Forced Arbitration Agreement - What is it? Why? Opt-Out Letter Template

[LordFerret]

On 3/13/2019 at 7:46 PM, Cheif Operations Director said:

Oh great apparently sony may be in talks to but Take Two, when will this ever end!

Not happening.

[Cheif Operations Director]

4 hours ago, LordFerret said:

Not happening.

Thank goodness 

[Superfluous J]

Here's a simple way to determine how this will affect you.

Remember back to all the legal battles you've had with Squad and Take Two in the past. How you were treated in the courts and how much money you spent. How they had the upper hand and you didn't have a leg to stand on because they were a big company that could hire lawyers and you were just some person with no clout and without gobs of money.

Then realize that now you'll instead be going to arbitration with Take Two. You'll be treated about the same and have to spend roughly the same amount of money. They will have the upper hand and you won't have a leg to stand on because they're a big company that can hire lawyers and you're just some person with no clout and without gobs of money.

 

[Space Kadet]

On 3/13/2019 at 10:05 PM, Fraktal said:

Because MUH KONSTITUTIONAL RIGHTS.

Ahem. That particular example doesn't work because the EU would tear them a new one if they collected and stored data about you without your consent, EULA or no EULA.

Actually unity already dose this. And yes its illegal. Because you have to opt out afterwards. So yes under EU law at this very moment KSP is classed as spyware.

On 3/15/2019 at 10:18 PM, 5thHorseman said:

Here's a simple way to determine how this will affect you.

Remember back to all the legal battles you've had with Squad and Take Two in the past. How you were treated in the courts and how much money you spent. How they had the upper hand and you didn't have a leg to stand on because they were a big company that could hire lawyers and you were just some person with no clout and without gobs of money.

Then realize that now you'll instead be going to arbitration with Take Two. You'll be treated about the same and have to spend roughly the same amount of money. They will have the upper hand and you won't have a leg to stand on because they're a big company that can hire lawyers and you're just some person with no clout and without gobs of money.

 

Thats not only incorrect but very nieve. Your basing this on the fact take 2 has nvere bullied players, or broken the law before? There are several judgements against them for take 2, they have bullied and threatened users and mod makers. And RIGHT NOW unity that kerbal is built in automatically harvests machine data without disclosing what its taking and if you want to opt out you have to goto the unity website, making it illegal in europe! the only advantage is the EULA isint legal in europe either, but still its taking system data without your permission in a way that could be exploited to harvest other data. And the arbratation clause for the US dosent mean your on a one to one bases, your still against the same legal team, but now because its a sealed arbretration they can keep all details secret. And stop eople from filing class actions. This isint helping your rights, in america its literally stamping on your first ammendment. 

[Superfluous J]

21 hours ago, Space Kadet said:

Thats not only incorrect but very nieve. Your basing this on the fact take 2 has nvere bullied players, or broken the law before?

No. That they've never done it to me.

I (and I suspect you) can't really speak with any authority on what Take Two has done with others in the past. Let's assume for the sake of argument though that you and I don't agree on the idea that every time a company files a lawsuit against a person, that person is completely without blame and the company is evil and doing it just to make everybody sad.

Edited March 17, 2019 by 5thHorseman

[I_Killed_Jeb]

On 3/15/2019 at 1:18 PM, 5thHorseman said:

Here's a simple way to determine how this will affect you.

Remember back to all the legal battles you've had with Squad and Take Two in the past. How you were treated in the courts and how much money you spent. How they had the upper hand and you didn't have a leg to stand on because they were a big company that could hire lawyers and you were just some person with no clout and without gobs of money.

Then realize that now you'll instead be going to arbitration with Take Two. You'll be treated about the same and have to spend roughly the same amount of money. They will have the upper hand and you won't have a leg to stand on because they're a big company that can hire lawyers and you're just some person with no clout and without gobs of money.

