(Disclaimer: While I am a law student, I am not a lawyer, and this is not legal advice.)
I see these terms being thrown around in-game and on the forums, and despite my efforts to correct player’s misconceptions on what the TOS and EULA actually do, the misinformation is rampant. Hopefully this will help clear up some of the confusion! The article centers on a question relevant to all League of Legends players:
What exactly are you agreeing to when you play League of Legends?
In this article I will quickly explain how the EULA and TOS are legally enforceable contracts, what the differences between the two are, and finally how they apply to the average player. I cannot stress enough that while I am doing a legal analysis, I cut through a lot of legal mumbo-jumbo and make conclusive statements for the purposes of entertainment. If you need legal advice, please speak with an attorney.
I. Clickwrap Agreements
Just about every time you install a program, download a patch, or purchase from a website, you have to pass through a threshold of “agreements.”
Many of these agreements are called “shrinkwrap,” “clickwrap,” or “adhesive” agreements - where you don’t see/understand what you’ve agreed to until after you’ve already agreed to it. For example, many online games only allow you to see the TOS after you’ve bought the game, but before you can play it online. A better example is a website, where you’ve already “agreed” to their TOS just by being on their site.
Clickwrap agreements tend to have certain characteristics:
- Clickwrap contracts are usually offered on a “take it or leave it” basis. In many contractual agreements, parties can negotiate over the terms of the contract, but in clickwrap contracts, the user has no bargaining power –they can either agree to all the terms or none.
- As discussed above, click wrap agreements often apply post-transaction. For example, some companies (such as AutoDesk) typically don’t allow people to resell their software – but a customer might not know that until after they’ve purchased AutoCAD, and are going through the installation.
If your knee-jerk reaction is similar to what mine was, you might be thinking, “is that really a legal contract?” Because let’s be honest, if you’re like most people, you simply don’t have the time to read every agreement you accept online. Even if you read most, there will often be terms that won’t make sense until you start using the service/software (e.g., how many people could understand what “riot points” are prior to installing League of Legends?) This part of why EULA/TOS are often considered to be adhesive contracts – most of us have no idea what it is we’re agreeing to.
So are these even legal? The short answer is: Usually. There are, however, some limited exceptions:
- Explicit Agreement: The rule of thumb is that a user must explicitly agree to an agreement before it becomes enforceable. If you don’t make an explicit act showing you are both aware of the terms and you agree to them, they are unlikely to be enforceable as a contract. While this isn’t exactly a problem for Riot (you have to click “I Agree” every time a new patch comes out), it is a notable exception to many software agreements.
- Outrageous Terms. If there’s something absolutely ridiculous and unexpected hidden in the fine print (for example, the “immortal souls clause” that granted a British game company 7500 “soul-licenses”), that term or the whole agreement may be rendered invalid.
- Application to minors. In most situations, if you’re under the age of 18, you lack capacity to enter legally binding agreements. This may provide an exception to click-wrap agreements in some situations, as the contract may be voidable.
II. “EULA” vs. “TOS”
So since we already have no idea what we’re clicking, why are there so many boxes? Why not just throw it all into one box and get it over with? Although many portions of the EULA and TOS overlap, there is a fundamental distinction between each type of agreement:
EULA: EULAs govern the use of the software itself. This is useful to stop unauthorized use of the game, as well as to disclaim liability for what it does to your system.
- Example: Hosting your own “League of Legends” world championship, with dedicated servers to boot, would likely be a violation of the EULA if you used Riot’s software (and probably some intellectual property violations as well).
- Example: Riot’s EULA would probably prevent them from being liable if League of Legends overheats your cardboard toaster. Which is really the best outcome for everyone.
EULAs are often extremely broad in what they cover. Interestingly, Apple’s EULA for iTunes explicitly disallows use of their software for the development of weapons of mass destruction:
Apple v. Estate of Hussein is still pending.
TOS/TOU: The Terms of Service governs the use of a particular service offered. In Riot’s case, some of the services offered are the ability to create an account and a means to use that account via access to their servers. While you are using their service, you are expected to follow their rules – otherwise, they may terminate your access to the service, as per the agreement. Most players will only be concerned with the TOS.
- Example: Going idle or AFK in-game often enough can result in temporary or permanent suspension of your ability to access Riot’s servers, because you’ve agreed to allow LeaverBuster to monitor in-game activity.
The main difference between the TOS and the EULA for players is in the types of violations, and what Riot is able to do in terms of punishing players who breach these agreements. For the most part, the TOS will impact a user’s access to the service. The EULA, on the other hand, will impact a user’s access to the software.
Say you’re having a bad game, and decide to spam “**** you all, **** ***-skilled *******s!!!” a few dozen times in all-chat. Assuming this violates the TOS, Riot’s punishments all involve your account’s use of the service (remember, the service is access to their servers) even to the extent of permanent bans. This is where I see a lot of confusion, especially when players argue for methods (such as uninstallation) to combat toxic behavior – they confuse the accounts for the players, and the service for the software.
Players are only able to access the service through an account, and thus, can only violate the TOS through the use of an account (the notable exception to this is browsing their website, but that is beyond the scope of this article). The way Riot has their TOS set up, the account acts as a real-life shield for players – both for good and for evil. The account provides a layer of privacy protection and facilitates a pseudo-anonymous experience, a great benefit for online interactions. On the downside, it makes it very difficult to penetrate the account and punish players directly – especially when it’s difficult to prove that it was that player breaking the TOS (e.g., you’re in the middle of a match when you have to answer to door (it’s your turn to pay for the pizza), and when you get back to your computer, you find that your roommates have been soliciting some of the female characters in a manner rather inconsistent with that of a gentleman).
Under the TOS agreement, it is unlikely that Riot could force removal/uninstallation of the software. And the way Riot’s current TOS is set up, it would also be difficult to enforce an IP ban (should Riot wish to implement such a penalty, it may be possible, but the TOS would likely need to be reworded).
A forced uninstallation (i.e., an injunction) could only occur through a EULA violation (although this doesn’t stop vigilante players from wishing it to upon less-than-desirable teammates). The terms of the EULA are much less relevant to most players. However, they do clarify an interesting point: violations of the EULA would probably end up in court (or “mandatory arbitration”). This is where Riot would claim you’ve somehow overstepped the “fair use” of their product, perhaps by selling downloads to unsuspecting users, or attempting to “reverse engineer” their game to create your own, etc. They’d be suing you for damages, injunctions, and possibly attorney’s fees, depending on the nature and extent of the violation.
To date, I have yet to see any pending complaints by Riot against any of their players. Suing your customers is not the custom and practice of most business entities, and on top of that, Riot tends to be more forgiving to its player-base than most companies in the industry. If they have had issues with EULA violations, it’s likely they have been taken care of using cease & desist letters – very common in the realm of IP violations.
TL; DR: The Terms of Service and EULA are legally enforceable contracts. If a player violates the Terms of Service, their access to the service may be suspended but not necessarily their access to the software – that would require a violation of the EULA.
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Special thanks to Chefo for working on images and formatting!