With the ongoing calls for regulation of AI and increasing fears it may pose an existential threat to humanity, it is understandable that the persisting legal and ethical challenges posed by the widespread use of end-user licence agreements (EULAs) and Terms of Service (ToS) (also called Terms of Use – ToU) have not been recently at the forefront of the public discourse. Nevertheless, these legal tools are omnipresent, largely un-read and yet govern ‒ even dominate, one might say ‒ our digital interactions and behaviour. The fact that they do not attract much attention or scrutiny should be a cause for concern.
EULAs are the principal tool which governs the relationships between the providers of digital products and services and users, and between the users of these products and services. In the vast majority of cases, it is incumbent on users to accept these EULAs and agree to their terms and conditions in order to access and interact with the content or service concerned. Our heavy reliance on this particular legal mechanism presents a number of issues.
Accessibility. EULAs of this kind were originally designed as contracts to serve a niche set of relationships between software vendors and specialist end-users. They were never aimed at the general public, which is reflected in the form, language, and a manner of communication (from physical contracts, to click-wrap and browse-wrap digital variations). To the average member of the public, the typical EULA is shrouded in opaque, complex language which is difficult to decipher.
Contractual freedom. These EULAs are contracts of adhesion and involve a simple ‘take it or leave it’ proposition. Virtually all licences between providers of digital products and services and the end-users are contracts of adhesion, where no meaningful bargaining takes place.
Scope. Within the context of the video game industry, EULAs include permission to access and use the copyright-protected works which make up the video game in certain ways, and under specific conditions. EULAs will regularly address a wide range of interactions going beyond copyright, including what can and cannot be done within a game, what can and cannot be done with a game, whether, to what extent and what type of user-generated content may be created, and more. The implication of this is that when a player fails to comply with any single one of the licence terms and conditions, the rightsholder (typically the video game publisher) has grounds to argue that continued use of the game not only constitutes breach of contract but also amounts to copyright infringement since the licence provides that the authorization given to the player to use the game is terminated under such circumstances.
Power imbalance. It is easy to see how many of these terms are drafted in favour of the providers, placing players ‒ and consumers in general ‒ into a position of disadvantage. Players’ accounts can be suspended or terminated for the slightest infraction of these terms (as interpreted by the rightsholder) and the legitimacy of such action may be very difficult to challenge.
Impact. Relying on EULAs as the main mode of governance with regards to digital products, services, and experiences (think of the complex web of licence agreements underpinning the Metaverse) ultimately turns providers and rightsholders into de facto legislators and regulators.
Chilling effect. While the validity and enforceability of unfair contract terms is in doubt, it is unlikely that players in different jurisdictions would have an actual knowledge of this and will therefore act in accordance with the rules regardless of their validity in law, or out of excessive caution. This further amplifies the effect of these legal instruments – extending the original scope of copyright, potentially transplanting foreign legal standards into domestic legal regimes, creating artificial barriers to legitimate uses and practices with regards to copyright-protected works.
In the absence of any other, more user-friendly, solution, we have accepted EULAs as an inevitable and necessary tool that governs our behaviour online, the attitude being ‘they may not be perfect, but they do the job’. Given the number of licence agreements every player, user, and customer assents to every year (potentially in the thousands), the fact that they do not read them or understand them makes this a serious public policy issue.
Instead of uncritically turning to tech companies to solve these problems, we need to rethink our relationship with technology, what it can and cannot do for us, and what types of technology governance and value configurations will be compatible with the future we as a society want. This can only be facilitated by proactive, evidence-based, and industry-informed laws and regulations. We should not content ourselves with a legal regime simply because it has become dominant through use. We expose ourselves to wider societal and ethical risks when entrust private entities with decision-making powers over the rights of others in privately controlled technological domains, involving mass-scale user transactions and platform-wide decisions. We should remember that there is nothing inevitable about using EULAs as the default legal mechanism governing our interactions and behaviour online.
The articles in this issue 6.1 feed into wider concerns about giving private corporations free rein to shape our legal, cultural and technological landscape. There is more fundamental work to be done beyond the current topical debate around regulating AI.
The article by Damien Geradin and Stijn Huijts titled ‘Dark clouds gather – The development of cloud gaming, and competition agencies’ efforts to enable it on mobile app stores’ highlights the far-reaching effects of private entities acting as platform gatekeepers and the wider repercussions from the perspective of competition and anti-trust law. Alicia Dixon takes us on a legal journey through the Marvel universe in her analysis ‘Mr. Feige, I Don’t Feel So Good … Copyright Ownership, Creators’ Rights, and the Marvel Cinematic Universe’. The case study clearly highlights how the existing copyright rules favour large corporations when it comes to exploiting comic book characters that have grown in significance and value since their inception, as opposed to the individuals who created these characters (usually for very low pay) who are at a massive disadvantage when seeking to reclaim their rights. Authors Adelè Serio and Christian Ciniero delve into the changing value chain of broadcasting rights when it comes to e-sports and video game streaming in their article ‘Are streaming rights the new broadcasting rights of the 21st Century? A comparative review on the specific case of e-sport competitions’.
As many of you know already, in April we lost a close friend and a very important member of our community. Andrea Rizzi had been a stalwart supporter of the Interactive Entertainment Law Review since the beginning and his contribution has been invaluable.
We will always cherish and celebrate his memory and in that spirit, we are planning to dedicate the next issue of the journal to Andrea. Please contact us if you would like to contribute.
We hope you will enjoy the issue.
Gaetano, Yin Harn and Michaela
