Brainlord’s Petition to Change the EULA

[Brainlord Mesomorph]

An open letter to Take Two Interactive:

New York, we have a problem.

Before I get in to that, just a little bit about myself; I’ve been a professional software developer and IT consultant for over 30 years. In my career, I’ve read hundreds of EULA’s, often on behalf of my clients. I have even written three or four of them, and many more Software Development Agreements (specifically the sections covering what the software will and won’t do and what our responsibilities were if it fails). Our company lawyer once actually told me, “If you ever get tired writing software, you could always get a job writing tort.” So I believe that I am at least as capable as the average layman of interpreting a software license agreement.

Now, given that KSP is stand-alone computer game that uses no network access much less Internet access, has no online player ranking system, has no in-game online access of any kind, has no e-commerce system (virtual or otherwise) and involves absolutely no personal information of any kind, and given the broadest interpretation of the Terms of your EULA and its accompanying Privacy Policy, this is nothing less than a License Agreement for spyware.

These two paragraphs are especially troubling:

“… you consent to the information collection and usage terms set forth in this section and Licensor's Privacy Policy, including (where applicable) (i) the transfer of any personal information and other information to Licensor, its affiliates, vendors, and business partners, and to certain other third parties, such as governmental authorities, in the U.S. and other countries located outside Europe or your home country, including countries that may have lower standards of privacy protection; (ii) the public display of your data, … (iii) the sharing of your gameplay data with hardware manufacturers, platform hosts, and Licensor's marketing partners; and (iv) other uses and disclosures of your personal information or other information as specified in the above-referenced Privacy Policy, as amended from time to time….”

And from the above-referenced Privacy Policy:

“…the information we collect may include personal information such as your first and/or last name, e-mail address, phone number, photo, mailing address, geolocation, or payment information. In addition, we may collect your age, gender, date of birth, zip code, hardware configuration, console ID, software products played, survey data, purchases, IP address and the systems you have played on. We may combine the information with your personal information and across other computers or devices that you may use.“

Starting at the top; “…governmental authorities, in … other countries … that may have lower standards of privacy protection…” Excuse me? Why?! You’re a New York company. Under what circumstances are you sharing our personal information with foreign governments?

Not as surprising, although equally unacceptable is selling all our personal information to unnamed “marketing partners.” And the ridiculously overbroad  “other uses … as amended from time to time.” Taken at its broadest interpretation that means you literally can anything you want, any time you want. Please.

And while we’re on the topic of overbroad requests; you may “collect” my “photo?” It doesn’t say photos I submit to you, or photos I upload somehow, it just says photo. There are a lot of photos on my computer. Taken at its broadest interpretation this means you can crawl my hard drive looking for photos and then taking them. “…[P]ayment information… software products played, survey data, purchases…” again overbroad, it doesn’t say payments I make to you, your software products played, your survey data, or even your purchases. Taken at its broadest interpretation that means you can spy on the purchases I make from Amazon, record them, along with my payment information (and then sell that a foreign government). It’s ludicrous.

It has been argued that this a just single EULA for the entire wide array of your products, and that the clearly offensive sections simply don’t apply to us KSP players. Perhaps.

But I ask; Would you sign an agreement with your gardener that gave him access to your bank account, because in his other job, he’s an accountant? And he just uses the same contract for everybody? (“Oh, that part doesn’t apply to you, just sign here, and also I’ll need your account number.”) I don’t think so.

Now do I actually believe that Take Two Interactive is just a front for foreign mobsters installing spyware on everyone’s computer? No. Well, not completely. At least not yet.

I do think your lawyers have gone way too far, and crafted a license agreement that is way over-vague, way over-balanced in your favor, and does give you permission to install spyware. They may have done so assuming we don’t read these things or know what they mean, or that we’ll sign anything. They were wrong.

