Oh the EULA.
The EULA (or End-User License Agreement) is that annoying pop-up we are all forced to agree to when we install new software. These contracts permeate and govern many relationships in our life, but who actually reads all of them. According to people who study this stuff, it would take between 200 and 250 hours a year to read all of the EULAs that we need to agree to in order to go on with our lives. My guess is not many people do. Other people who study these things found that the average EULA for a top 50 software product at download.com came in at 2,752 words. Adobe Reader came out on top at a whopping 9,313 words (or 41 double spaced pages). These “other people” also determined it would take 13 minutes to read the average EULA in download.com’s top 50 list. With all of this in view, it would appear that we agree to between 923 and 1,154 EULAs each year. Since we aren’t all agreeing to all of the same EULAs, use your imagination, and without too much of a stretch you can quickly realize that there are a lot of EULAs floating about.
Now, someone has to draft these EULAs. That could be big bucks for niche lawyers specializing in these documents. So why is it that game developers would only pay a lawyer $5 for a document that governs the entire relationships between the software developer and its users? If you don’t want to watch the hyperlinked video, these developers and industry experts say that Lawyers are abusing the copy and paste functions of their word processors.
I was skeptical of this claim and embarked on a journey into the land of quasi-science by taking a non-random sample of “user generated content” clauses from EULAs accompanying video-games that I was familiar with. In my Saturday afternoon study I found that Rockstar Games, Take-Two Interactive, and 2K Games all used the exact same clause.
So what does this mean?
Well, first it means that I need to brush up on my scientific methods.
More broadly, this suggests that the industry may be moving towards standardization of EULAs through the legal profession’s unwillingness to innovate. Of course, I may have merely stumbled upon three EULAs drafted by the same individual, in which case we would expect a certain level of copying (what lawyer doesn’t want to use a precedent?). If the former is true, this may be a good thing for consumers. Continual use of standardized or copied clauses would increase the probability of having a consumer knowing what he or she was agreeing to even if that particular EULA was not read. Wouldn’t it be great if we could read one EULA to rule them all?
Unfortunately, if this trend is true, my dream of building a niche market of drafting EULAs for video game developers may be going down the drain. At $5 a pop, my hard efforts of hitting copy and paste would barely recoup the printing costs for all those EULAs. Thank goodness for paperless offices.
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There’s a good chance that those three clauses WERE drafted by the same individual, as Take Two owns both Rockstar and 2K Games.
However, I wouldn’t be surprised if EULAS as a whole are drafted to use universally equivalent language. It always seems to me that many solicitors primarily draft contracts with an interest in avoiding negligence suits: you can’t be negligent if you’re doing what everyone else does (well, you can, but it’s harder to prove).
I can’t help but feel like it’s a bad habit on the part of lawyers though. While sticking with specific language might be a good idea for drafting wills (how many cases have we read where the court distinguishes a precedent because of happenstances of grammar?), contractual clauses are still interpreted in their context.
Lord Denning’s red hand pointing at a clause depends upon what the party would expect in the circumstances. The divergent ways in which we consume video games today should mean we have divergent expectations and time to contemplate what we’re getting in to—compare downloading an app on your phone with the press of a button and the scan of your thumb with going to the store and purchasing GTA5. I would hope that using the same form contract would get someone into trouble sometime, even if it won’t lead to a negligence suit.
Not to mention that if an indie developer wanted a EULA that gave users generous rights to create, distribute, and own user generated content like mods, skins, and the like while at the same time retaining some rights, there would be a massive price jump as they try to find a lawyer to redraft the standard AAA-style EULA (maybe there’s your niche?). Uniformity in contractual terms can be good for consumers and businesses, who know with greater certainty what they can, can’t, and must do under the contract, but I can’t see good coming out of a standard that makes giving broader, more user-friendly rights to gamers more difficult for developers.
This is a tough one. Having a EULA has become an industry standard document (whether it needs to be or not). Meanwhile the industry has not developed “standards” so to speak. Allow me to provide an example. In the broadcast business contracts for the sale of broadcast time to advertisers eventually became very confusing with provisions unique to every broadcaster (and even relationship). Eventually the industry associations of the broadcasters and the ad agencies effectively got together, instructed counsel and created a standard form which everyone adopted. The form allowed for some customizability, but mostly around cost, delivery date, bonuses etc. If for some reason you wanted your lawyer to fill it out it would cost you more then $5, but in the grand scheme of things not all that much more. The games software industry needs something like this perhaps?
jon