Welcome to the Lawbringer, your weekly stop at the intersection of law and Warcraft. I am your crossing guard, trying desperately to not get run over myself.

First, I want to apologize for being a day late, but my week was spent preparing for the Multistate Professional Responsibility Exam. Unfortunately, the test was channeling Illidian. If I get a letter in a few weeks saying that I'm not yet responsible enough to be a lawyer, I will not be surprised.

Anyway, on to this week's promised topic: European Contract Law. We'll be approaching the same topics we covered on my side of the pond: contract formation, contract termination, and unfairness. These concepts form the basis of players' relationship with Blizzard, just like they do in the US. Whether Blizzard has the right to publish information about your avatars, ban you from the game, delete your achievements, or force you to resolve disputes in a mediation are all affected by the laws of the country in which a player resides.

The first challenge in this column is that there traditionally has been no "European" contract law; these issues were decided at a national level through the home country's common or civil law system. Trans-nationalism being all the rage, however, the politicos of the European Union have formed the Commision on European Contract Law which has drafted Principles of European Contract Law. A Common Frame of Reference "toolbox" to help various European legislatures standardize the various laws of contract across the continent to match these Principles. What this means, though, is that this law is in a state of flux -- and I am not a barrister, abogada, retchsanwalt, advokat, or avocat. Take everything in this column with a big grain of salt. And possibly a margarita to wash it down.

This column will go through each of the three topics, touching on English version of the law and then comparing it to Danish, French, and German law systems. The English system is common law formed over hundreds of years of cases, as we saw last week. It is different than the Scot or Irish legal systems, so I will not be designating it as United Kingdom. Danish law is representative of all Nordic legal tradition, a pragmatic civil law system with codes almost identical to those found in Sweden, Norway, Iceland, and Finland. France's law code is the Napoleonic Code of 1804, the model for Belgium, Holland, Luxembourg, Switzerland, Italy, Spain, Egypt, Louisiana, Quebec, and most South American countries. The German Civil Code of 1900 is the last of the great 19th Century codes, and serves as a basis, to greater or lesser extent, for codes in Japan, Greece, Austria, Turkey, and even the People's Republic of China. Obviously, this is not a list of every country in Europe, but it provides a good background. I'll also try to note any differences between established law and what may change with the Principles of European Contract Law. Finally, I'll describe what all this means for the European WoW community. And read very carefully; I will type this only once.

Contract Formation

The common law and civil law system are somewhat different in how they treat contract formation, so I'll separate my discussion of them.

England

We'll start with the English common law concept of Intent. As in the American system, offer, acceptance, and consideration are requirements, but an English contract first and foremost requires that both parties intend to have a contract, as seen from an objective observer (i.e. the court) Unlike the American system, in which the validity of the contract rests on whether the other party thought there was a contract (good old Lucy v. Zehmer again), whether the parties intended an agreement is based on whether a judge thinks they did. Summit Investment v. B.S.C., 1987.

Offer, Acceptance, and Consideration work in England much the same way they do in the US. The offer must clearly be a decision to enter into a specific contract; an "invitation to treat" -- an announcement that one is willing to do business -- isn't sufficient to constitute an offer. Acceptance can be performed in writing, verbally, or through actions, the last being how shrink-wrap licenses are permitted in England. Consideration is a concept unique in common law, so while it is necessary in England and its legal "descendants," it is not part of the Continental civil law system.

An analysis of the EULA and TOU from a British perspective yields a product substantially similar to an American one. By selling and purchasing the software, the parties show an intent to form a contract. An offer "Pay for playtime and behave by our rules and you can play in our toybox" is accepted "Click yes" and consideration of the purchase price and monthly fee is given. A contract is formed!

