Category Archives: Law

The Storytelling Animal: How Stories Make Us Human

StorytellingAnimalWhy do we tell stories? Is it genetics? Is it evolution? Is it simply our preffered way to waste time born in an era when technology was non-existent? The Storytelling Animal: How Stories Make Us Human tries to answer these questions with very compelling arguments.

In The Storytelling Animal: How Stories Make Us Human Jonathan Gottschall shows you how the world of stories is fundamental to the human condition. Through the chapters Gottschall takes you through many current theories of why we as humans have developed, and kept, the art of storytelling. The book also explores the science behind storytelling, and some of the reasons why stories have a magical pull on our attention and decision-making process.

The book is written in a very active and readable tone.  Gottschall himself, taking his own example, makes use of varied stories frequently throughout the book.  Through his use of powerful storytelling the reader gets a first-hand look at how a good narrative can immerse us and capture us.

All in all The Storytelling Animal: How Stories Make Us Human is a delightful reading experience, filled with insight into the many different types of storytelling, and why storytelling is, hands-down, the way to go when attempting to ingrain memorable experiences in the minds of other human beings.

For anyone looking to explore the importance of storytelling, or anyone looking to understand why the world of make-believe has such a great allure, The Storytelling Animal: How Stories Make Us Human is certainly the book to read. I give this book an 8/10.

Influence: The Psychology of Persuasion

Influence

Influence: The Psychology of Persuasion (Collins Business Essentials)
presents an in-depth look into the many persuasive tools available to us in our everyday human interactions. In this book Dr. Cialdini puts his decades of experience in the fields of psychology and marketing to teach you how to be an effective and persuasive communicator.

I picked up Influence: The Psychology of Persuasion (Collins Business Essentials) as part of a package of some twenty or so books regarding influence and storytelling for my trial library. When I ordered it I was not sure what to expect or if it would be worth my time, but once I sat down to read it I quickly realized that this book was a gold mine. Throughout the book Dr. Cialdini guides you through the intricacies of human behaviour, and in the process discusses what causes us to make the decisions that we make. Every chapter of the book is divided into key elements of our decision-making process, and in each one of those chapters Dr. Cialdini explains, through research studies, why those elements play a significant part in our lives.

In Influence: The Psychology of Persuasion (Collins Business Essentials) Dr. Cialdini explores six tools that can be used to persuade others:

  1. Reciprocity: The feeling of indebtedness we have when others have extended a favour to us.
  2. Commitment and Consistency: The unwillingness of people to change their minds once they have committed to an idea publicly,
  3. Social Proof: People will do things that they see other people doing.
  4. Authority: People will do things when commanded by authority figures.
  5. Liking: People’s willingness to be persuaded by people that they like.
  6. Scarcity: People tend to value information more when they perceive it to be scarce.

By learning how to apply these principles we can gain an advantage when trying to persuade, whether it be those we deal with on a daily basis, or a jury panel ready to decide someone’s fate, and Dr. Cialdini does an excellent job of explaining how these principles work in this book. Overall this is a great book, it is simple, to the point, and not incredibly boring like some of the more “scientific” publications out there.  If you’re looking to learn the basics of persuasion I give this book a 8/10.

Sony Sued Over PSN Security Breach, Faces Millions in Damages

On May 11th, 2011 James Campo filed a class action suit in the U.S. District Court for the Northern District of California seeking relief for all parties injured by Sony’s subpar security practices that led to the compromise of personal information of millions of subscribers.

The complaint breaks down as follows:

  1. Breach of express warranty: Sony failed to protect customers’ personal information as promised in its privacy policy.
  2. Negligence: Sony failed to use reasonable care in handling customers’ personal information and in informing customers of the security breach.
  3. Gross Negligence: Sony knowingly failed to implement proper security measures to safeguard customer data.
  4. Negligence Per Se: Sony violated California Civil Code section 1798.82 that requires a timely disclosure when a breach of security takes place.
  5. Unlawful Business Practices: Violations under a plethora of statutes basically saying that Sony’s conduct and business practices are injurious to consumers.
  6. Unlawful Business Practices: By advertising Sony’s system and the PSN as safe even though Sony knew or should have known they had inherent defects.
  7. Violation of California Civil Code section 1798.80: Sony failed to disclose to plaintiffs the security breach without unreasonable delay.
  8. Breach of Implied Contract: Plaintiffs provided Sony their personal information in order to buy online content or play games, implicit in this transaction was Sony’s promise to use reasonable care in safeguarding that information.
  9. Bailment: Sony was the bailor of plaintiffs personal information and breached this duty by not exercising reasonable care over it.
  10. Injunctive Relief: Plaintiff wants Sony to fix the security flaws, disclose to the list of those whose information was compromised and remedy the effects of the disclosure of the confidential information.