I do know that there are companies in the world that do install spyware. And there is a far fewer number of companies that have at least an allegedly legitimate reason for wanting that kind of information. Facebook, I believe has a “feature” where they will announce everything you buy for you. I have no idea why anyone would do that. And I (and I believe a lot of people) not use facebook because it is an invasion of privacy. KSP is not Facebook (thankfully), and my gardener is not my accountant.

Therefore: I do not believe I am being unreasonable, and I do believe I speak for a very large segment of the KSP community, when I say: This license agreement must be changed. Your EULA even says it can be changed at any time, so change it now.

At the very least you need to go through and add some prepositional phases, footnotes, lists of which of your products apply to which paragraphs, something. Specify which photos and purchases you are referring to, under what conditions you will give our personal information to foreign governments (?!).

Even better would be to simply make another version of the EULA in which you have removed anything that doesn’t apply to a stand-alone game like KSP. (Like the two above paragraphs, in their entirety.)

I say it must be changed because I believe not changing the EULA would be a tacit admission by Take Two that all of our worst fears are true. It would be an admission that even if the current build of KSP doesn’t contain spyware, you do intend to put it in there at some point. There is simply no other logical reason not to change this agreement. And let me say here that no reassurances from company spokesmen will do, we need this addressed in that EULA.

So please let’s fix this little dustup before it becomes a full-blown kerfuffle. Assuming you are not an evil company intent on installing spyware, just please make that clear in the EULA.

We don’t want this to turn into the Star-Wars-Pay-To-Play-Luke-Skywalker fiasco. We don’t want half the KSP community on social media screaming #KSP=Spyware! Do we? So please let just fix this.

How about this: You give us a KSP EULA that isn’t a license for spyware, and I’ll buy every last bit of DLC you ever produce. Deal? (and I think I speak for a large section of the community when I say that, too)

Sincerely ,
Brainlord Mesomorph
KSP Player and Enthusiast (from version 0.23 to 1.31, anyway)

To the Community:

If you agree with me here, please LIKE this post.

[Starman4308]

Something doesn't smell right to me. You claim to be a software developer who has read EULAs on behalf of his clients. That is definitely not professional legal advice; there's a reason why legal advice is offered only by lawyers who've been through years of training and passed the bar exam.

Regardless, get a lawyer before claiming to have definitely interpreted the EULA. I am not convinced they even legally could install spyware, nevermind that they actually would do something so egregiously foolish.

[Brainlord Mesomorph]

30 minutes ago, Starman4308 said:

Something doesn't smell right to me.

Perhaps you should clean your room.

I don't understand you point here.

First:  I only claimed to reading this at least as well as the average layman.

Second: I don't know of any company that has its attorneys going over the EULA of every app they used, on the other hand, as an IT consultant and network administrator, I would be lax in my due diligence if I didn't read the licence agreement for everything I installed (and there have been times when I had to print that out and highlight a section of it and hand it to the boss, and suggest that she take it to her lawyers).

I believe the only "definitive" reading of any contract is done by a judge, and only then if the other side doesn't appeal.

EDIT: In response to the general claim: "You're not a lawyer, so you don't know what it means."
I am, and so are you, the people they are asking to sign this agreement. They better be able to explain it to our satisfaction. Or at least I'm not signing.

Edited March 12, 2018 by Brainlord Mesomorph

[Waxing_Kibbous]

This is such a difficult thing to wrap one's head around. If you take an honest look at your internet life in general (from a US perspective here) there is no such thing as anonymity or even security- many large entities who have your info that you have no control over have been compromised already, including Steam. It seems that many mobile apps want access to folders that have nothing to do with their main function, or at least could handle it in a less skeevy way. If you don't have a facebook account they still have ways to monitor your activity. It's an ugly mess that is really hard to avoid. That being said, that's no excuse for a company to engage in shady (or broadly generic) practices or for users to accept it as the norm. It'd be refreshing to see more projects that use respecting user's privacy as a selling point. They already have plenty of info just from a user purchasing and downloading, why do they need an open door "just in case" to anything else? The obvious answer is to cover their a$$ legally in case the software has some major holes, but it still doesn't sit well.

