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

[cfds]

On 3/31/2019 at 9:09 PM, jwenting said:

Not shady at all, really. Email isn't accepted as a legally binding document in many jurisdictions.

Fun fact: Neither is clicking "Ok" on an EULA screen...

[Lisias]

3 hours ago, MaxPeck said:

All your mods are belong to Squad.  While they might be individual works to you, they are dependent upon KSP to run, which makes them derivative.  Squad/T2 are pretty clear about this.  If you make an excel spreadsheet to calculate dV, that’s yours. If you write a cfg or dll to do it in game, it’s theirs. That’s why I laugh at all the licensing drama on here. All mod licenses are ARR Squad/T2 by default, as they fall under the KSP ARR license as derivative works.  

No. They are claiming it. If it sticks, good for them. If it doesn't, there're nothing to lose.

I can't tell about USA, but on many countries (including mine) the term Intelectual Property has it name for a reason: it's a PROPERTY,  and cannot be taken from me without due process or my explicit and formal agreement. 

3 hours ago, MaxPeck said:

The EULA is unenforceable everywhere. […]

Parts of it are, at least on my country. They are considered "adhesion contracts" (a contract that you implicitly accept by hiring a mass service, as phone or cable TV). We have some trouble here about abuses on this, but being the thing a Legal Contract, makes them governed by the local Contracts legislation, what sometimes ends being beneficial for customers. 

Your mileage may vary, as usual.

Edited April 2, 2019 by Lisias
Hit "Save" too soon.

[MaxPeck]

38 minutes ago, Lisias said:

They are considered "adhesion contracts" (a contract that you implicitly accept by hiring a mass service, as phone or cable TV). We have some trouble here about abuses on this, but being the thing a Legal Contract, makes them governed by the local Contracts legislation, what sometimes ends being beneficial for customers

And they would be enforceable if the contract alteration had been sent to Johnny Gameowner.  As it is, the only notice most people know of is via the forum, and you have no way to prove I’ve seen it.  You think I used my real name and PII when I registered for the forum?  Not a chance.  Squad took the lazy way out and has not done their due diligence in informing me that the terms have changed, and while MaxPeck might have seen them, I have no idea who that is, and neither does Squad/T2.  They have my real contact info via the Squad store, but I’ve seen nothing in the mail informing me of any EULA changes.  Prove otherwise.  

[jwenting]

2 hours ago, cfds said:

Fun fact: Neither is clicking "Ok" on an EULA screen...

That'd depend on the exact wording.

It's not binding if you can't read the EULA before agreeing with it in many jurisdictions, on the grounds that you can't be bound by a contract you've not had an opportunity to read. Then again, "you have to vote for it so you can know what's in it" is now a concept many find quite appropriate for even parliamentary votes on new laws...

[Lisias]

5 hours ago, MaxPeck said:

And they would be enforceable if the contract alteration had been sent to Johnny Gameowner.  As it is, the only notice most people know of is via the forum, and you have no way to prove I’ve seen it. […]

No. It's not how "Adhesion Contracts" works here. It may be that way on your country, but it's not on mine. We are expected to read EULAs, as they are enforceable (under limitations) as any other contract here. I don't need to accept the new EULA terms, but by doing that they don't have to service me with the new version of the Software. Previous versions keeps being governed by the latest EULA I accepted, this they can't change no matter what.

I don't have any reason to doubt your word, you should know how things works on your country. But it's not this way in every country.

[MaxPeck]

29 minutes ago, Lisias said:

No. It's not how "Adhesion Contracts" works here. It may be that way on your country, but it's not on mine. We are expected to read EULAs, as they are enforceable (under limitations) as any other contract here. I don't need to accept the new EULA terms, but by doing that they don't have to service me with the new version of the Software. Previous versions keeps being governed by the latest EULA I accepted, this they can't change no matter what.

I don't have any reason to doubt your word, you should know how things works on your country. But it's not this way in every country.

What is to stop them from writing in their contract that by not opting out by some arbitrary date they now own the rights your computer, and then never notify you?  They nail a copy to a tree outside of their headquarters, making it publicly accessible. So they start using your pc as a support server for their company, because they wrote it somewhere and you’re bound by said “adhesion”?  Unless you live in the most one-sides draconian of dictatorships, I cannot imagine unilateral contract alterations would hold up. 

[Lisias]

4 hours ago, MaxPeck said:

What is to stop them from writing in their contract that by not opting out by some arbitrary date they now own the rights your computer, and then never notify you?  

The Law.

I live on the rule of the Civil Law, were you are limited by what the Law says. I have the Freedom of Movement because my country has a Law saying I have it.

People living under the Rule of the Common Law have this Freedom because there are not a Law waying otherwise.

Same thing about Contracts. There're specific rules on my country telling how a "Adhesion Contract" must get my agreement in order to be valid.

