Ubisoft Masterserver down? (merged)

[Gammelpreusse]

Originally Posted by Neal Stevens

Well, Colonel, I would agree with you that Ubisoft and Steam and Blizzard and ATT and Comcast have an obligation to keep their services available, but no one, not ever Obama, can ensure total reliability in the face of deliberate and provacative attacks. No system is perfect. Heck, you see me post here every day and cannot even spell my simple name correctly.

But that is the whole point why folks get so upset. A single player offline game, which due to its very nature should never have the problem the likes of big internet games, gets all the disadvantages coming with the latter without a single benefit. As you stated yourself, no system, especially internet based systems, are perfect, so the very promise beforehand of stable servers was a lot of hot air to begin with.

Your very entry here makes this clear. Is a certain hostility towards such a policy that hard to understand?

[U-Bones]

Originally Posted by Gammelpreusse

But that is the whole point why folks get so upset. A single player offline game...?

That is where many miss the bus. SH5 is NOT sold as such. This is not your grandpa's Silent Hunter.

I don't like it either, but they can sell whatever they want. As long as consumers buy it, they can even make a profit.

I chose to accept the risk and not tilt the windmill, but I respect other peoples stand on the principal, as long as it is truly principled. I do not respect indignant claims of being swindled when they are coupled with the inability to read clearly labeled products before buying however.

Clearly, Ubi did a poor job of mitigating the risk inherent in their model, on top of pissing folks off with the whole concept, but they certainly did not mislabel the product.

[RSColonel_131st]

Originally Posted by U-Bones

I don't like it either, but they can sell whatever they want.

Is that really so? Do big multi-national companies have the right to sell products in a way that inhibits basic customer rights (like resale of goods)?

We know that this is a very grey legal area here, the EULA counts for nought. By the time you see it, Retailers will not accept returns of the software, which is the whole point of the EULA.

The main problem is that EU law, unlike US Law, is not well tailored to class-action type lawsuits. Because I firmly believe UBI would lose and at least have to permit resale of OSP games if they were challenged in court.

But that's all besides the question anway. The question really is: Do we want to let them get away with "selling whatever they want" or do we show them some border of acceptable behaviour by voting with our wallets?

[Bilge_Rat]

Originally Posted by RSColonel_131st

Is that really so? Do big multi-national companies have the right to sell products in a way that inhibits basic customer rights (like resale of goods)?

We know that this is a very grey legal area here, the EULA counts for nought. By the time you see it, Retailers will not accept returns of the software, which is the whole point of the EULA.

The main problem is that EU law, unlike US Law, is not well tailored to class-action type lawsuits. Because I firmly believe UBI would lose and at least have to permit resale of OSP games if they were challenged in court.

But that's all besides the question anway. The question really is: Do we want to let them get away with "selling whatever they want" or do we show them some border of acceptable behaviour by voting with our wallets?

Of course they do, you do not own software, you are granted a limited license to use software which belongs to Ubisoft. They can subject the license to any restrictions they which. You agree to those restrictions when you agree to the EULA prior to installation. Your only right as a consumer is to say you will not buy the game under those conditions.

[Silanda]

Originally Posted by Bilge_Rat

They can subject the license to any restrictions they which. You agree to those restrictions when you agree to the EULA prior to installation.

No they can't, having a EULA doesn't exempt them from the obeying the law. As RSColonel_131st said, they are even more legally suspect due to the fact that the software has to be purchased, and packaging opened, before the customer even has a chance to read the EULA. Can a contract be binding when the customer has no chance to view the contract until after it is formed (i.e. the point of sale)?

IANAL but I'm not aware of this being tested in a European court, does anyone else know of any cases?

[Iridium]

Originally Posted by Silanda

IANAL but I'm not aware of this being tested in a European court, does anyone else know of any cases?

It's been tested in a few courts (US tends to get the most attention) but it always varies wildly based on the case.

