Last week I stopped by my local specialty video game retailer to pick up the latest release from Gearbox Software. I acquired a collectors edition of the PC version of the software. Before I opened up the packaging, I saw a notice on the top of the box about the product. I would like to talk a minute about the purpose of the notice in the purchasing and licensing of computer software.
The notice is a sticker on the top of the collectors edition box. I have reprinted the contents of the message for the purpose of this article. It reads as follows:
NOTICE: Product offered subject to our acceptance of the 2K Games License (see http://www.take2games.com/eula) and the Steam Subscriber Agreement (“SSA”). You must activate this product via the Internet by registering for a Steam account and accepting the SSA. Please see http://www.steampowered.com/agreement to view the SSA prior to purchase. If you do not agree with the provisions of the 2K Games License or SSA, you should return this game unopened to your retailer in accordance with their return policy. Non-transferable access to special features such as exclusive, unlockable, downloadable or online content, ,services, or functions may require single-use serial code, additional fee and/or online account registration (13+). Access to special features may require internet connection, may not be available for all users, and may, upon 30 days notice, be terminated, modified or offered under different terms.
The main purpose of the notice is to let the consumer know what he or she is actually paying for when receiving the retail software package. The specialty store gains most of its revenue by reselling video game software consumers trade in. For the video game console versions of the software, consumers can just put a used disc into a console and play the software without much fuss. However, this software in particular uses Steamworks according to the Steam Subscriber Agreement. Even if you insert the disc it, it just allows you to install the software quicker. You still need to input the software key into the Steam service and download any updates the developer or publisher wants to apply to the software. Once a consumer inputs the software key, another consumer cannot use the disc in the package to install and play the game; another user would need to pay for the digital key before completing his or her own installation. Furthermore, even if the software is installed on the computer, Steamworks only shows the software if the correct user is logged in. Therefore, the retail store will not accept an opened package of the PC version of the software; they will only trade for an unopened package assuming there were a defect.
Thus, the contract is more complicated than the transaction of money for goods. The contract between the consumer and the retail store is only on the unopened package. The notice is there to remind the consumer that once the package is opened, the consumer accepts two new contracts, both based on licensing the software instead of actually buying it. First, the consumer accepts that the license Valve Software has published regarding use of its Steamworks service to play the video game software. Second, the consumer accepts the additional licensing terms from 2K Games, the publisher of the video game software. Both licenses seek to protect the rights of the owners of the products and services in question.
While the notice may seem to skew against the interests and rights of the consumer, the contracts mentioned are still legally enforceable. The notice tells the consumer to read the online copies of the Steam Subscriber Agreement and the 2K Games License to understand what opening the retail package actually entails. Both agreements are contracts of adhesion, contracts created for general transactions following forms instead of individual concerns. Interpretations of adhesion-based contracts are skewed in favor of the party with less bargaining power, which in this case is the consumer who is not expected to read through two different licensing agreements only available online before “clicking through” and accepting the terms of the contract. However, a contract can be formed through performance alone. The policies of the software industry in and general and the specialty store indicate that opening the package constitutes an acceptance of the terms of the agreements. Furthermore, the specialty store policy forbids the sale of this particular software title to anyone under 17 years of age. This is an industry wide standard maintained by a ratings board independent of video game software publishers and developers. Therefore, there is little to no chance the consumer is incapable of forming a contract due to incapacity due to being a minor. A consumer choosing the PC version is also more likely to be familiar with the terms of PC video game software licensing policies as opposed to console video game software licensing, the bulk of the specialty store’s sales.
Once I open the software package, I can use the software key inside to download the video game from within the Steam service, or I can give the key to someone else for his or her personal use. Currently Steam users cannot resell software keys they have already used. Theoretically, if Steam removed the user’s license when a user gave the key to someone else, the transaction could satisfy contractual obligations. Copyright obligations could also be satisfied because this system does not allow for unauthorized copying of proprietary products. At this time, consumers wishing to resell video game software should purchase video game console versions of the software at retail instead of the PC versions. The PC version still retains advantages in more rapidly reduced retail prices as compared to console versions and, when allowed by the developer, ability to debug the software when errors occur or modifications are desired to improve presentation or performance.