Bossland GmbH sued Blizzard (READ) and Court News July 2015

[Xarian]

loll.... "Where I'm from" does not make the slightest difference. When you sign Blizzard's TOS it makes it VERY clear that you will bound by U.S. law which firmly establishes the US as lex loci (look it up.).

What you're saying is the equivalent of: country A legislates that all citizens of country A should not pay for goods delivered by any other country. A person from Country A then signs a contract for goods delivered with someone from Country B, agreeing that he will be bound by the laws of country B, and then points to the laws of country A as a reason not to pay. Sorry mate - you're wrong on this one.

Actually, he isn't actually wrong. The ToS is a contract between the player and the company, however, the ToS is only a baseline reference.

For a business to sell a game, or a service, or establish a business within a country that is not its origin, it must abide by said countries law. An example of this, is that in the US you can do refer a friend and gain pyramid scheme bonuses in WoW. If you are from any scandinavian country and attempt to sign up for refer a friend, you are told you cannot because you are from these countries. This is not a choice of Blizzard, this is because these sort of reward programs are simply illegal in scandinavian countries.

The same applies to the terms of service, if Blizzard believes that you as a player broke said terms of service, they will have to look at legal options within the country of residence of the player. You CANNOT apply foreign law to any player that does not reside in the same country.

This is also explicitly mentioned in the Blizzard terms of service in more then one place, here are a couple of exempts for your reading;

For our customers who access the Service from Canada, Chile, Mexico, Argentina, Australia, Singapore, Thailand, or New Zealand, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such an event, shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof. If you access the Service from New Zealand, and are a resident of New Zealand, The New Zealand Consumer Guarantees Act of 1993 (“Act”) may apply to the Game and/or the Service as supplied by Blizzard to you

Those who choose to access the Service from locations outside of the United States, Canada, Australia, Singapore, or New Zealand do so on their own initiative contrary to the terms of this Agreement, and are responsible for compliance with local laws if and to the extent local laws are applicable.

It is however also very important to note that a terms of service is created by a company and its lawyers, it is not set forth by a judge and as such its words and agreements should NOT be taking as factual and lawfully correct, as such any agreement that straight up tells you "You may this, and this, and if you dont, then this" should not be accepted as factural consequences, as the mentioned consequences may very well not be legal locally and even in remote countries.

 

[nooblet]

loll.... "Where I'm from" does not make the slightest difference. When you sign Blizzard's TOS it makes it VERY clear that you will bound by U.S. law which firmly establishes the US as lex loci (look it up.).

What you're saying is the equivalent of: country A legislates that all citizens of country A should not pay for goods delivered by any other country. A person from Country A then signs a contract for goods delivered with someone from Country B, agreeing that he will be bound by the laws of country B, and then points to the laws of country A as a reason not to pay. Sorry mate - you're wrong on this one.

Terribly sorry old bean but i'm bound by my country laws not the yanks.

@Joachimb TOS does not give anyone the right to do something that is illegal weather you sign it or not.

 

[Croga]

loll.... "Where I'm from" does not make the slightest difference. When you sign Blizzard's TOS it makes it VERY clear that you will bound by U.S. law which firmly establishes the US as lex loci (look it up.).

What you're saying is the equivalent of: country A legislates that all citizens of country A should not pay for goods delivered by any other country. A person from Country A then signs a contract for goods delivered with someone from Country B, agreeing that he will be bound by the laws of country B, and then points to the laws of country A as a reason not to pay. Sorry mate - you're wrong on this one.

As long as a company specifically markets to a certain country, they will be bound by the law of that country if someone from that country enters into a contract with them.

Blizzard specifically markets to the Netherlands. I am from the Netherlands. As soon as I buy something from Blizzard, the contract is bound by Dutch law, not US. There was a meeting of the minds under Dutch law and so the EULA and TOS are bound by Dutch law.

 

[Filewalker]

Europe is a special case for itself when it comes to Law. And Blizzard Europe build his EU HQ in France. For Germany for example it is quite simple: If you're not a Company, then every Deal you do with an European Company (Blizzard EU is) you can sew that Company by German Law. And for those "Special Guys" which wanna say now: "Yeah, but that doesn't apply to France/Netherlands/etc." let me say to you, you're wrong. In Europe, for every State that is assigned to the European Union the territorial principle will be applied. Means: If that company has lost a lawsuit f.e. in Germany, the France Law System has to fullfill the Order of the Court. I hope you get the point by my explanation I'm not that into English

 

[tichy]

Europe is a special case for itself when it comes to Law. And Blizzard Europe build his EU HQ in France. For Germany for example it is quite simple: If you're not a Company, then every Deal you do with an European Company (Blizzard EU is) you can sew that Company by German Law. And for those "Special Guys" which wanna say now: "Yeah, but that doesn't apply to France/Netherlands/etc." let me say to you, you're wrong. In Europe, for every State that is assigned to the European Union the territorial principle will be applied. Means: If that company has lost a lawsuit f.e. in Germany, the France Law System has to fullfill the Order of the Court. I hope you get the point by my explanation I'm not that into English

Finally someone who gets it...a lot of people parading around as if they've studied private international law but seriously do not have a clue what they're talking about.

