I was reading a good post by some guy at a games forum - actually Neverwinter Nights - about how companies are in intentional breach of contract by putting copy protections on a product when the consumer is allowed to make copies of a CD for backup or archival purposes. The game isn’t so important as the legal issue that consumer rights are being walked over by companies because of their exploitation of the ignorance and apathy of consumers, i.e. us. We all know it isn’t just one game (or audio, for that matter) producer that does this…just about all of them do.
As many people have posted on this forum, the copy protection of the SoU cd keeps us from making any copies of the disk. However, according to the End User License Agreement, a binding contractual document, purchasers have the right to create a copy for backup or archival purposes. This is a right that purchasers have paid for, and Atari/Bioware (whoever is responsible for the protection software that prevents us from exercising it–I realize that the two companies are separate) is frustrating our reasonable expectations and is therefore in breach of the contract. Combined with: 1. the history of defective CDs; 2. the fact that NWN and SoU are games which we reasonably expect to enjoy for a long (indefinite) period of time (as evidenced by the highly touted–and excellent–Aurora Toolset); and 3. the Atari policy that limits replacing defective disks to a period of 90 days, Atari/Bioware face substantial potential liability. Under one theory they might be liable to all purchasers of SoU for the difference in value between the game we paid for (one that we could back up and therefore enjoy indefinitely) and the game we actually got (one with a potential expiration date of 90 days after the purchase date). They are CERTAINLY liable to any purchasers whose disks break (whether as the result of a defect or even of user carelessness) after the 90 day replacement period is up, since they prevented users from enjoying their contractual right to create a backup. Seriously. If you are a purchaser and your disk breaks or gets a scratch or quits being usable for any reason after the 90-day period has expired, DO NOT TAKE NO FOR AN ANSWER. You purchased the right to make a backup copy, but they intentionally frustrated your ability to exercise that right. This is a BREACH OF CONTRACT.
To Atari/Bioware (I’m guessing the culprit here is Atari), I would offer the following free, semi-competent, legal advice. Either 1. abandon the 90 day policy and accept the obligation to provide replacement copies of NWN/SoU AT NO COST for purchasers whose CDs stop working or 2. make 1 free, non-copy-protected copy available to every current owner (without, of course, providing an additional CD key). Under the second course of action, you could keep the 90 day policy (at least for those who received a non-protected version) since owners would then bear the cost of their failure to make a back up their game. As it stands now, Atari/Bioware (once again, probably Atari) is KNOWINGLY PREVENTING owners from exercizing their contractual right to protect their own expectations, and will therefore bear the costs should the original disk quit working.
I realize that many consumers (probably especially consumers of videogames, who tend to be young) are ignorant of their contractual rights, and that few are likely to pursue those rights in court. Still, a class-action lawyer would probably have little trouble getting together enough people to make it worth while, especially if she were able to successfully pursue the first theory of liability that I described above. If the culprit is indeed Atari, rather than Bioware, and if Atari has a general policy of frustrating consumers’ contractually conferred right to protect their software investments, then this should be even easier, since there is no reason such a suit would be limited to NWN or SoU. Of course, that might mean that this forum is the wrong place to post legal advice. But since I’m not actually sure who added the copy protection, and since Bioware is at least tangentially affected by this policy, and most of all since this is the forum where disgruntled SoU owners are most likely to be found, I thought I would go ahead and post it anyway.
Originally posted by ellonaias at:
Bioware forums (Above text is a copy and paste of that post - link provided for your reference)