Civil law

Civil law countries include requirement for offer and acceptance, but consideration is not necessary. Displaying goods with a price or otherwise holding out oneself as a merchant or service provider may constitute an offer (Denmark, France), or it may only be an "invitation to treat," (Germany). Acceptance, at least for our purposes, works similarly to the English system, in that a contract cannot be formed without a second party agreeing to the offer. This is as good a place as any to point out that traditionally, civil law countries refer to the law of contract as the law of obligations; I'll be sticking to the "contract" label for simplicity.

Under the various civil law systems, the EULA and TOU are valid contracts. Whether the offer comes from a catalog advertisement or by presenting the disk in a store, players accept the offer. No money has to change hands to make contract "official," unlike in a common law system. Of course, money does have to change hands to avoid a breach of the contract, as players promised to pay.

Principles of European Contract Law

The new Principles document rehashes much of the same concepts. Parties have to intend to create a contract, there must be an offer of sufficient specificity to form a contract, an advertisement may constitute an offer, and acceptance can be done through word or deed. As the principles are close enough across countries (for our purposes, at least), whether legislators in London, Paris, Berlin, and elsewhere surrender even more of their sovereignty to Brussels is irrelevant to the validity of players' contracts.

Termination

Terminating a contract operates much the same way it does in the US -- the contract can be aborted by not giving acceptance, revoked through informing the other party, or terminated by breaching the contract. All three systems (amazingly) agree on these points. As for Euro-WoW-ers, they have those same options. Y'all can:

a) not accept the terms of the EULA/TOU,

IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, PLEASE DELETE THE SOFTWARE PROGRAM IMMEDIATELY AND ARRANGE TO RETURN THE GAME TO YOUR RETAILER.

b) withdraw from the contract, or

by cumulatively (i) destroying the Game; and (ii) removing the Game Client from your hard drive; and (iii) notifying Blizzard Entertainment by mail of your intention to terminate this License Agreement to the following address: Blizzard Entertainment S.A.S., TSA 60 001, 78143 Vélizy-Villacoublay Cedex, France.

c) breach the contract.

Blizzard Entertainment may, at its discretion, terminate this License Agreement in the event of a significant breach of the terms and conditions contained herein, or the terms and conditions contained in the Terms of Use. In such event, you must immediately destroy the Game and remove the Game Client from your hard drive.

These are exactly like the provisions we talk about three weeks ago.

Click through to learn about unfairness and how all this affects WoW players!

Unconscionability

England

Just as US contracts can be altered if their terms are found to be unfair enough, contracts under European laws can be found so as well. English law has codified this principle in the Unfair Terms in Consumer Contracts Regulations. These regs say that "A term is unfair if 'contrary to the requirement of good faith [it] causes a significant imbalance in the parties' rights and obligations ... to the detriment of the consumer. The law includes a non-exhaustive list of possible unfair terms, including "enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract" and "enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided." In the case law, the Court of Appeal has held that if one condition in a set of printed conditions is particularly onerous or unusual the party relying on it must show he has fairly brought that condition to the other side's attention (Spurling v. Branshaw) -- a point upon which a EULA or TOU may be vulnerable.

The Continent

Danish law addresses the problem of unfair contracts in Article 36 of the Contracts Act, which uses terminology roughly equivalent to that of other countries. France has several laws touching on these topics, including a requirement that the non-negotiating party (e.g. WoW players) must be reasonably aware of the clauses, and that those clauses were expressed in clear and unambiguous terms. France also has a Commission des clauses abusives that makes recommendations for merchants drafting these unilateral contracts. German law also permits courts to intervene in cases of unfair contract terms under both Art. 138 which voids contracts in which one party exploits another's needs or weakness to gain an "obviously disproportionate" pecuniary advantage and Art. 242 which requires contracts to be made in good faith. In response to the growing number of non-negotiated contracts, the Standard Contract Terms Act was drafted in 1972 to deal with this problem; it was made part of the official 1900 code by the Schuldrechtsreform in 2001.

