hedwards: If this goes into effect I won't be buying any more games here.
Gersen: Seriously I think the problem is not with GoG but with you never reading existing EULAs to begin with.
And you have no idea how contract law works at all. I'm not an attorney, but I can tell you that the way the terms have been interpreted previously has changed. And GOG doesn't get to reinterpret the terms unilaterally after all this time in order to make things more favorably for them.
hedwards: I mean, what the fuck, we can't sell or transfer codes and we're limited to 5 gifts per day? What moron thought that was a good idea?
Gersen: Except for the 5 gifts per day limit, how does it change anything ? You could never sell one of your GoG games, you could never "give" them apart from using the gift system.
Of course you could do it, and GOG waived any right to enforce that term by virtue of ignoring the issue for so many years. If the trading and buying/selling had been done on a 3rd party site, they could be forgiven for ignoring it. But, as it is, their failure to enforce their own rule represents a waiver of the provision.
Saying that it was always in there, when it was never enforced and GOG was turning an obvious blind eye is missing the point. At a minimum the interpretation of the term has clearly changed.
hedwards: And we need to get permission to do let's play videos? Are you guys fucking mad. You know damn well that the rights holders don't have the right to restrict that and it's more than a little bit hypocritical of you guys to put that crap into this draft.
Gersen: The current game EULA
already "forbid" that, it
already says that the license that is granted to you is for personal, non-commercial use.
Commercial Let's Play are a "gray" area, some says it fall under "Fair Use" (in which case it's protected no matter what the EULA is) other says it's not a "parody"/"review" and therefore it is not "Fair Use". Personally I consider it to be Fair use but it never was tested in court for now.
This isn't grey area. It's not even a little bit grey. It's never been tested in court specifically because companies know damn well that they can't enforce that term. It's like the jurisdiction and the relicensing clauses. They're in the contract, but they're completely unenforceable. the first time they go to court with that and lose, that's that. They remain in the contracts because nobody they want to scare people into thinking that they have fewer rights than they do.
It won't ever go to court because there's no way they can enforce it.
hedwards: As far as the jurisdiction goes, fuck off. You have no right to dictate California as neither you nor I are located in California. California does not have jurisdiction in event of a legal dispute no matter how much you might want that to be the case.
Gersen: Before they were in Cyprus, and they aren't located "Cyprus" to being with, if they want to be located on the moon why does it matter to you`?
Because travel is expensive and if I choose to file a lawsuit, the court has to have actual jurisdiction. You don't get to name a random court that you think is going to be friendly. If they want to file suit against me, they have to do that in WA, regardless of what the agreement says. And If I want to file suit against them, the likely venue would be Poland. And in no case would a Californian court have jurisdiction as neither I nor GOG are located there.
hedwards: Also, you don't have the right to change the terms of the contract without allowing us to have a full refund on any and all purchases we've made. I'm not sure what things are like in Poland, but you can't just retroactively change the terms of the license because you feel like it. You have to give a refund for people that are effected otherwise there can be no legal change to the contract.
Gersen: Except they can, it's written in the EULA that those can be changed anytime (whenever it's legally binding is debatable and change from country to country), also : you don't know if they are going to be changing the games EULA, they are talking about the "term of service" and the "privacy policy" they didn't say that they wanted to also update the games EULA. And again most of the "contentious" points mentioned in the new EULA
already existed in the current game EULA, you
already accepted them there is nothing retroactive.
The ability to put something into a EULA is not the same thing as having an enforceable agreement. The only way that they can change the terms is if they allow people to opt out of the changes. I've got a rather sizable library of games here and ultimately they don't have the legal right to change the licensing on the games that I've already bought.
To my knowledge EULAs and ToS almost never go to court specifically because the companies the depend upon them know that they're not likely to stand up in court. I'm not aware of any cases where a company took somebody to court over a changed agreement.
Cell phone carriers in the US have to waive the early termination fee if you refuse to accept changes to the contract or they have to let you continue to use the service under the previous contract because you cannot change the terms of the contract unilaterally after the sale.
shaddim: Maybe you are a lawyer and you can enlighten us?
Gersen: I am not a lawyer but I actually have read the first post of this thread...
I'm not an attorney either, but I'm familiar enough with contract law to know you're full of it. Just because something is in a contract doesn't mean that it's enforceable and companies like GOG bank on the fact that people are largely ignorant of that fact.