Rome I Article 4(1) is effectively a European Union statute and it clearly states:

Article 4

Applicable law in the absence of choice

1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:
(a) a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;
(b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence;


Whether you are in Germany, or the Netherlands or wherever else in the EU, you are bound by the law of the country of the seller, not the buyer. Regardless of whether you do not like yanks, or if you're a proud citizen of your home country. No-one cares. This is pretty standard under lex loci and would apply to most countries even outside the EU. And furthermore this is in the case of absence of choice. In your case when you buy a blizzard product and accept the TOS you have made a very specific choice to be bound by US law - at least since the last time I read the T.O.S. I'm pretty sure there are quite strongly worded statements about jurisdiction.

In relation to the comments about contracts being bound by the law of the country they are made in - this is true but completely irrelevant. A person making a contract in the U.S. cannot make a contract inconsistent with other private / public laws - i.e. I cannot make a contract to kill someone because that is against existing criminal law and therefore void. A contract governs the rights and obligations between parties as long as those rights and obligations are not in contravention of other existing laws, parties are free to contract under whatever terms, and under whatever legal system they see fit.

 

[anubite]

interested to hear an official statement on these forums. but for legal reasons may not be able too.

 

[anubite]

Interesting to see how this one plays out. The factor is this time it is in an U.S court.

 

[Croga]

Article 4

Applicable law in the absence of choice

1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:
(a) a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;
(b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence;

Funny quote, completely useless in this case, however since it's superceded by Article 6 in case of a contract between a strong party and a weak party (in this case a company and an individual respectively).

Whether you are in Germany, or the Netherlands or wherever else in the EU, you are bound by the law of the country of the seller, not the buyer. Regardless of whether you do not like yanks, or if you're a proud citizen of your home country. No-one cares. This is pretty standard under lex loci and would apply to most countries even outside the EU. And furthermore this is in the case of absence of choice. In your case when you buy a blizzard product and accept the TOS you have made a very specific choice to be bound by US law - at least since the last time I read the T.O.S. I'm pretty sure there are quite strongly worded statements about jurisdiction.

Nope. Article 6 specifically states that in case of a contract between a strong and a weak party, the jurisdiction, in absence of choice, lies in the place of residence of the weak party. This cannot only be changed by choice, by the weak party. The strong party cannot force a change in this by any means. The TOS being one such means. Ergo: Even though the Blizzard TOS states that the contract falls under US jurisdiction, this statement is void by Rome I, Article 6.

(for completeness

Article 6
Consumer contracts​

1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:[TABLE="width: 100%"]
[TR]
[TD](a)[/TD]
[TD]pursues his commercial or professional activities in the country where the consumer has his habitual residence, or[/TD]
[/TR]
[/TABLE]
[TABLE="width: 100%"]
[TR]
[TD](b)[/TD]
[TD]by any means, directs such activities to that country or to several countries including that country,[/TD]
[/TR]
[/TABLE]
and the contract falls within the scope of such activities.2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.

(so to be more precise; In my case; yes, the contract falls under US law but only if US law is better for me than Dutch law)

 

[tichy]

"Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3". I'm pretty sure this does not mean the contract is void if it was between a "strong party and a weak party"

I agree on the effect of article 6 in changing the starting point, i.e. the presumption of which law applies. But I don't think the rider on Article 6 about "the result of depriving the consumer of the protection afforded to him by provisions..." has the effect of changing which law applies int he case of choice. This to me seems to appeal to law about consumer protection not about INTERPRETING the terms of the contract (which would be all that matters in a case about contract law). It also doesn't detract from the choice of law, it merely says that whatever the terms of the contract, they are to be ineffectual where the detract from existing protections afforded to the customer.

 

[tichy]

For the record article 3 is pretty explicit about freedom of choice of law :

CHAPTER II
UNIFORM RULES

Article 3

Freedom of choice

1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.
2. The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice made under this Article or of other provisions of this Regulation. Any change in the law to be applied that is made after the conclusion of the contract shall not prejudice its formal validity under Article 11 or adversely affect the rights of third parties.
3. Where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement.
4. Where all other elements relevant to the situation at the time of the choice are located in one or more Member States, the parties' choice of applicable law other than that of a Member State shall not prejudice the application of provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement.
5. The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles 10, 11 and 13.

 

[Sweetangel88]

One Question " Zwetan Letschew " posted on Some Websites like : http://mein-mmo.de/blizzard-verklagt-bot/ (in German) or Torrentfreak
What will happen if Bossland win vs Blizzard ?.