Sony has yet to file an answer to the complaint and we probably won’t be seeing one for a bit but what is clear is that Sony faces millions/billions of dollars in damages and is likely to settle and take better care of their network security from now on.

A copy of the original complaint can be found here

Sony Sued Over FFXIII-What Sony Really Thinks of Your Rights as a Consumer

Almost a year ago Mr. Daniel Wolf filed a class action suit against Sony and Square Enix due to Final Fantasy XIII allegedly bricking his PS3 along with others. The complaint, which states multiple violations of California consumer laws can be found here. A quick google search reveals multiple users that have had their consoles destroyed by the game and at this point it isn’t clear whether it is due to a defect in the PS3, a defect in FFX13, or both.

In its motion to dismiss defendant Sony admits the allegations that there are “100’s of complaints” but in a surprising twist claims that hundreds of people getting their consoles bricked is an insignificant amount compared to the millions of copies sold. I’m sure to Sony that sounds like a small price to pay but it doesn’t sit so well with the consumer who just had his shiny new toy destroyed and now needs to pay $250 to get it fixed. And besides, if hundreds of broken PS3s is “insignificant” to Sony then why does the multimedia giant refuse to repair the consoles free of charge? Sony’s stance however, might make legal sense since Mr. Wolf is trying to certify a class of all FFXIII buyers and not just the ones that have suffered actual damage from the game.

Sony’s second stance is one that will likely get some heads turning. In its motion to dismiss Sony claims something to the effect that the PS3 only has a 1 year warranty and whatever happens to it afterwards is not Sony’s concern. This stance means that those whose PS3 is over 1 year old should be at risk of having it damaged without any remedy even though it could very well be Sony’s fault that creates the damage. Sony’s motion was filed in March 2011 and it will certainly be some time before this controversy is resolved but this case is worth following as it will set the tone for what consumers’ rights are after the express warranty has expired when their products are damaged as a result of the manufacturer’s misconduct.

Complaint

Motion to Dismiss

Setting the Virtual Stage

Virtual Real Estate

We begin our immersion into the world of computers and the law by analyzing the four year old case Bragg v. Linden Research, Inc. 487 F. Supp. 2d 593. In Bragg, the plaintiff who is apparently a lawyer brought suit because Linden Research(the maker of Second Life) closed his account after the plaintiff allegedly used an exploit to acquire a Second Life parcel of land at far below market value. Bragg brought claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, California Unfair and Deceptive Practices Act, California Consumer Legal Remedies Act, fraud, conversion, intentional interference with contractual relations, breach of contract, and tortious breach of the covenant of good faith and fair dealing along with violation of California Civil Code section 1812.600.

After removing to Federal court defendant Linden attempted to compel arbitration as stipulated in the Second Life EULA which Bragg had agreed to. The Second Life arbitration agreement at the time stated:

Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in San Francisco, California under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules…. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision without breach of this arbitration provision.

If the arbitration agreement stood, the parties would be forced to arbitrate their claims leading to more expense to Bragg, a substantial likelihood of a smaller award for damages and most importantly the arbitration was to be confidential so that future plaintiffs bringing actions against Linden would not benefit from precedent. Fortunately for Bragg and gamers worldwide, the court found that the arbitration clause was unconscionable because it, coupled with other terms of the EULA which allowed Linden to cancel accounts for any reason, allowed the stronger party to choose its forum while forcing the weaker party to only one forum(arbitration in SF). Another important factor was the cost differential. Although the parties couldn’t come to an agreement as to the cost of arbitration, the average of the estimates provided was over $10,000. If this provision was upheld, it was clear that many plaintiffs would be kept from having their day in court as it wouldn’t make sense for a person to spend tens of thousands of dollars to litigate small claims which are more typical.

So what does it all mean for gamers everywhere? At least in California contract conditions which put the weaker party in a disfavorable position so as to keep it from having its day in court will not be enforced. Furthermore, at least in the context of Second Life where the defendants had an ongoing advertising campaign claiming that gamers could actually “own” property the courts will uphold a gamer’s right to protect his virtual property from unfair taking by game companies.

Ehrhardt’s Florida Evidence

Ehrhardt

Ehrhardt’s Florida Evidence is the evidence book that teaches you everything you ever wanted to know about the Florida evidence code, and then some.