 

this is a bit disingenuous way of looking at it, I think the simpler and more intellectually honest determination is - do you think you may want to participate in a class-action lawsuit against T2 at any point in the infinite future? In my life I've been automatically part of several gaming related class action suits from which I've directly benefited - two against Sony (PSN, PS3) and a couple others that are now old enough that I don't recall (something about privacy I think). While I may not have derived a huge benefit, I did a little, and more importantly the "big guys" were forced to reckon with their misdeeds. To me that's enough to opt out of arbitration. YMMV of course

[Superfluous J]

2 hours ago, I_Killed_Jeb said:

this is a bit disingenuous way of looking at it, I think the simpler and more intellectually honest determination is - do you think you may want to participate in a class-action lawsuit against T2 at any point in the infinite future? In my life I've been automatically part of several gaming related class action suits from which I've directly benefited - two against Sony (PSN, PS3) and a couple others that are now old enough that I don't recall (something about privacy I think). While I may not have derived a huge benefit, I did a little, and more importantly the "big guys" were forced to reckon with their misdeeds. To me that's enough to opt out of arbitration. YMMV of course

I can't say. I've been offered one class action lawsuit. People were suing Netflix for having late fees, because Netflix was making you pay the monthly fee that you agreed to pay for rentals, even if you only rented one dvd and never returned it. I'll let you decide for yourself who you think was taking advantage of whom but I opted to not join the lawsuit. I don't know how it went for those who did.

If something similar came up with Take Two I'd weigh the merits in a similar fashion.

But to be frankly honest no. I don't expect to ever feel the need to sue Take Two or any other company.

[Sirad]

So what's up with all the Buyers that are not here present in the Forum ?

Just like 'the plans were available for viewing at alpha centauri for several years, noone complained, now your Planet gets destroyed'

This may not come into validity in EU. Maybe in Zimbabwe ? North Corea ?

Edited March 18, 2019 by Sirad

[Lisias]

On 3/15/2019 at 5:18 PM, 5thHorseman said:

Then realize that now you'll instead be going to arbitration with Take Two. You'll be treated about the same and have to spend roughly the same amount of money. They will have the upper hand and you won't have a leg to stand on because they're a big company that can hire lawyers and you're just some person with no clout and without gobs of money.

There's a difference. When you go to Court, the trial is public information and you can pressure them on the Press.

Arbitration is private affairs, and so can bind you to silence:

Quote

So what is a client, and its counsel, to do to make it more certain that disputes covered by arbitration provisions are kept confidential?  It’s simple; make confidentiality in arbitration an explicit requirement in the agreement containing the arbitration agreement. 

source: https://www.lexology.com/library/detail.aspx?g=57a1e87c-bb91-4885-bd74-18de7f1a98ee

For NON-USA customers, your mileage may vary. International customer's rights are subject to the New York Convention, a generalist set of rules that some (most) countries agreed to abide in order to allow their legal systems to work overseas. Even if you live on Europe, you need to check how the New York Convention affects your rights.

The countries that are member of the party can be found here, and I urge any European that thinks this doesn't apply to you to check it out. You will see that very few countries are not signatories of the New York Convention.(hint: North Korea, Iraq…). In time, China is a signatory of the Convention.

 

1 hour ago, Sirad said:

This may not come into validity in EU. Maybe in Zimbabwe ? North Corea ?

It's exactly the other way around. I urge you people to give some credit to TTI's lawyers - they are not dumb arses. They know their trade.

 

2 hours ago, 5thHorseman said:

But to be frankly honest no. I don't expect to ever feel the need to sue Take Two or any other company.

Companies are not a person. It's a opaque collection of people, and when you deal with a Company, you are dealing with all that people at once - one, only one sociopath inside there can use the power of the company against you (directly or indirectly), and once the sheet hits the turbo-fan, the Company will do what every Company is expected to do: to handle the situation minimizing the costs and maximizing the gains.

In a nutshell: the Company itself may not condone license violations on their products (i.e, "stealing other people's open source works"), but once someone there tries the stunt, the Company will try to minimize the damages by forcing the copyright owner to a (in)decent agreement with them, including silence about the stunt. The guy that did the stunt? He can be fired, or he can be promoted - who knows? It's a Company, you don't know the people calling the shots there.

 

— — — Example — — — 

From the newyorkconvention.org site, I found information about how Brazil handles this:

Quote

Art 4o, § 2o - Nos contratos de adesão, a cláusula compromissória só terá eficácia se o aderente tomar a iniciativa de instituir a arbitragem ou concordar, expressamente, com a sua instituição, desde que por escrito em documento anexo ou em negrito, com a assinatura ou visto especialmente para essa cláusula.