[Starman4308]

13 minutes ago, Brainlord Mesomorph said:

Perhaps you should clean your room.

I don't understand you point here.

First:  I only claimed to reading this at least as well as the average layman.

Second: I don't know of any company that has its attorneys going over the EULA of every app they used, on the other hand, as an IT consultant and network administrator, I would be lax in my due diligence if I didn't read the licence agreement for everything I installed (and there have been times when I had to print that out and highlight a section of it and hand it to the boss, and suggest that she take it to her lawyers).

I believe the only "definitive" reading of any contract is done by a judge, and only then if the other side doesn't appeal.

Your average layman's reading is hardly definitive in the slightest, hardly good enough evidence to go off and demand mob justice based on a fear of something happening.

You have no credible evidence that they could even legally install spyware, nevermind evidence that they plan to or even consider it a viable thing to do.

Edited March 12, 2018 by Starman4308

[Kerbart]

If your intention is to get something changed, this won’t do it. The tone of the letter is too informal to take seriously, and the medium, that is hardly monitored by Squad, let alone Take Two, will not really get their attention.

If you want them to study this, I’d have the letter written by an attorney and have her (or him, I don’t want to be sexist) deliver it (or have her/him deliver it through certified mail). That will get their attention. Surely this will cost some money, but if you’re really concerned about it...

[Brainlord Mesomorph]

1 minute ago, Starman4308 said:

Your average layman's reading is hardly definitive in the slightest, hardly good enough evidence to go off and demand mob justice based on a fear of something happening.

You have no credible evidence that they could even legally install spyware, nevermind evidence that they plan to or even consider it a viable thing to do.

Wow, still not understanding you - or maybe you're not understanding me. 

IMHO (there, does that make you feel better) if you agree to that EULA you are agreeing to spyware. knock yourself out.

I don't agree.

[MinimalMinmus]

While I don't really think this will change anything, I appreciate the effort at pointing out what's wrong with the EULA.

[Brainlord Mesomorph]

Just now, Kerbart said:

If your intention is to get something changed, this won’t do it. The tone of the letter is too informal to take seriously, and the medium, that is hardly monitored by Squad, let alone Take Two, will not really get their attention.

If you want them to study this, I’d have the letter written by an attorney and have her (or him, I don’t want to be sexist) deliver it (or have her/him deliver it through certified mail). That will get their attention. Surely this will cost some money, but if you’re really concerned about it...

You want to start a GoFundMe page for the lawyer? 
I'm just trying to make my point here. Social media justice worked for the Star Wars people.

1 minute ago, MinimalMinmus said:

While I don't really think this will change anything, I appreciate the effort at pointing out what's wrong with the EULA.

It might not. 

It might only be the eulogy of why I'm not here any more.  So be it. 

That will be their admission that it IS spyware.

[Starman4308]

7 minutes ago, Brainlord Mesomorph said:

You want to start a GoFundMe page for the lawyer? 
I'm just trying to make my point here. Social media justice worked for the Star Wars people.

The issue with that Star Wars game was a clear cut issue of going way too far with microtransactions.

Here, there has been no evidence of spyware, and you don't even have a professional legal opinion to substantiate your fears. This goes so far into mob "justice" that it's almost a bad joke.

There's a reason we have courts, the principle of innocent until proven guilty, and lawyers: it's not so that the mob can crucify people.

[Brainlord Mesomorph]

1 minute ago, Starman4308 said:

: it's not so that the mob can crucify people.

What are you talking about?!!

All I'm asking for is a clarification of a license agreement. 

[Kerbart]

Just now, Brainlord Mesomorph said:

You want to start a GoFundMe page for the lawyer? 
I'm just trying to make my point here. Social media justice worked for the Star Wars people.