With clear and concise language, this book carefully guides you through the Florida evidence code, breaking down important and complicated sections into subsections for easy understanding of the material. Particularly useful are the book’s numerous parenthetical citations on the bottom half of every page. Not only does the author do a fantastic job of explaining each section of the Florida evidence code, but by making references to the applicable caselaw, the reader is able to follow up on any doubts that remain.

Ehrhardt’s Florida Evidence dedicates over 260 pages to hearsay, making it one of the most complete sources on the subject. As expected, the book focuses on the technical aspects of the rule as applied in Florida caselaw, and is replete with applicable caselaw throughout this entire chapter. If you’re like me and find the many challenges embedded in the hearsay rule and its many exceptions exciting, Ehrhardt’s Florida Evidence is the right book for you.

Something I found particularly useful is the book’s chapter on authentication of documents. In it the author covers the many different permissible ways of having a document authenticated, when a document is self-authenticating, and when no authentication is required. Ehrhardt’s Florida Evidence is certainly a valuable source to keep handy when figuring out whether a document needs to be authenticated, and if so whether the witness or method you have in mind can get it done.

With 1082 pages of solid, on point knowledge, and an appended full copy of the Florida Evidence Code, Ehrhardt’s Florida Evidence deserves a 10/10. I only wish I had gotten my hands on this wonderful resource months ago.

Your Rights Under The Eve Online EULA – How CCP May Be Shortchanging You

If you read the EULA once or twice, you get the feeling that it hasn’t been revised as a whole in a long time. Not only is it riddled with inconsistent provisions, but it even has provisions that CCP stopped abiding by years ago. But just because CCP has decided it doesn’t want to live up to its end of the bargain, doesn’t mean you no longer have the rights given to you by the EULA.

Take Section 2(A):

A. Establishing a New Account
Upon establishing a new Account, you will be entitled to play EVE for up to thirty (30) days without paying the subscription fee (the “Trial Period”). If your Account is not terminated in accordance with the procedures set forth below within that thirty (30) day period, you will be charged the subscription fees as described during the registration process when you established your Account.

I don’t know how long its been since you got 30 free days on establishing an account, but these days you don’t get any free days when you start an account(except whatever trial offers are ongoing at the time). If these provisions were to be enforced, by establishing an account, CCP must provide you with 30 days of game time. Do note that establishing an account and purchasing a software license are separate under the EULA per 1(i).

Section 3: ACCOUNT TRANSFER / CHARACTER TRANSFER

You are not permitted to transfer your account to another person. If you wish to discontinue your account please refer to section 6. of this EULA. You may transfer a character from your account to another account, either belonging to you or another person. This transfer option is available from the EVE Online Account Management web site https://secure.eveonline.com/login.asp and is subject to fees and the following limitations: You may not offer to transfer characters except your own, or act as a “broker” or intermediary (for compensation or otherwise) for anyone wishing to transfer or obtain characters. The transferee will obtain all rights to your character in a single transaction, and you will retain absolutely no control or rights over the characters, items or attributes of that character. You may not transfer any characters whose attributes are, in whole or in part, developed, or which own items, objects or currency obtained or acquired, in violation of the EULA.
Any character transfers or attempted transfers not in accordance with the foregoing terms is prohibited and void, and shall not be binding on CCP. A transfer or attempted transfer of a character is entirely at the risk of the parties to such transaction. CCP is not liable to any person (whether transferor, transferee or otherwise) for any acts, omissions, statements, representations, defaults or liabilities of the parties in connection with such a transaction.

Section 3 allows you to transfer characters as long as (1)their attributes are not developed in violation of the EULA, and (2) own items, objects, or currency acquired in violation of the EULA. In Eve you cannot develop your attributes by botting, botting is completely unrelated to developing your attributes since in Eve its a time-based process. Yet, there’s a new Eve policy in place where if they catch you botting they lock the character to your account permanently. It would seem that your botted character, as long as it no longer has currency or objects obtained through botting, should be allowed to transfer. By not letting you do so, CCP is violating its side of the bargain that you entered into.