Cause the Process will end Summer 2016.
Is than Botting Legal in Germany or in All EU Countrys ?.

 

[cham15]

Please tell me what will happen if Bossland will register new "firm/business" in Kingdom of Swaziland? Maybe then Bossland will be able to open full bot options for germany too? I am curious :>

 

[tichy]

I don't think botting is illegal. It is just potentially in contravention of the terms of service of many Blizzard games. That means it's within Blizzard's discretion to bring down the banhammer on anyone who bots.

Whether or not Bossland has contravened the law in making and distributing the buddybots, I think, is the subject of most of these hearings. This is a much much more complex and interesting legal question.

 

[Croga]

"Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3". I'm pretty sure this does not mean the contract is void if it was between a "strong party and a weak party"

True. The contract stands and it falls under US law, except where US law is detrimental to the weak party. In that case, that passage of the contract simply does not fall under US law.

I agree on the effect of article 6 in changing the starting point, i.e. the presumption of which law applies. But I don't think the rider on Article 6 about "the result of depriving the consumer of the protection afforded to him by provisions..." has the effect of changing which law applies int he case of choice. This to me seems to appeal to law about consumer protection not about INTERPRETING the terms of the contract (which would be all that matters in a case about contract law). It also doesn't detract from the choice of law, it merely says that whatever the terms of the contract, they are to be ineffectual where the detract from existing protections afforded to the customer.

The line specifically says that any choice that differs from the starting point cannot be worse for the weak party than that starting point.
i.e.
I am Dutch. I am a consumer.
If I enter into a contract with a business, and there is no specific choice of jurisdiction, the contract will default to Dutch jurisdiction.
If the contract says that it falls under US jurisdiction, the contract will fall under US jurisdiction.
if, however, the contract includes clauses that, under US jurisdiction, are worse for me than under Dutch jurisdiction, those clauses will drop back to the default.
UNLESS that business does not market to Dutch people or the Dutch market.

And no, the terms of the contract are not the only thing that matters since the terms of the contract cannot supercede binding law. In this case, there would be Dutch binding law that will supercede the contract and thus render those passages of the contract void. These Dutch laws would afford protection to the customer under the default option and are thus in effect even if the contract says the default option isn't used.

 

[tichy]

True. The contract stands and it falls under US law, except where US law is detrimental to the weak party. In that case, that passage of the contract simply does not fall under US law.

The line specifically says that any choice that differs from the starting point cannot be worse for the weak party than that starting point.
i.e.
I am Dutch. I am a consumer.
If I enter into a contract with a business, and there is no specific choice of jurisdiction, the contract will default to Dutch jurisdiction.
If the contract says that it falls under US jurisdiction, the contract will fall under US jurisdiction.
if, however, the contract includes clauses that, under US jurisdiction, are worse for me than under Dutch jurisdiction, those clauses will drop back to the default.
UNLESS that business does not market to Dutch people or the Dutch market.

And no, the terms of the contract are not the only thing that matters since the terms of the contract cannot supercede binding law. In this case, there would be Dutch binding law that will supercede the contract and thus render those passages of the contract void. These Dutch laws would afford protection to the customer under the default option and are thus in effect even if the contract says the default option isn't used.

Please educate me on why it then says " have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law" - are you telling me that every rule of contractual interpretation cannot be derogated from by agreement by virtue of the law? Why then have this rider at all? Shouldn't it just say "have the result of depriving the consumer of the protection afforded to him by virtue of the law"? Or do European lawmakers have a habit of being unnecessarily verbose for absolutely no reason.

 

[Croga]

Please educate me on why it then says " have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law" - are you telling me that every rule of contractual interpretation cannot be derogated from by agreement by virtue of the law? Why then have this rider at all? Shouldn't it just say "have the result of depriving the consumer of the protection afforded to him by virtue of the law"? Or do European lawmakers have a habit of being unnecessarily verbose for absolutely no reason.

That's not limited to European lawmakers, that's a general rule for all lawmakers. Who knows why the law is this verbose, apparently lawyerspeak demands it.

 

[tichy]

That's not limited to European lawmakers, that's a general rule for all lawmakers. Who knows why the law is this verbose, apparently lawyerspeak demands it.

Definitely not in Australia! Down here if there are words said, then they HAVE to be given meaning. I don't pretend to know a lot about the law in the EU or the civil system in general but if that's what it means - that is incredibly poorly written.

 

[nytegeek]

Definitely not in Australia! Down here if there are words said, then they HAVE to be given meaning. I don't pretend to know a lot about the law in the EU or the civil system in general but if that's what it means - that is incredibly poorly written.

Are you kidding? Australia has been widely known for passing some of the most daft legislation and resolutions ever. Plain English or not some of it has been absolutely ridiculous.

 

[ShadowMonkey]

Man, laws should really just be "as they are written" to avoid all these stupid legal shenanigans.

 

[Kevin Spacey]

strange - my posts dissapered...