Google Translating: "In the adhesion contracts, the arbitration clause will only be effective if the adherent takes the initiative to establish the arbitration or expressly agrees with its institution, provided that in writing in an attached document or in bold, signed or seen especially for that clause."

"Adhesion contracts" is how we call "subscription agreements" (it's the best translation I found). EULAs are "adhesion contracts". Here at Brazil, agreements as EULAs are Contracts in fact - but we have a whole legislation about how to handle Contracts, and so such agreements are subject to the local law.

Of course, a deep pocket American Company can overcome this - but at least, not in privacy - so we alway can get into the Press for some P/R trouble.

In a nutshell: Brazilian's Law saved my cheeks [I love how Forum replace some terms! ]  on this, and you, non-American, must do the same research and check yourself about your country rules on the subject. Don't rely on common sense. Most of you, guys, are living under the Rule of the Civil Law, you must find a Law on the subject

Edited March 18, 2019 by Lisias
MOAR INFO

[Superfluous J]

29 minutes ago, Lisias said:

Companies are not a person. It's a opaque collection of people, and when you deal with a Company, you are dealing with all that people at once - one, only one sociopath inside there can use the power of the company against you (directly or indirectly), and once the sheet hits the turbo-fan, the Company will do what every Company is expected to do: to handle the situation minimizing the costs and maximizing the gains.

If Take Two takes all the KSP related stuff I've done and finds a way to make money with it, good for them.

I know for sure I never did.

[Lisias]

35 minutes ago, 5thHorseman said:

If Take Two takes all the KSP related stuff I've done and finds a way to make money with it, good for them.

Even by smashing reputations and unethically (or plain illegally) undermining the competition? Read that agreement again, and tell me where it's saying that if an employee uses (or just leaks by negligence) your info illegally against you, they waive the Arbitration clausule.

Do you remember that huge Credit Card leak from Sony? Under this agreement, you wouldn't be allowed even to talk about.

— — — — — 

Let me try to explain it better.

In a nutshell: I'm not talking about what they intend to do (they have some problems that need to be dealt). I'm talking about what they are doing instead (waving their problems to be handled by us).

 

Edited March 18, 2019 by Lisias
in a nutshell

[Space Kadet]

19 hours ago, 5thHorseman said:

No. That they've never done it to me.

I (and I suspect you) can't really speak with any authority on what Take Two has done with others in the past. Let's assume for the sake of argument though that you and I don't agree on the idea that every time a company files a lawsuit against a person, that person is completely without blame and the company is evil and doing it just to make everybody sad.

Ok i grt my sarcasm might be hard to read through the internet so let me explain. Take two has done all that, they treatened mod makers, in some cases with visits to their house, even when they had no legal footing, the have sued players for bad reviews under the terms of this very eula template, and once more, this eula is not legal. Its copy pasted into every game to screw you financially if you ever want to sue them, e.g. If they ever take your credit card details without your permission and put them on the internet for someone to steal.... and again this has happened. But under this agreement you wouldent be allowed to tell anyone. That literally steps on your first amendment fight to free speach in the US.

i can speak with authority on these as they are well documented. As for agreeing that a company is evil. Companies are people, some good, some bad, take 2 has demonstraited it cant be trusted, so they dont get the benifit of the doubt. 

And finally that previous point about 'they havent done it yet so they never will', thats the nieve part. Everything hasent hapened untill it dose! If your example was true we wouldent need laws because the universe wouldent exist, as if nothing new ever happened or nothing ever changed then nothing new would ever exist.

now i know im hammering this pretty hard but its because people like you are the problem. Take 2 is literally doing somthing illeagal curtailing your rights AND YOUR DEFENDING THEM! If i sold you a computer then 2 years later rewrote the selling agreement without your knowledge to say that it allowed me to watch you and your family through your webcam, that would be disgusting, if it also included a abritration bind that would be insane, but thats whats literally going on here, the EULA allowed the collection of data. That could include webcam data and microphone recordings in the form of data like the hauwei phones have been found to be doing, using the same template! I know seperate company, but same data usage clause in their eula! 

[Ratwerke_Actual]

Hate to drag this OT, but I keep seeing 1st Amendment brought up.

It says Congress can't restrict your free speech rights.

