problem. The core of the problem is that almost all users think, feel, and act as though they do own the software they have purchased. The American concept of property is still fundamentally rooted in John Locke’s Second Treatise of Government (a text that was a tremendous influence on the Founding Fathers and early US statesmen, politicians, and writers): if you work on something (or pay for it, or both), you have a claim of ownership on that thing. It is how we understand all of the other ownership paradigms in our society, and makes it easy to determine where ownership begins and ends. I cannot think of a single instance where one might purchase a physical object and not have full ownership rights over that object. Any arrangement where something is transferred with some kind of “elastic string” still attached is not called a “sale.” It is called “renting,” “leasing,” “borrowing,” or possibly “putting under mortgage.”

For most American minds, the concept of a “sale” includes the concept of a complete ownership transfer. I think it is easy to consider this one of the central reasons why there is so much resistance to copyright law, digital piracy laws, and other abstract controls on ownership of non-physical property. The laws that guide physical property do not apply to digital property, even though the only model we have for thinking about digital property is our history of thinking about physical property (Locke). A key point of contention is whether the legal concepts underpinning physical property must be different from the legal approach to digital property. The fact that US law does take these two different approaches does not mean that US law must take these two different approaches.

It may turn out that changes in net neutrality will affect how publishers and developers rethink this business model. As internet use becomes a worse experience, especially for data-intensive games, it is more important that companies ACTUALLY sell the product, not just license it. A data-choked internet will increase the need for offline gaming. It will create a whole new level of challenges for always-online DRM and increase the potential for server-crashing launch fiascos (e.g., Diablo3 and SimCity). A big reason that companies went to online-DRM models was to combat piracy. If net neutrality slips away, the ISPs might make piracy difficult enough (intentionally or unintentionally) to make developers feel more comfortable with moving to a sale-not-license model.

The only games currently practicing this kind of model are “abandonware” games: games whose developing companies have closed up, or have simply allowed their works to pass into the public without fuss. It is not clear that all presumed “abandonware” games are actually “orphan works” according to actual US copyright law. Indeed, a lot of games I’ve seen peddled under this banner are decidedly NOT orphan works and are not subject to the same freedom of transfer that the seller implies. But the videogame world operates on the legal principle of developers declining to enforce their civil rights against consumers as heavily as its programmers rely on the principle of “last in, first out.”

*I think the analysis is different for different software. Stricter license make sense for, say, reduced-cost versions of editing, publishing, or creative suite software for “Academic Use Only.” My position in this post is certainly not that “all licenses are bad,” or anything remotely close to that sentiment.

 

EDIT/ UPDATE:  Another recent blog post on this subject, from a slightly different angle.

 

Ownership of Digital Material: I own it, so why don’t I have it?

This topic has been well-addressed by a lot of games journalists. The 4th-to-last panel in this comic summarizes the perspectives of many: http://www.escapistmagazine.com/articles/view/comics/critical-miss/8674-God-Emperor-of-Steam-Epilogue

Usually, we think owning something is having something. Even for claims to IP, which isn’t tangible, we have a unique and specific claim to the use of something. With some games, I seem to have a claim to use the software, but only at the discretion and convenience of the service; if the service is not functioning for some reason, I cannot play the game. I also cannot transfer the claim to play the game, as I could in the olden days of 2001 when we bought video games in physical format. One might argue that even buying a book was never an absolute claim over the book’s intellectual property. A copyright means that a bundle of rights are reserved for the author/artist/publisher/developer/creator/whoever owns them, and as such are off-limits to everyone else. Yet there is something different here: I could always resell my single copy of the book after I finished enjoying it. I cannot pass on the joy of a used copy of some games managed by certain species of DRM (or at least, with nowhere near the ease one might expect).

It seems that 99% of arguments about rights to own physical vs. digital objects are centered around the right to republish and redistribute (in one way or another). With only circumstantial evidence, I speculate that the overwhelming impetus behind software developers’ decisions to use digital rights management procedures and mechanisms is to curtail the economically harmful practices of the reproduction of their works.

While some may argue the business practices of EA and Blizzard are not economically sustainable, my question is about the legal sustainability of DRM: “Do practices like ‘always-online DRM’ violate fundamental legal principles of ownership?” While they seem to violate some ethical and cultural notions of ownership, they do seem legally permissible.

One of the early lessons in first year contracts in law school is that you can contract out of, or around, almost anything. If you sign (or click accept) a contract that says you agree to limited circumstances of ownership, there isn’t much of a case that you are entitled to more than your contract permits. For example, Steam’s EULA reads: “All… ownership rights … to the Software and any and all copies thereof, are owned by Valve US and/or its or its affiliates’ licensors.” (Section 2, paragraph E: Ownership). Valve owns the software; we humble peons are merely licensed to play with their toys when Steam feels ok with it.

Illegal contracts are not recognized by courts, but consent to not sell a legal videogame is not an illegal contract because neither the subject matter nor the nature of the contract violates the law. So long as the publisher includes some kind of contractual agreement that you acknowledge and accept the DRM restrictions placed on your game, it seems entirely unlikely that there is any legal recourse available to fight these restrictions.

So let’s hope these practices prove economically unfeasible very, very quickly.