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Would software EULAs really stand up in court?

By Dave Redfern (Writer)

Published: 26 Mar 23:06 in Games

Tags: review, upgrade, windows 7, windows vista

Far Cry 2 is on offer today on Steam, so I bought it and before downloading it prompts to accept a quite bizarre EULA.

So Far Cry 2 is on offer for only $14.99 (USD) via Steam today (26th March 2009). It's a game I have been thinking about but not bought previously because it was too expensive (sorry 50USD is excessive!). Anyway, I bought and completed via Steam and went to download it only to be presented with an EULA.

So far so normal.

BUT: this one has some fantastic sections, like the following:

It is not permitted:
To make copies of the Multimedia Product,
To operate the Multimedia Product commercially,
To use it contrary to morality or the laws in force,
To modify the Multimedia Product or create any derived work,
To transmit the Multimedia Product via a telephone network or any other electronic means, except during multi-player games on authorised networks,
To create or distribute unauthorised levels and/or scenarios,
To decompile, reverse engineer or disassemble the Multimedia Product.

Which is then followed by this section a little further down:

The Multimedia Product is provided as is. The User is responsible for any costs of repairing and/or correcting the Multimedia Product.

So basically, you are not allowed to modify the product but if it goes wrong YOU have to fix it including any costs that that might incur. Now, if to fix it you have to circumvent the DRM (yes there is a separate clause about DRM) you've modified and broken the DRM and broken the EULA. If to repair the product you have to decompile an exe file or dll, again you have broken the EULA - but in the same breath you DO have the right to do that if you need to repair the product...

It is more than a little crazy; as is the total and utter refusal to accept any liability should the "Multimedia Product" cause damage or harm. Interestingly, they absolve themselves of any liability even if they ALREADY KNOW that it could cause harm:

In no event can Ubisoft be held liable for any direct, consequential, accidental, special, ancillary or other damages arising out of the use or inability to use the Multimedia Product, as well as out of the ownership or poor functioning thereof, even if Ubisoft has been advised of the possibility of such damages.

But they do allow some come back:

As some legislations do not allow exemption from liability in the event of direct or incidental damages, it is possible that the aforementioned exclusion does not apply to the User.

Well that is nice to know... What I would really like to see is one of these EULAs actually tested in court, because I do not think anyone in their right mind would allow such a contract to stand. Can you imagine what would happen if Ford or GM sold a car that they knew had defective steering but they absolved themselves of any liability? Can you imagine the outcry and the recriminations? I do not believe that such a practice is permitted in any other industry; it is almost as though the software industry has deified itself - and this is without considering the "second hand market" (a subject for another time).

But as I want to play the game I'll do what 99.999% of games players do - accept anyway without bothering to read through the whole thing thoroughly or completely.

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