It says nothing about a private contract or EULA.

[FullMetalMachinist]

6 hours ago, 5thHorseman said:

If something similar came up with Take Two I'd weigh the merits in a similar fashion.

That's just it, though. By being forced into arbitration, you no longer have that choice available to you. You could never be part of a class action lawsuit, even if you decided there was merit to it and wanted to.

[Lisias]

1 hour ago, Ratwerke_Actual said:

Hate to drag this OT, but I keep seeing 1st Amendment brought up.

It says Congress can't restrict your free speech rights.

It says nothing about a private contract or EULA.

As far as I understand, no one has the right to wave your rights but yourself [and a Court of Law, under certain circumstances].

At least on USA, you are free to do whatever you want as long there's no law forbidding it. So you can talk about (almost) whatever you want, as there're (just a few) laws restricting what you can say without reprimand.

This means that you can agree to wave such a right, if you want - as there's no law telling you can't. (You can't waive your right to life, however - there is a law forbidding it).

It's not the EULA that it's taking your rights. It's you that are waiving them. We can discuss about the ways they manage to get such agreement, but once such agreement is valid, that's it.

Edited March 18, 2019 by Lisias
addendum

[Cheif Operations Director]

I'm simpily not accepting the EULA. I have not been asked to accept it here on thus forum if they ask me I'm not accepting it. It's not worth my time, rights, or money so I can play KSP. Plus they have a competitor on the market now so as much as it pains to me say it in pretty much done with KSP. 

[Superfluous J]

We're just talking past each other so I'll bow out.

[I_Killed_Jeb]

20 hours ago, 5thHorseman said:

I can't say. I've been offered one class action lawsuit. People were suing Netflix for having late fees, because Netflix was making you pay the monthly fee that you agreed to pay for rentals, even if you only rented one dvd and never returned it. I'll let you decide for yourself who you think was taking advantage of whom but I opted to not join the lawsuit. I don't know how it went for those who did.

If something similar came up with Take Two I'd weigh the merits in a similar fashion.

But to be frankly honest no. I don't expect to ever feel the need to sue Take Two or any other company.

That's of course your prerogative and another perfectly reasonable way to go about things. But I think you'll agree that the situation isn't quite how you initially made it out to be.

[Gavin786]

This topic has upset me a little bit - as I intend to create some mods for KSP.

This is my first post on this forum, so you can see that I do feel strongly about this issue.

Firstly, I have now looked up the consumer legislation and it appears - that in Europe at least - this forced arbitration clause is not enforceable in law.  http://arbitrationblog.practicallaw.com/consumer-class-arbitration-in-the-uk-where-we-are-and-what-next/ .  There is strong legislation protecting consumers from this type of thing.

Secondly, to opt out should not necessitate sending a confirmed letter to Take Two HQ in New York.  This has been said ONLY to discourage people from doing so by creating a barrier of hassle and expense in order to opt out.  Courts abide by the concept of 'fairness'.  If you have signed a digital agreement by clicking an 'Ok' button then it is only fair that you can opt out of an optional clause digitally also.  An email will be sufficient(I am not a lawyer but have read a lot about the law, so pls dont take this as gospel) to opt out.  As it is only fair as the agreement has been made digitally.  One could also post a formal opt-out statement on this forum(as it is owned by Take Two), it will likely be considered a valid opt-out by most courts(if an opt out is needed see point 1 above).

Thirdly, I strongly recommend, especially for everyone who has(or might in the future) create mods for KSP to send such an email, or otherwise post on the forum or otherwise communicate with Take Two to opt out of the clause.  It might even be a good idea for someone to create a thread for people to opt out.  If you are a serious mod creator and intend to somehow profit from your hard work, I would(just to be safe) send the letter also, but I strongly recommend everyone to send the email or post in forum that they are opting out if it is too much trouble to send the letter.  Odds are very high a court will accept this as a valid mode of opting out.

Fourthly, it is my opinion that the forced arbitration clause is specificallly aimed at mod creators to take away their rights.  It makes it very hard for them(being mostly private individuals) to get any justice if Take Two breaks the terms of their license agreement or uses their work without permission.  Which I strongly suspect is in the pipeline for some features only offered by mods to be made into stock features - that is probably the driving rationale behind this drive by Take Two doing this.  The law is actually on Take Two' side - for as long as they create a feature from scratch(which they will; they wont want to use other's code I suspect) - they can make a feature identical to a mod without it's violating copyright - there are a lot of test cases about this.  Mod creator might not see things that way however.