My first payment (or not requesting my money back in a period of time) is implicit agreement of the Contract. Changes on the Contract for a ongoing service must be EXPLICITLY accept by me, no exceptions.

(and there are legal restrictions about what an Adhesion Contracts can govern, some things are only enforceable under a regular Contract - so, no. I can't implicitly donor my guts to a sausage manufacturer ) 

 

[MaxPeck]

7 hours ago, Lisias said:

Changes on the Contract for a ongoing service must be EXPLICITLY accept by me, no exceptions.

I think we’re actually tangentially agreeing on this, so I’ll just leave it at that. 

[Lisias]

15 minutes ago, MaxPeck said:

I think we’re actually tangentially agreeing on this, so I’ll just leave it at that. 

We are probably banging our heads against the Wall of Legalese.

That Civil Law versus Common Law stunt tend to invert the way you talk things in order to reach the same goal.

In Common Law, you can do whatever you want, as long there're no Law saying you can't. On Civil Law, I can do whatever I want, as long there's a Law saying I can.

(your mileage may vary,  but the principles are more or less this way)

The mind-set shapes and limit the way we think.

[Space Kadet]

On 4/2/2019 at 4:01 PM, MaxPeck said:

What is to stop them from writing in their contract that by not opting out by some arbitrary date they now own the rights your computer, and then never notify you? *snip*

 

On 4/2/2019 at 8:16 PM, Lisias said:

The Law.

*snip*

Im sorry but if you are in the US or EU your fundamental understanding of how the law works it wrong, appoligies if your talking about somewhere else like canada....im asuming your US because your  you kept mentioning the New york convention, even thought it dosent apply to eula or any digital contract.

the law dosent prevent this in either of these large chunks or the world. e.g. gamestation deciding to collect souls as a joke, but still in a eula. Yes it would get trashed in the courts if they ever did try to take peoples computers, literally because of the eulas tenious grasp under law, but they can still write it in there, just like t2 has done. 

https://www.geek.com/games/gamestation-eula-collects-7500-souls-from-unsuspecting-customers-1194091/

i dont know if your just googeling to win an argument, but alot of what your saying is wrong, and not from accurate, or fully understood sources. 


The long and short of it is, the new EULA's binding arbritation, is not valid in europe , and because of prescidents, (im mention on page one or two, ) you could fight it in america. but because of the legal system there, itll probably cost you. 

If your in the US, the opting out is a good idea if you notice it, but if you dont thats not the be all and end all.

[Lisias]

15 hours ago, Space Kadet said:

Im sorry but if you are in the US or EU your fundamental understanding of how the law works it wrong, appoligies if your talking about somewhere else like canada....im asuming your US because your  you kept mentioning the New york convention, even thought it dosent apply to eula or any digital contract..

No. You are. The only way to sue someone from another country is by the New York Convention, unless your Country has an additional agreement with the othet country. (the EU is a great and huge "New York style Convention" with steroids - the EU members are still Sovereign States. The huge mess that's BREXIT corroborates my statement.

If EULA are dead letters in your country, you have a problem: it's the EULA that says you are allowed to use the software (and how). If the EULA is unenforceable for you, it's unenforceable both ways. 

A very nasty situation, I say.  There's an additional Convention that almost every Country is also signatory, being that the Berne Convention.

The EULA is the thing that says you are not in Copyright infringement under the Berne.

I said before and I say again: go to the New York Convention site I mentioned above and check for your country laws that implement it on your Country. 

Otherwise, you are a liability to yourself.

[razark]

So, is anyone in here voicing a legal opinion actually a lawyer?

Edited April 7, 2019 by razark

[dr.phees]

To be honest, the fact you require a written statement for the opt out is really bad policy. And in times, where the actual product, the game, is usually bought online without a physical copy like a CD-ROM or similar, requiring a physical letter is straight ridiculous. I do not consider this respectful behaviour.

I like SQUAD, but Take-Two is simply making it as hard as possible to opt out. By the way, I don't think this agrees with European law.

 

[Gargamel]

1 hour ago, razark said:

So, is anyone in here voicing a legal opinion actually a lawyer?

And one that specializes in International Consumer Law?

 

 

Overlapping threads have been merged. 

[Cheif Operations Director]

Enough mudslinging here people. Your enemy is not each other! 

[Lisias]

1 hour ago, razark said:

So, is anyone in here voicing a legal opinion actually a lawyer?

Nope. But I hired some in my life. I strongly suggest to everybody to hire one and ask questions before assuming something due reasons.

There's no such thing as an International Court of Law. All that exists are agreements between different Sovereign Countries.

 

[Space Kadet]

6 hours ago, razark said:

So, is anyone in here voicing a legal opinion actually a lawyer?

Im not a lawyer, but i did take a company to court over their eula, and they had a forced arbritration clause. So ive literally had first hand experience of this exact issue. Thats the reason i quoted the precidents in the US that nullify arbitration agreements in an updated eula. 

