Game-addicted man scores rare win over software lawyers
Lineage II and the unenforceable EULA
A Hawaii man who sued a company over his crippling addiction to the computer game Lineage II has gone where few litigants have managed to go, defeating the end-user agreement that said he had no right to bring the case to begin with.
Craig Smallwood sued Lineage II maker NC Interactive late last year, claiming that his compulsive urge to play the game caused him to sink more than 20,000 hours into it. As a result, he had to be hospitalized and continues to suffer extreme and serious emotional distress and depression that requires treatment and therapy three times a week, according to court documents.
His lawsuit, filed in federal court in Hawaii, accuses the game maker of failing to warn him of the dangers of the game and then locking him out of his three accounts with no warning. Causes of action include misrepresentation, unfair and deceptive trade practices, defamation, and intentional infliction of emotional distress.
NC Interactive has responded the way most software companies and online services have for more than a decade: it argued that the claims are barred by its end-user license agreement, which in this case capped the company's liability to the amount Smallwood paid in fees over six months prior to his filing his complaint (or thereabout.)
One portion of the EULA specifically stated that lawsuits could only be brought in Texas state court in Travis County, where NC Interactive is located. Another section read:
12. Limitation of Liability * * * IN NO EVENT SHALL NC INTERACTIVE . . . BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES . . . REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, THE SOFTWARE, YOUR ACCOUNT OR THIS AGREEMENT WHICH MAY BE INCURRED BY YOU . . .
More often than not, this is where cases such as these end. User sues company; company cites EULA barring such lawsuits; judge grants company's motion to dismiss. End of story.
But the judge in this case, US District Judge Alan C. Kay, noted that both Texas and Hawaii law bar contract provisions that waive in advance the ability to make gross-negligence claims. He also declined to dismiss Smallwood's claims for negligence, defamation, and negligent infliction of emotional distress.
As Freedom to Tinker blogger Steve Roosa writes, the decision “may achieve some lasting significance in the software license wars.” For 20 years, the software and online user “has been dying a slow death under the decisional law, with software license agreements routinely interpreted in favor of software companies on any number of issues.”
It's always encouraging to see a decision that smacks a mighty Goliath, though one can't help regretting that this one seems to favor a David who, by his own admission, is no longer able to dress, bathe, or communicate with family and friends as a direct result of his use of Lineage II.
A PDF of the decision is here. ®
Welcome to today, where people often blame others for their own problems. AND GET AWAY WITH IT!!!!
Its incredible the number of comments from people who seem to have TOTALLY missed the point of the article.
To wit; an EULA that strips a consumer of their right for seek redress (even if it is a dodgy claim) in their own jurisdiction for software that has harmed them, real or imagined, has been found to be invalid.
Which also opens up for challenge the other limitations that most EULA impose, like absolving the provider of the software from liability when their defective software crashes and costs the customer money because of it.
At least that is what I got from article.
"It's always encouraging to see a decision that smacks a mighty Goliath, though one can't help regretting that this one seems to favor a David who, by his own admission, is no longer able to dress, bathe, or communicate with family and friends as a direct result of his use of Lineage II.
He did however find time to engage a lawyer and file what appears to be a frivolous law suite. Whats next a law suit because people have become addicted to watching avatar?
(BTW 20,000 hours is 833 days did none of hist family notice this?)
Sued for failing to warn of the dangers of the game
Because what we need is ... ehm ... more warning stickers
didn't think I could cheer for an EULA
What a crock. How is this different from any compulsive behavior, such as alcoholism? After say 1000, not 20000, hours of playing the game, might he not have noticed on his own that he had a problem? LOOOOOSER.
Throw this bum out of court!
But don't use that to set a precedent that bolsters the general validity of EULAs.