I hope this(as my first post) and controversial and probably will annoy Take Two that it does not get deleted!  Thank you mods if people do see this!

Sigining Off,

Gavin786

 

[Jestersage]

23 hours ago, Cheif Operations Director said:

 Plus they have a competitor on the market now so as much as it pains to me say it in pretty much done with KSP. 

Simple Rockets?

[Cheif Operations Director]

1 hour ago, Jestersage said:

Simple Rockets?

They are a competitor so they will not be named however, draw your own conclusions

[Plusck]

Haha, love the idea of forced "arbitration" for forum users. Would I ever accept it? No. Except maybe in China, since China is basically the opposite to everywhere else as far as arbitration is concerned (at least it used to be, basically the opposite of the sort of private arrangement that arbitration is in the west).

Not that I'm surprised. It sounds suspiciously similar to the standard NDA that TTI imposes on beta testers. I had to refuse their outrageous demands (arbitration, ownership of every passing thought I might have during the beta-testing period), so I never got to beta test (Not that they actually accepted the modified NDA I sent them, so no I am not bound by it at all... and no, they can't sign it now and claim I'm bound by it: that would be pure fraud).

So I feel a bit sorry for all you US users, since you aren't protected by the sort of laws that absolutely prohibit this sort of thing in Europe. I was intrigued to see someone say that TTI's lawyers must be good and wouldn't impose something on its users that would be unenforceable. I have to say that that is a very optimistic view; I'd suspect instead that the lawyers who decided it would be a good idea to draft this sort of mumbo-jumbo were more of the school of thought that says you try to impose endless insane terms because at the end of the day, some of them might stick, and that's a positive result. If it can work in 5% of cases, that's still 5% more than if you didn't try. 5% of utterly undeserved benefits is always better than 0.

Still, I'm a bit sad to see where we are now. I first came here and tested the demo because of XKCD. I bought the game because of that certain esprit. I've contributed to the forums and played every version because of it. And now I'm thinking I might just stop checking the forums at all, at all, because I don't want to seem to support money-grabbing, idea-grabbing, jurisdiction-grabbing insanity.

[klesh]

On 3/19/2019 at 2:03 PM, Gavin786 said:

*snip*

 

Welcome to the forums, Gavin.

Unfortunately, according to the EULA any user-created content becomes the property of Take Two Interactive the moment you share it anywhere, supposedly in exchange for use of the software.

 

Sure, most of this probably wont happen. But in a small way it has in fact happened to me with this very game and there is nothing I can do about it because of the EULA. 

C'est la vie, and Caveat Modifier!

[Gavin786]

1 hour ago, klesh said:

 

Welcome to the forums, Gavin.

Unfortunately, according to the EULA any user-created content becomes the property of Take Two Interactive the moment you share it anywhere, supposedly in exchange for use of the software.

 

Sure, most of this probably wont happen. But in a small way it has in fact happened to me with this very game and there is nothing I can do about it because of the EULA. 

C'est la vie, and Caveat Modifier!

Thanks Klesh,

I just read the terms of the agreement re:user created content.

It seems pretty explicit about the meaning of what that content is: screenshots, videos, etc that are created by using the software.  Basically anything that is created by use of the software(in theory) belongs to take two.  Really this game borders on being an engineering tool especially if certain mods are brought into play.  If you for example designed a completely new type of jet engine(for use in the real world) then used KSP to create and test that would it be then owned by Take Two?  I think not.  Proportionality and fairness come into play also.  POSSIBILY they would have the right to use the design in the game.  Definitely they would have no right to use it in the real world especially if it were patented and kept secret from Take Two(or reasonably was believed to be) until the patent was granted.  It is actually an interesting area of discussion.  One of the purposes of this clause is to prevent people from designing a ship, putting it on YouTube then suing whoever creates a copy or derivation of it.  That benefits us all.  And it is right that this clause exists to make sure we are all protected from such nonsense.  There is a line I think between using KSP as a tool and using it as a game; you can create something in KSP in a fraction of the time it would take in SolidWorks or such then get a pretty accurate simulation if it would work or not.  If you then put it on YouTube you cant then cry foul when others' use it.  I think the dividing line really should be if one makes the design public.