The Star Wars people were a significant crowd who where threatening to vote with their feet.

the challenge you will have with a go-fundme is that the majority of the players won’t care. All this is part of the course for any of the T2 games (it’s very boilerplate after all) and to me it just seems “business as usual” without any nefarious intentions. And I suspect most players see it that way.

What will work is a player revolt with no one buying the expansion pack. But unless the majority of the players feels that there are serious enough issues with the EULA to warrent that, nothing will happen. One of the reasons there’s nothing actually draconian in the EULA is because exactly that will happen, and T2 has no reason to let it happen.

Most of the stuff in the EULA is to protect the company against damaging behavior. Mods that allow access to the expansion pack without paying for it, x-rated KSP videos, those kind of things.

Will they send C&D letters to modders who have a 2-Kerbal Gemini-like capsule? No, of course not. That’d be alienating the user community that makes the game valuable to them in the first place. The value of, say, the MH Gemini capsule is not that it’s just a 2-Kerbal capsule, it’s the Squad (nearly stock) capsule. Having a mod that allows you to load a vessel that uses the MH parts with your identical (name, id, geometry) would undermine sales as its aimed at the Expansion Pack and then they will go after you. That’s what the EULA provides for them.

Yes, large publishers have done stupid things in the past. But mostly in a different context, and mostly they learned from it. I never heard of Microsoft destroying Minecraft. Yes, there’s Micropayments in it now, but you can play the game as it was always played without making a single payment.

Surely T2 will monetize KSP. With Expansion Packs, as they’re doing right now. And surely they will keep the community alive. That’s where the money is.

[Brainlord Mesomorph]

3 minutes ago, Kerbart said:

The Star Wars people were a significant crowd who where threatening to vote with their feet.

Which is what I'm suggesting,

(footsteps, door closes)

[Guest]

EULAs aren't worth the paper they're not printed on.

Ping me if they actually do add spyware, microtransactions, or DRM, or start hassling modders for no good reason. Until then, yawn.

[KSK]

Leaving the arguments about spyware to one side, I have serious objections to this paragraph:

“…the information we collect may include personal information such as your first and/or last name, e-mail address, phone number, photo, mailing address, geolocation, or payment information. In addition, we may collect your age, gender, date of birth, zip code, hardware configuration, console ID, software products played, survey data, purchases, IP address and the systems you have played on. We may combine the information with your personal information and across other computers or devices that you may use.“

1. I can see a rationale for collecting your name, address and payment information, since you'll need to hand those over in any case to buy KSP or the expansion. I could quibble about mailing address vs billing address but that's getting picky, since for most people, I imagine they're one and the same. I can see a rationale for collecting hardware configuration and console ID. The first provides them with useful information that could actually benefit the player base (hey we know that 99.9% of our players are playing KSP on a machine that can handle x, y and z graphical features - why don't we add those to the next expansion?). The second sounds like it might be useful in combating piracy. Might - I don't have a console so don't know how that works.
2. Software products played, survey data, purchases (of what?), photo (of what? My bare bottom?  My raised middle finger?), geolocation - I see no KSP related reason for collecting those. I'm sure that Take Two would love the extra data for marketing purposes but that's not an adequate reason.
3. Age - possibly relevant, although a basic 'are you old enough to play KSP based on its rating' check, would be preferable. Whether I'm 28 or 68 is frankly none of Take Two's business. Likewise gender - I can see some positive reasons for collecting that but at the same time - it's really none of Take Two's business.

But in any case: "We may combine the information with your personal information and across other computers or devices that you may use.“

No. No you may not. That's just basic stuff. Aggregating data is acceptable under some circumstances. But a 'privacy policy' that allows for combining that kind of information - and then sharing it with third parties is... well it's a policy. It certainly isn't any sort of privacy policy. 

Now, given the varied privacy legislation in different countries, it's debatable how much of this over-reaching piece of mulch would actually stand up in court. But, at the end of the day, I believe the onus should be on Take Two to use an EULA (or heck, even to have more than one EULA tailored to different jurisdictions) that is compliant with the relevant law, rather than using a ridiculously over-reaching agreement and leaving it up to their customers to either trust them (hah!) or challenge them on it, in court or otherwise.