In some of the cases the argument is that you can see the EULA before you actually install anything (ProCD, Inc. v. Zeidenberg), especially if the box states that there's a EULA to agree to before you install it. Another (Step-Saver Data Systems, Inc. v. Wyse Technology) was over a company claiming on the outside of the box that their software worked with MS-DOS but that they couldn't be held liable for anything if someone actually opened the box. When it turned out it didn't work with MS-DOS after all they got sued, and it was ruled that that EULA was unenforceable. That's a gross oversimplification of both cases, mind you.

I haven't looked at Ubisoft's EULA for SH5. It wouldn't surprise me to see a clause in there stating that they can't be held liable if their servers are inaccessible. Don't know if that would stand up in court, either.

There are dozens, if not hundreds, of cases around this sort of thing, and there are dozens, if not hundreds, of different answers about it. The best thing to do, if you really want to spend the time and money to find out, is contact a copyright attorney.

edit- looking at the EULA now, which has a few funny clauses. Technically speaking you may not A) install the game (as this makes copies of the multimedia work from the CD to your hard drive), B) "To modify the Multimedia Product or create any derived work", which sounds like no modding, and C) " To create or distribute unauthorised levels and/or scenarios" which would also cover modding including, possibly, stuff like Trigger Maru, RFB, Monsun, etc.

Furthermore, the user must acknowledge that A) Ubisoft can collect personal data (they don't say what exactly except for that its allegedly in line with their privacy policy), B) that Ubisoft is not responsible for "damages" resulting from the "inability to use the product" which I totally called in my paragraphs above, and that C) the only warranty for the game provided is 90 days for the physical disk, with no warranty whatsoever on the ability to connect to the servers.

So there you go. All you modders, shame on you.

[jwilliams]

Originally Posted by Silanda

No they can't, having a EULA doesn't exempt them from the obeying the law. As RSColonel_131st said, they are even more legally suspect due to the fact that the software has to be purchased, and packaging opened, before the customer even has a chance to read the EULA. Can a contract be binding when the customer has no chance to view the contract until after it is formed (i.e. the point of sale)?

IANAL but I'm not aware of this being tested in a European court, does anyone else know of any cases?

The contract isnt binding until you click agree. you have to click agree before you install. if you dont agree, then you can return the product to Ubisoft for a full refund. This means that you cant install the product as, as soon as you install then you've already agreed.

Ubisoft guarantees to the original buyer of the Multimedia Product that the compact disc (CD) supplied with this Multimedia Product shall not show any fault during a normal-use period of ninety (90) days from the invoiced date of purchase, or any other longer warranty time period provided by applicable legislation

4- Termination of the Licence

The Licence is effective from the first time the Multimedia Product is used.
It is terminated automatically by Ubisoft without notice if the User fails to adhere to the terms and conditions of the Licence.

If you cant connect to their servers. tough luck cus they stated that:-

7- Liability

In no event can Ubisoft be held liable for any direct, consequential, accidental, special, ancillary or other damages arising out of the following: (1) the use or inability to use the Multimedia Product, (2) inadequate performance or poor functioning of the Multimedia Product; (3) the loss of any data or information, including but not limited to the loss of any saved games or data associated with the Multimedia Product saved on Ubisoft’s servers; and (4) the loss of any profit or business as a result of owning or using the Multimedia Product, even if Ubisoft has been advised of the possibility of such damages.
In particular, Ubisoft accepts no liability regarding use of the Multimedia Product contrary to the precautions for use set out in the manual and on the packaging.
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.
This Licence to use the Multimedia Product grants specific rights to the User and he may have other rights depending on the laws in his country or state.

But i did notice that in the EULA they said that should they turn off the servers, they WILL release a patch to allow offline play. WOOT !

You understand and agree that this Multimedia Product requires an online connection at all times and the Multimedia Product must be played through the Internet services provided at ubi.com. In the event Ubisoft terminates or discontinues Internet services associated with this Multimedia Product, Ubisoft will provide a software update that will allow the User to utilize the Multimedia Product without connecting to Ubisoft's servers.

But of cause Local law takes presidence over this EULA.