There have been some amazing creations in this game that have gone well beyond the initial intent of the developers.  I just saw stock propellers today.  Wow.  There may very well come a day when the above clause needs to be tested.

When it comes to Mods.  Mods are not created by the use of the software.  They are 3rd party tools which interact with the software.  Mods are not covered by this section of the agreement, only works derived from the use of the software are covered by the section beginning "USER CREATED CONTENT".  Mods are not derived from use of the software, therefore they are not the property of Take Two(according to my understanding of this clause anyway).  Mods are created by 3rd party tools then linked with libraries(possibly supplied and being part of the software).  I have not created my first mod yet so I dont know the full technical details I am just looking into things right now.  If Squad implemented a programming language into the game and the mod was then created by using that language it could then be reasonably argued the mod belongs to Take Two under the 'USER CREATED CONTENT' clause.  If you create your mod in C++ the mod was created by the compiler and not by KSP.  And every compiler license gives you the right over your own work created by the compiler.

And all of this is theoretical stuff.  Most mod creators do it out of love and have other stable sources of income that is their 'real life'.  In practice most mod creators are delighted when their ideas become 'canonized' and integrated into the main software.

Please remember I am not a lawyer I have just spent a lot of time reading about law.  Do not take anything I say as legal advice and even if it were good advice it varies from jurisdiction to jurisdiction.  Especially a lot of weird things like how copyright is intepreted varies from the USA to EU.  So please dont bet your life savings or a year of your life on my words!

Gavin786

 

Edited March 20, 2019 by Gavin786

[Cheif Operations Director]

On ‎3‎/‎19‎/‎2019 at 4:43 PM, Plusck said:

Haha, love the idea of forced "arbitration" for forum users. Would I ever accept it? No. Except maybe in China, since China is basically the opposite to everywhere else as far as arbitration is concerned (at least it used to be, basically the opposite of the sort of private arrangement that arbitration is in the west). 

Not that I'm surprised. It sounds suspiciously similar to the standard NDA that TTI imposes on beta testers. I had to refuse their outrageous demands (arbitration, ownership of every passing thought I might have during the beta-testing period), so I never got to beta test (Not that they actually accepted the modified NDA I sent them, so no I am not bound by it at all... and no, they can't sign it now and claim I'm bound by it: that would be pure fraud).

So I feel a bit sorry for all you US users, since you aren't protected by the sort of laws that absolutely prohibit this sort of thing in Europe. I was intrigued to see someone say that TTI's lawyers must be good and wouldn't impose something on its users that would be unenforceable. I have to say that that is a very optimistic view; I'd suspect instead that the lawyers who decided it would be a good idea to draft this sort of mumbo-jumbo were more of the school of thought that says you try to impose endless insane terms because at the end of the day, some of them might stick, and that's a positive result. If it can work in 5% of cases, that's still 5% more than if you didn't try. 5% of utterly undeserved benefits is always better than 0.

Still, I'm a bit sad to see where we are now. I first came here and tested the demo because of XKCD. I bought the game because of that certain esprit. I've contributed to the forums and played every version because of it. And now I'm thinking I might just stop checking the forums at all, at all, because I don't want to seem to support money-grabbing, idea-grabbing, jurisdiction-grabbing insanity.

I can't play KSP because I declined the new eula. I just want access to my old game on the old EULA. They will let me play if I accept of course. Either way I agree that their lawyers are most likely for the less refined but legal jargon types based on the EULA. This is what drives me crazy about big companies, their ego is so big! I bought a product and a service. The product was the game and the service was updates in exchange for accepting the EULA. I'm entitled to the raw game without updates!

 

4 hours ago, klesh said:

 

Welcome to the forums, Gavin.

Unfortunately, according to the EULA any user-created content becomes the property of Take Two Interactive the moment you share it anywhere, supposedly in exchange for use of the software.

 

Sure, most of this probably wont happen. But in a small way it has in fact happened to me with this very game and there is nothing I can do about it because of the EULA. 

C'est la vie, and Caveat Modifier!

 

It is insanity

Edited March 21, 2019 by Cheif Operations Director