Section 6(B)(ii):

ii. Termination of EULA
CCP may terminate the EULA, close all your Accounts, and cancel all rights granted to you under the EULA if: (i) you fail to pay the subscription fee when due; (ii) CCP is unable to verify or authenticate any information you provide; (iii) you or anyone using any of your Accounts materially breaches the EULA, makes any unauthorized use of the System or Software, or infringes the rights of CCP or any third party; or (iv) CCP becomes aware of game play, chat or player activity under your Account that is, in CCP’s discretion, inappropriate or in violation of the Rules of Conduct. Such termination shall be effective upon notice transmitted via electronic mail, or any other means reasonably calculated to reach you.
CCP reserves the right to terminate any and all other Accounts that share the name, phone number, e-mail address, internet protocol address or credit card number with the closed Account. Termination by CCP under this section shall be without prejudice to or waiver of any and all of CCP’s other rights or remedies, all of which are expressly reserved, survive termination, and are cumulative. You will not receive a refund of prepaid subscription fees for a termination pursuant to this section.

The issue with this provision is clear, CCP very seldom notifies anyone who has been banned. If you’ve received a temporary ban, you might get a message when attempting to login that you are banned for X number of days. However, on a permanent ban, you receive a standard “Incorrect username/password” message. By not providing notice, CCP has not effectively terminated your account, yet you are unable to access the service you have paid for. Chances are you will be entitled to a refund from the time you were banned, to the time you received notice.

What Can You Do About It?

The first thing to realize is that CCP has a direct remedy at hand if it thinks that you had violated the agreement(they ban you).  But what remedies do you have?  The easiest and most effective remedy for the user is instituting a chargeback.  If you paid in advance for 6 months with paypal or credit card and CCP has terminated your account in violation of the EULA, contact your payment provider and have them chargeback the account.  Not only will you get your money back, but the vendor(CCP) will be charged an additional fee for the payment provider having to investigate the chargeback.

There is nothing illegal about doing this, you have rights under the contract just like CCP does, and just like CCP you are entitled to remedies when the contract is breached.  Also, even if for whatever reason CCP was to sue you, its damages are limited to breach of contract damges(your 6 months worth of money that you would have lost anyway if you didn’t do a chargeback)  and as long as you make a reasonable attempt to settle the claim you won’t have to pay CCP’s attorney’s fees even if you lose.

He Who Is Without Sin Cast The First Stone – How You Could Be Breaking The Eve Online Eula, Without Knowing It

If you read the EULA once or twice, you get the feeling that it hasn’t been revised as a whole in a long time. Not only is it riddled with inconsistent provisions, but it even has provisions that CCP stopped abiding by years ago.

Lets take a quick look at the Sections that you may be violating.

Take the preamble to provision 2:

YOUR ACCOUNT
You may establish only one (1) account for each copy of the Software licensed. If you wish to establish another Account, you must obtain another license for the Software (you may be able to do this by purchasing another boxed version of the Software or from the EVE Online web site http://www.eveonline.com).

What CCP is saying here is that if you want to create multiple accounts, you need to buy(or obtain) more copies of the software license. Do note that establishing an account and obtaining a new license are mentioned in the same sentence, therefore common sense dictates that you do not obtain a new license simply by creating a new account. Its clear that CCP is aware that the majority of its player-base has multiple accounts with a single license of the software, yet this provision still remains embedded in the EULA.(More about this later)

Section 7(A):

A. Specifically Restricted Conduct
(1) You may not take any action that imposes an unreasonable or disproportionately large load on the System.

The clear wording of this provision is to put the players in violation for creating excessive load on the system. Note that it is written in the alternative, the conduct is not required to impose an unreasonable and disproportionately large load on the system, but rather, ether one will do. Undoubtedly, any time a huge blobfest goes down in null there is a disproportionately large load on the system for the alliances involved as compared to the rest of the active Eve population. Are we all EULA violators?

Section 7(A)(3):

You may not use macros or other stored rapid keystrokes or other patterns of play that facilitate acquisition of items, currency, objects, character attributes, rank or status at an accelerated rate when compared with ordinary Game play. You may not rewrite or modify the user interface or otherwise manipulate data in any way to acquire items, currency, objects, character attributes or beneficial actions not actually acquired or achieved in the Game.

This is perhaps the most universally discussed EULA provision, and with reason, the entire clause is full of ambiguity and overbreath. For starters, “other patterns of play that facilitate acquisition of items…” covers everything from dual-boxing, to engaging in group warfare for more efficient pvping(facilitation of acquisition of items). I have deliberately left out the “at an accelerated rate” clause in order to maintain neutrality and avoid all the “OMG BUT THE SPIRIT OF THE EULA” stuff. Whatever “the spirit of the EULA” is, no one knows for sure, but its not something I want to spend time theorizing about. If the “accelerated rate” wording was given any weight, a botter botting 4 hours a day is not acquiring items at an accelerated rate, while a legit player tripple boxing for 6 hours a day might be. Which side do you fall on?