 

This is why i put up what i did, and also why i know that people googeling articles to support their oppinion are not only wrong, but show little understanding of the base law and are just googeling articles to support their stance. Like linking an article from america when talking about e.u. Law. 

 

Edited April 7, 2019 by Space Kadet

[Lisias]

1 hour ago, Space Kadet said:

Im not a lawyer, but i did take a company to court over their eula, and they had a forced arbritration clause. So ive literally had first hand experience of this exact issue. 

That only worked that exact way because that Company you sued had an Office on your Country (or at least on EU).

Check your Lawyer again on this subject, instead of dismissing other people arguments due links you think doesn't applies to you. Common Law's principles are shared between some Countries' Laws.

You don't tell us in which country you are, so we can't address it exactly as you wish. If you live in UK this can be of use, perhaps? 

https://www.contractorcalculator.co.uk/contracts_tainted_illegality_unlikely_enforceable.aspx

Edited April 7, 2019 by Lisias

[razark]

6 hours ago, Lisias said:

I strongly suggest to... ask questions before assuming something due reasons.

Reasons such as what some random person on a video game forum said?

[Lisias]

3 minutes ago, razark said:

Reasons such as what some random person on a video game forum said?

Oh, yes.

You can bet your mouse it's what I did. And I suggest everyone to do the same.

[swjr-swis]

On 4/3/2019 at 3:24 AM, Lisias said:

On Civil Law, I can do whatever I want, as long there's a Law saying I can.

I don't want to get into this debate, but this part puzzles me.

If it is literally the way you describe it: can you quote us the exact article in your local lawbook that gives you permission to breathe? I'm no lawyer, but I am willing to wager a beverage of choice that you'll find no such article. So is the entire country in violation for 'unsanctioned survival activities'?

 

[Kerbinchaser]

Well written. 

I am not going to take a side here yet, as I am not knowledged on EULAs in general, but I like that the OP was actually well written for once. 

[Lisias]

18 hours ago, swjr-swis said:

If it is literally the way you describe it: can you quote us the exact article in your local lawbook that gives you permission to breathe? 

Art. 5º Todos são iguais perante a lei, sem distinção de qualquer natureza, garantindo-se aos brasileiros e aos estrangeiros residentes no País a inviolabilidade do direito à vida, à liberdade, à igualdade, à segurança e à propriedade, nos termos seguintes:

"All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, as follows:"

https://www.senado.leg.br/atividade/const/con1988/con1988_15.12.2016/art_5_.asp

You need to breath to be alive.

You don't have to agree with it. You don't have to even understand it. All the Law demands is your compliance.

In time:

https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/

Edited April 8, 2019 by Lisias
Tyops. Added brute force translation to English

[swjr-swis]

1 hour ago, Lisias said:

You need to breath to be alive.

Not exactly how you worded it before though. Now you're saying that it's not necessary for the Law to actually say you can do it, it can also just be inferred/implied indirectly.

Something else then: does it also state anywhere that citizens/residents are allowed to wear clothes? T-shirts and even underwear may be implicitly outlawed by not being specifically mentioned anywhere.

We can probably go on back and forth like this for a bit, but pretty inevitably we're going to encounter something we all take for granted as permitted that is not explicitly or indirectly mentioned in your code of laws. That's rather the eternal problem with lawmaking: you can't ever anticipate everything that people can come up with to do or try. So to say 'you can do anything as long as the law says you can' is inevitably going to leave gaps of things lawmakers forgot to think about giving people permission to do.

 

P.S.: I'll concede the wager on the indirect 'permission'. I owe you a beverage.

Edited April 8, 2019 by swjr-swis
P.S.

[Cheif Operations Director]

People this is basic, in a free society atleast. A law does not authorize behavior it prohibits it. Is their a law saying you can  use a mouse in your left hand? Is their a law saying that you can paint your walls, is their a law saying that you can change a light bulb. I'm not talking about War Rationing here I'm talking about General life. It makes no sense for a legislature  to authorize behavior as the list of possible things to do is endless! 

Furthur more what does this have to do with the EULA. 

13 hours ago, dr.phees said:

To be honest, the fact you require a written statement for the opt out is really bad policy. And in times, where the actual product, the game, is usually bought online without a physical copy like a CD-ROM or similar, requiring a physical letter is straight ridiculous. I do not consider this respectful behaviour.

I like SQUAD, but Take-Two is simply making it as hard as possible to opt out. By the way, I don't think this agrees with European law.

 

Exactly suppose (to be outrageous) you bought KSP on an American Mars base. Do you want to FedSpaceX that letter to Take two headquarters? I mean honestly the insanity. Laws need to catch up the internet it really is the wild web. 

Edited April 8, 2019 by Cheif Operations Director
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