[otakucode]

Most people would take this as a simple joke, but I think there's far more to it. Not the idea of 'soul ownership', but the fact that there exist essentially NO consumer protections whatsoever when it comes to these "digital licenses" that the gaming industry is increasingly using. With these licenses, gamers are stripped of nearly every single right they would retain if they had bought the game in retail form. It would be illegal in most countries for the sellers of any retail product to restrict the rights of the consumer in the way that game companies do to gamers. No seller can forbid you from selling the product you buy to someone else. With game licenses, they do. No seller can forbid you from using the product and then giving it to a friend. With game licenses, they do. No seller can forbid you from allowing a friend to borrow the item. With game licenses, they do. The list goes on, and is quite long.

As more and more transactions take place involving 'licenses' instead of transfer of traditional goods, we are losing a tremendous amount of freedom with how we interact with and use our purchases. I think it would be a good idea for people to start standing up and talking to their representatives about the need for consumer protection laws in the arena of digital licenses. The way it is going, we'll only end up with such things if the companies end up crossing the line and doing something entirely legal that would infuriate the general public to a great degree, such as Apple locking every iTunes customer out of music they already bought a license for until they paid another $1 per track to re-purchase access to it. That would be completely legal and within their rights, and the consumers would have no legal grounds to comaplin at all. They signed away their rights. In EVERY other area of commerce, there are laws preventing consumers from even being capable of signing away such rights, and preventing sellers from exploiting their customers in such ways. Not digital media, though. There are no protections at all when it comes to 'licenses.'

[grellas]

It is generally unlawful under common law in the U.S. to place absolute restraints on what is called the "legal power of alienation" when someone sells you property. In other words, once you acquire ownership of property from someone, you normally are free to re-sell it or give it away or whatever. The law will generally strike down attempts of seller to attach strings to the grant so as to burden what you can do with it. Attempts by sellers to put absolute restraints of this type on their buyers are generally struck down as being against public policy. The idea is that society strongly benefits from having property be freely transferable and no one therefore should have the power to tie it up by placing contractual restrictions in a grant by which the property is transferred. A more extreme situation pertained as well under the old system of inheritance, by which property was bequeathed with "fee tail" transfers stipulating, e.g., that the property would forever remain in the male line of the family (the subject of so many Jane Austen novels). That system was eventually replace by a "fee simple" system of inheritance that severely limited a decedent's power to tie up property after his death.

With licenses, the law gives the owner vast discretion in how to fashion a license because it is treated as a limited grant that can be shaped almost entirely by the terms of a contract. To date, courts and legislators have not seen the need to place "public policy" restrictions on the way licenses are fashioned and freedom of contract continues to rule unimpeded in this area. In other words, if you agree to it, you are bound by it.

What the article here underscores, though, is that the very idea of a contract is something of a fiction when it comes to downloads. That does not mean it is not upheld in courts of law. The law very frequently uses fictions that make it convenient for commercial transactions to occur. Thus, if one must "accept" contractual terms of use in order to download a product by clicking on something saying that he accepts them, and in reality almost no one reads the stupid things, this doesn't mean that there hasn't been a meeting of the minds such as to form a binding contract. While there has in reality been no "meeting of the minds" because the one party has not bothered to read the contract, the law presumes that any responsible person would do so and therefore says that you are bound by the terms whether you in fact read them or not. Hence, the fiction that there is a true meeting of the minds in such cases. If it were not for such fictions, chaos would prevail and this form of commerce would cease to exist. Since it benefits society to have online forms of digital media distribution, the law supports the fiction to enable this form of commerce to exist by protecting the interest of vendors of digital media through the idea of binding contractual restrictions. That part is not about to change even though most people do not in fact read the contractual terms (as this piece very cleverly shows).

It is another matter altogether whether any given term that happens to be included in such contracts is enforceable or not (even though the contract as a whole may be). Of course, a clause that makes the contract literally a Faustian bargain would not stand but most clauses will, including the ones of which you complain. I don't think courts will normally take the initiative to strike these down, but legislatures may be persuaded to do something if significant social policy concerns can be highlighted and made compelling. As indicated above, this has happened in the past in analogous areas of law.

[lkijuhyghjm]

Like when you thought you had bought a movie, but it turns out you don't have the right to watch it on your computer, or in another country, or in your car, or skip the trailers.

But strangely when the plastic disk breaks you don't get a new replacement one - even though all you bought was a licence to watch the contents