[NefariousKoel]

Originally Posted by Bilge_Rat

Of course they do, you do not own software, you are granted a limited license to use software which belongs to Ubisoft. They can subject the license to any restrictions they which. You agree to those restrictions when you agree to the EULA prior to installation. Your only right as a consumer is to say you will not buy the game under those conditions.

EULAs have no legal backing. They are complete fabrications from whomever made them. Any Dick in a kerchief can write up a document demanding you turn your firstborn child over to them in the future. That doesn't make it legal.

They have no bearing on copyright laws, nor customer's rights. Anyone can write up a document but it holds no water until the legal system backs it.

And this DRM nonsense has no such backing. Quite the contrary.

[jwilliams]

Originally Posted by NefariousKoel

EULAs have no legal backing. They are complete fabrications from whomever made them. Any Dick in a kerchief can write up a document demanding you turn your firstborn child over to them in the future. That doesn't make it legal.

They have no bearing on copyright laws, nor customer's rights. Anyone can write up a document but it holds no water until the legal system backs it.

And this DRM nonsense has no such backing. Quite the contrary.

DRM does have such a legal backing :-

Digital rights management systems have received some international legal backing by implementation of the 1996 WIPO Copyright Treaty (WCT). Article 11 of the Treaty requires nations party to the treaties to enact laws against DRM circumvention

http://en.wikipedia.org/wiki/Digital_rights_management

And EULA's have won a few legal cases. Here's one example (Davidson & Associates are the lawyers for BLIZZARD (world of warcraft)) :-

In a more recent case involving software EULAs and first-sale rights Davidson & Associates v. Internet Gateway Inc (2004)[1], the first sale reasoning of the Softman court was challenged, with the court ruling "The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." However, the point was moot as the court found the plaintiff's EULA, which prohibited resale, was binding on the defendants because "The defendants .. expressly consented to the terms of the EULA and Terms of Use by clicking 'I Agree' and 'Agree.'"

http://en.wikipedia.org/wiki/First-sale_doctrine

So as you can see, EULA's do have legal backing.

[Nordmann]

Great! I'm going to write up my own EULA, slap it on some dodgy, overpriced products, and as soon as someone buys said products, they have automatically agreed to my conditions of sale, where they have no rights and can't return the product for any reason.

I wonder how long I'll get away with it, before I'm dragged off to court, fined, and possibly imprisoned!

Ah, the hypocrisy of law. What's all well and good for the corporations, is highly illegal for the individual.

[SabreHawk]

Williams is right, and you can be sure that a company like UBI has lawyers working for them just like any company does and have had them go over the entire thing and assured them of the legalities.

I dislike this DRM thing as much as anyone, but rest assured no company would implement something like this without having it checked over by their lawyers before doing so. No buisness in it's right mind would do otherwise. Especially one thats in the software industry, where rights and leagalities abound.

I work in the housing industry, and our company doesnt do or say anything without consulting the companies lawyers. We can be in deep crap for anything given the way the fair housing act is written.

[RSColonel_131st]

Originally Posted by jwilliams

DRM does have such a legal backing :-

http://en.wikipedia.org/wiki/Digital_rights_management

And EULA's have won a few legal cases. Here's one example (Davidson & Associates are the lawyers for BLIZZARD (world of warcraft)) :-

http://en.wikipedia.org/wiki/First-sale_doctrine

So as you can see, EULA's do have legal backing.

Okay, so if I don't agree with the EULA but I had to open the box in order to see it, what do you recommend (same question for Bilge Rat)? Can you tell Amazon they have to take returns on opened software from me? You might get away with it in a store, but try writing to Amazon - someone here did with SH5, and failed.

BigBang, if you can prove that the product doesn't work, that may be one thing, but if you simple do not agree with certain clauses in the EULA? What do you do then?

Look, it's really simple: You can't redefine or change contract terms AFTER the sale is made final. If by opening the box and reading the EULA the sale is made final (i.e., your retailer will not accept opened software) then the EULA can not be legally binding, otherwise it would equal a contractual term FORCED on your as customer with no way out.

But that's besides the point, which is: Do you really want a company to have the right and sell a defective product with no legal recourse for the customer?