Section 7(A)(5)

You may not engage in any conduct that results in an Account containing items, objects, currency, character attributes, rank, or status that are inappropriate for the level or rank of the character contained in the Account, including without limitation arranging, making or accepting transfers of items to a character without adequate consideration, thereby augmenting or aggregating items in an Account and increasing its value for an Account sale.

Pay close attention to the highlighted part. Consideration is a contract term that refers to something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. It could be a promise to do or not do something, it could be payment, etc. What this provision says is that you cannot give someone else items without accepting “adequate consideration” in return. Mind you not just consideration, not just something of value, but something of adequate value so as to maintain the net value of the exchange close to 0. Now ask yourself, how often in the world of Eve Online, do people give other people, alliance mates, corp mates, etc, items of value for nothing or close to nothing?

Section 7(C):

Compliance with Rules of Conduct
You agree to observe and abide by the Rules of Conduct as may be amended by CCP from time to time. The current version of the Rules of Conduct may be viewed at http://www.eveonline.com/pnp/terms.asp, and are incorporated in the EULA by reference.

This provision is particularly hilarious. Its saying that the rules of conduct are incorporated into the EULA, meaning that when you sign the EULA you agree to abide by them as well. So we go to the rules of conduct and find the interesting tidbits…

Code of Conduct-Incorporated By Reference:

Section 5 of the code of conduct states:

You will report out-of-game issues regarding harassment, such as threatening phone calls or correspondence, to your local law enforcement officials or Internet provider. CCP will not reveal personal information about its subscribers to unauthorized individuals. We are not responsible for actions taken by our subscribers that occur outside the jurisdiction of our game servers or web site.

Ever been harassed on a forum or received hate email in regards to Eve Online? Didn’t report it to your local authorities or ISP? You are in violation of the Eve Online EULA.

Section 10 of the code of conduct states:
You may not market, sell, advertise, promote, solicit or otherwise arrange for the exchange or transfer of items in the game or other game services unless it is for in-game sales of in-game services or items.

This section seems to invalidate the entire services for ISK industry such as KB hosting, poker, and many other things I can’t think of right now.

Section 11 of the code of conduct states:
The advertisement or sale of out of game goods and services not directly related to EVE online is prohibited. The only out of game goods and services which can be advertised or sold are the following: EVE forum signature creation, website and third party voice communication server hosting or EVE Time Codes.

This section makes an exception for Eve time codes, “website and third party voice comms” and eve forum signature creation. Poker for ISK is neither website communications, nor third party voice communications, nor Eve forum signature creation.

Back to the main EULA-

Section 10(A):

For each valid Account you maintain, you may install a copy of the Software on, and access the System from, a single computer or Game platform, and from a secondary computer if you so choose. You must purchase a separate license to the Software for each additional Account you register; e.g., if you have 2 Accounts, you must have 2 licensed copies of the Software. You may not use more than one Account with a single licensed copy of the Software. You may make one (1) copy of the Software for backup or archival purposes.

Have you purchased a copy of the Eve Online license for every account you own? What exactly is CCP actually doing, and does it conform to what the EULA is saying?

Section 10(B):

License to Access the System to Play the Game
Upon establishing a valid Account, and subject to your continued compliance with the EULA, CCP grants you a limited, non-exclusive, revocable license to access the System, and to access and use the Game Content and User Content (each as defined below), in order to play EVE online. You may download (and, to the extent permitted by the System, make a single copy for your own purposes in playing the Game) and exchange Game Content and User Content exclusively via a valid Account, solely to play the Game, for purposes permitted by, and in a manner consistent with, the EULA.

…So…by Section 10(A), you need to purchase a separate license per valid account you create and per section 10(B), CCP grants you a license upon establishing a valid account…which one is it CCP? And more importantly, are you violating the EULA by not having license copies for each of your account, or are you not violating the EULA because Section 10(B) gives you a valid license just by creating an account?

Section 10(C):

You may not copy, distribute, rent, lease, loan, modify or create derivative works of, adapt, translate, perform, display, sublicense or transfer any information accessible through the System, including without limitation, any part of the Game Content or User Content, or any item, object or character in your Account, except that, solely to the extent permitted by the System, you may modify certain Game Content and User Content only for your own purposes in playing the Game.

Going back to killboard hosting example, killboard data is clearly either game or user content(or both). Copying, distributing, transferring, adapting, or displaying such content runs afoul of this section.

So now that I’ve walked you through the EULA, which side did you end up on, are you a violator?