Trans-national

As for the trans-national legislation, two documents come up. The first is the EU Directive on Unfair Terms in Consumer Contracts 1995, which created a baseline set of rules for unfair contracts. All three of the European jurisdictions I've described -- Denmark, France, and Germany -- actually have stronger protections than what that directive provides. The other document is the Principles of European Contract Law, of which Art. 4.110 provides guidelines for dealing with "Unfair Terms Which Have Not Been Individually Negotiated." This says about the same thing as the rest, namely, that a term may be avoided if it causes "a significant imbalance" in the parties' rights and obligations.

WoW and European Law

Remember what I said two weeks ago, about the WoW EULA and TOU being incredibly clear and well organized? Well, I am sorry Euro-WoWers, but y'all are not so lucky. I don't know who's in charge of drafting and publishing the European EULA and TOU, but they need to take some lessons in professionalism from the North American folks. I think the TOU author was attempting to make the document more readable, but his attempts at writing in the vernacular just seem amateurish. (As my Intellectual Property professor, an associate at the law firm that represents Blizzard, put it: question marks and exclamation points have no place in a contract.)

Now let's turn to the actual provisions of the European EULA and TOU. In many ways, it's very similar to the North American license we've already looked at. According to the EULA, Blizzard owns

All intellectual property rights in and to the Game, including without limitation the Locked Software, and all copies thereof (including, but not limited to, any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, any related documentation, and "applets" incorporated into the Game).

The Terms of Use are similar:
 

All title, ownership rights and intellectual property rights in and to World of Warcraft (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, "applets" incorporated into World of Warcraft, transcripts of the chat rooms, character profile information, recordings of games played on World of Warcraft, and the World of Warcraft client and server software) are owned by Blizzard Entertainment or its licensors. World of Warcraft is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws.

Just as they can post avatar info on wowarmory.com, they can post the same thing on the EU WoW Armory.

We also looked at Blizzard's ability to ban player accounts. This is also very similar to the North American release, but the phrasing of the policy is interesting.
 

Blizzard Entertainment reserves the right to terminate this Agreement without notice, if you fail to comply with any terms contained in these Terms of Use and/or the World of Warcraft End User License Agreement. In case of minor violations of these rules Blizzard will provide you with a prior warning of your non-compliance prior to terminating the Agreement. If, however, your behavior is utterly inacceptable, in particular if it endangers the gaming experience of other players, Blizzard is not required to provide you with such prior warning. A behavior is considered utterly unacceptable in case of a serious violation of the Terms of Use and/or the World of Warcraft End User License Agreement. Serious Violation would include a violation of Section III above. Also, note that in the event that Blizzard Entertainment terminates this Agreement for breach of these Terms of Use, any right to any and all payments you may have made for pre-purchased game access to World of Warcraft are forfeit, and you agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on your Account prior to any termination of this Agreement.

While this is substantially similar to the North American EULA, Blizzard is doing something slightly different here -- it now has an obligation to inform minor offenders of their non-compliance. This is an obligation not created in North America and is probably due to the difference in European unconscionability law.

On that subject, I should also point out a few other provisions inserted to help avoid findings of unfairness. Blizzard's liability is limited, but to comply with German and Austrian law, Blizzard can be held liable for death or serious injury that results from their gross negligence. (Don't ask me how this could happen.) The EULA and TOU point out that the contracts may change from time to time, at which point players are free to reject the terms and leave. Also, the various provisions dealing with unfairness always look at the totality of the contract in question. Contracts for bank accounts or business purchases are looked at differently than those of an entertainment such as WoW. Blizzard is probably just as secure in its European EULA/TOU provisions as its North American ones.

Well, that's been quite the info dump. Tune in next week when we start to wade into the leech filled swamp of gold farming and contract law.

Remember, this is an entertainment column, not legal advice. If you have a personal legal problem, seek out a personal lawyer. Any other questions about law or law school can be directed to lawbringerjd at aol dot com or @wowlawbringer on Twitter. Whether you get a response will depend on how bored I am in class.