[JScones]

Originally Posted by Bilge_Rat

Of course they do, you do not own software, you are granted a limited license to use software which belongs to Ubisoft. They can subject the license to any restrictions they which. You agree to those restrictions when you agree to the EULA prior to installation. Your only right as a consumer is to say you will not buy the game under those conditions.

Wrong! Publishers are not above state/federal law. Just ask Autodesk...

In Autodesk Case, Judge Rules Secondhand Sales OK
2 Oct 09

A Seattle judge ruled in favor of a man arguing that he has the right to sell secondhand software, in a case that had some people worried about an end to used-book and CD stores.

The suit was initially filed by Timothy Vernor after eBay, responding to requests by Autodesk, removed the Autocad software that Vernor was trying to sell on the auction site. EBay later banned Vernor from the site, based on Autodesk's complaints.

Vernor argued that since he was selling legitimate versions of the software -- not illegal copies -- he hadn't violated any laws.

Autodesk contends that it doesn't "sell" its software, but instead licenses it and therefore prohibits buyers from reselling it.

But no matter how Autodesk describes the agreement with customers, it is transferring ownership to end-users, the judge, from the U.S. District Court for the Western District of Washington, found. Autodesk had argued that its restrictions on the way that buyers can use the software show that users license rather than own the software.

"A person who buys a home is nonetheless restricted in his use and subsequent transfer of the home by property laws, zoning ordinances, and fair housing statutes," Judge Richard Jones wrote in his ruling. "No one would characterize the person's possession, however, as something other than ownership. Similarly, the court cannot characterize Autodesk's decision to let its licensees retain possession of the software forever as something other than a transfer of ownership, despite numerous restrictions on that ownership."

In previous arguments, both sides warned of dire consequences that could follow the judge's decision. But he said he thinks the impact will be minimal.

Autodesk argued that if the judge decided that people own its software, prices will rise for end-users. But that argument ignores the secondhand market, which offers better prices for consumers, the judge noted. "Although Autodesk would no doubt prefer that consumers' money reaches its pockets, that preference is not a basis for policy," Jones wrote.

Vernor has argued that if the judge ruled that the software was indeed licensed, then any copyright owner could impose severe restrictions on how their products are used. For instance, book publishers could bar resale and lending, eliminating the used-book market as well as libraries.

Even if he had ruled against Vernor, such fear was "misplaced," the judge said. "Although the interpretation of 'owner' in the Copyright Act no doubt has important consequences for software producers and consumers, the court is skeptical that its ruling today will have far-reaching consequences," he wrote.

The judge denied Vernor's charges against Autodesk of copyright misuse.

Autodesk did not immediately have comment on the ruling, which it can appeal.

It's just that Tim had the balls to call their bluff (note this was the second hearing - Autodesk also lost the first). There's other similar examples in other juridictions across the world. I'm actually waiting for a challenge against Ubisoft to come from Germany...with emphasis on consumer rights, I'd suspect that Ubisoft would fight a losing battle there.

Anyway, as someone who writes EULAs, and having a lawyer that advises me on such things, I can assure you that they only exist to fool the gullible. When challenged, then unless the user has broken an underlying law (such as the Copyright Act), they don't hold up well at all.

[TarJak]

^ As someone that writes negotiates and closes IT contracts including software development and purchases I have to agree. EULA conditions rarely stand up in court and are worth less than the light emited by the pixels used when viewing them.

[RSColonel_131st]

Originally Posted by Bilge_Rat

Of course they do, you do not own software, you are granted a limited license to use software which belongs to Ubisoft. They can subject the license to any restrictions they which. You agree to those restrictions when you agree to the EULA prior to installation. Your only right as a consumer is to say you will not buy the game under those conditions.

You are factually wrong.

The EULA is not legally binding in many EU countries. And it logically can't be - once you get to read it, you can't return the game anymore since the shops do not accept returns on opened software.

So no, they can not put any specific restrictions in the EULA, which you are only made aware of AFTER you bought the game and can't return it if you disagree.

If they have any specific restrictions to claim they need to be visible before opening the box. This is not the case.

So your standpoint is legally wrong.