Squad were a small company, with limited resources. Going with a boilerplate EULA was excusable if not ideal. Take Two do not have that excuse. 

[Starman4308]

11 minutes ago, Brainlord Mesomorph said:

What are you talking about?!!

All I'm asking for is a clarification of a license agreement. 

You're writing a petition damaging Take Two's reputation without any real evidence, stirring up hysteria based solely on fear, asking for a clarification they cannot provide due to conflicts of interest, and referring to "social media justice".

Pray tell, how does this not sound like mob justice? Get. A. Lawyer. First.

[Brainlord Mesomorph]

6 minutes ago, Starman4308 said:

You're writing a petition damaging Take Two's reputation without any real evidence, stirring up hysteria based solely on fear, asking for a clarification they cannot provide due to conflicts of interest, and referring to "social media justice".

ABSOLUTELY NOT!

I have not damaged anyone's reputation at all. 

and "a clarification they cannot provide due to conflicts of interest" WHAT?  There are"conflicts of interest" in assuring us that this isn't spyware? 

Hmmmm

Edited March 12, 2018 by Brainlord Mesomorph

[Starman4308]

Just now, Brainlord Mesomorph said:

ABSOLUTELY NOT!

I have not damaged anyone's reputation at all. 

and "a clarification they cannot provide due to conflicts of interest" WHAT?  There is "conflicts of interest" in assuring us that this isn't spyware? 

Hmmmm

Any statement attempting to clarify their EULA is formal legal advice, and seeing as how they're the other party in the contract, that's a conflict of interest.

[KSK]

21 minutes ago, Kerbart said:

Most of the stuff in the EULA is to protect the company against damaging behavior. Mods that allow access to the expansion pack without paying for it, x-rated KSP videos, those kind of things.

Possibly. But an awful lot of the privacy policy and associated parts of the EULA that @Brainlord Mesomorph is concerned about doesn't appear to have anything to do with protecting Take Two against damaging behavior. 

[GrouchyDevotee]

2 hours ago, Brainlord Mesomorph said:

If you agree with me here, please LIKE this post.

I play KSP on console, I'd rather not have spy-ware on my console or computer, legal or otherwise. Why is such a great game constantly in so much turmoil.

[KSK]

48 minutes ago, GrouchyDevotee said:

I play KSP on console, I'd rather not have spy-ware on my console or computer, legal or otherwise. Why is such a great game constantly in so much turmoil.

I'll take a swing at this one.

Because, for the size of it's community - and certainly the part of that community that hangs out on these forums - KSP has unusually large number of players contributing content of various kinds, whether that be mods, videos, fan art or whatever. As a result, the community tends to feel more personally engaged with KSP development. Therefore it's no great surprise to me, when the community actually pays attention to and comments on any updates and news about that development.

By the same token, it's no surprise to me that elements of the community get irate about what they see as especially boneheaded decisions by Squad or Take Two. And it's really no surprise that ignoring those irate community members doesn't make them go away - rightly or wrongly, they feel invested in the game and expect its  publisher and developers to be at least somewhat invested in them as a community rather than a collection of customers.

Speaking personally, with these new terms and conditions, I feel that  Take Two are not remotely invested in the community and just expect us to be a good little flock of geese that take whatever we're given with gratitude and keep laying those golden eggs of free KSP content without complaining. 

 

[LordFerret]

I agree with @Brainlord Mesomorphand @KSK's point. To put it plainly, this EULA is outright devious and manipulative. Not happening. I am not your marketing fodder to have and play with.

I have however clicked on the 'Agree' button to access these forums, access the Wiki, and to download the update from the store. That's all I'm going to click on and 'Agree' with though, just enough to obtain updates to my stock install. Now, with that in mind...

There is a solution here; It's called PULL THE PLUG. That is exactly what I'm going to do from here on in. No aspect of this software will be allowed access to the web what-so-ever while it executes. I'll play my install on an isolated PC with no web access at all if necessary; I don't need anything (mods, CKAN, etc) checking for updates for me, I'm perfectly capable of doing that myself. And when it comes to the point where the game will not play without web access, then it will be time for me to move on... and I will.

[KSK]

3 hours ago, Starman4308 said:

You're writing a petition damaging Take Two's reputation without any real evidence, stirring up hysteria based solely on fear, asking for a clarification they cannot provide due to conflicts of interest, and referring to "social media justice".

Pray tell, how does this not sound like mob justice? Get. A. Lawyer. First.

Well the simple answer to that is for Take Two to not put out a wall of legalese that's open to misinterpretation and doubt and then stay resolutely silent when people get concerned about it. Instead, they could pull their collective thumbs out and craft a reasonable agreement that's more suitable to a game like KSP which has grown up as an early-access game with a heavy emphasis on community involvement. But instead they throw their standard 'we reserve the rights to own everything and have total control' boilerplate at us.

Or in other words - don't pull a dork move, refuse to explain said dork move  and then act surprised when people call you on it, reasonably or unreasonably.

And yeah - about explaining themselves. I'm curious why you think that Take Two would conflict themselves by providing clarification on their own damned agreement. Because I'm really not seeing how that works. If you are right (which is possible I suppose), then you end up with some ridiculous situations:

Party A:  This is our draft contract - please read it over and sign it if you're happy.
Party B:  Umm, it's mostly OK but we're not sure about clauses 4.1, 5.4 and 7.8. We think we could make them work but could you give us some background, so we can see where you're coming from and why you need them?
Party A:  Nope - can't do that because we'd be giving you legal advice which would a conflict of interest on our part.
Party B:  ...

All I can say is that I've been involved in plenty of contract negotiations alongside our legal team and I can safely say I've never seen anything like the above. I have seen plenty of examples of Party B stonewalling with a 'these are our standard terms' line, without further explanation (which isn't terribly helpful) but I've never seen them claim that telling us anything else would be a conflict of interest.

Oh - and to the folks who aren't really fussed about the new terms and conditions because they don't believe it's in Take Two's interest to enforce the more draconian ones? Well you might be right. Or you might not. Now, I could be missing something but since Take Two bought out the rights to KSP, I haven't seen anything from them about the game. I have no idea what their intentions are, how they feel about the community or anything. In fact the sole interaction I've had with them, is the introduction of these egregiously lopsided terms and conditions. I have no basis for trusting them or for assuming that I should take the EULA and privacy policy at anything other than face value. 

And yes, for what it's worth, I agree that they would be stupid to enforce various terms of their EULA. But it would hardly be the first time that a large company has made a stupid decision in the name of greed or short term gain.

Edited March 12, 2018 by KSK

[Brainlord Mesomorph]

10 minutes ago, KSK said:

Well the simple answer to that is for Take Two to not put out a wall of legalese that's open to misinterpretation and doubt and then stay resolutely silent when people get concerned about it.

hmm, that sounds like it might be the behavior of foreign mobsters. 

 

11 minutes ago, KSK said:

Party A:  This is our draft contract - please read it over and sign it if you're happy.
Party B:  Umm, it's mostly OK but we're not sure about clauses 4.1, 5.4 and 7.8. We think we could make them work but could you give us some background, so we can see where you're coming from and why you need them?
Party A:  Nope - can't do that because we'd be giving you legal advice which would a conflict of interest on our part.
Party B:  ...

Yeah, I don't think that guy knows what a conflict-of-interest means ( I was trying to stay out of that)

[Gorman]

I don't agree with much of what you (the OP) is saying, but have you emailed that open letter to T2? Or are you just having a rant on this forum and enjoying some interaction with forum members. Because if you are just posting that on this forum only and then hoping a T2 lawyer is going to reply on this thread, then I don't know what to tell you.