This decision was about selling Diablo 3 gold in Germany on an own website. It is related to Demonbuddy, but could also help us with Honorbuddy.
We did not win this one, but the court accepted our point of view, and thats what they basically said:
The Bnet EULA, Bnet TOS and AH EULA doe not apply when you buy the boxed game in the store, based on § 305 II BGB. The box admittedly points to that there is an EULA/TOS and but now where they can be found and how they can be read before the purchase.
Demnach kommt der Kaufvertrag gemäß § 306 BGB ohne die Allgemeinen Geschäftsbedingungen zustande (vgl. BGH, Urteil vom 11.11.2009, Az. VIII ZR 12/08, Rz. 39- happydigits).
which basically means: Therefore the purchase is done without the general terms and conditions according to § 306 BGB.
The instructions on the packaging itself, which should be seen as Conditions in accordance with § 305 I BGB shall not be taken effectively.
Until here, everything is fine. But imagine that would be the conclusion of the court, and now look at the gaming industry, which is a multibillion business, such a court ruling would affect every single software product in Germany.
Therefore the court continues, and ignores the Usedsoft vs Oracle ruling rendered by the European Court of Justice on 3 July 2012.
Have they explained on multiple pages, why the ToS and EULA are not part of the contract, they now need only 1 sentence to say otherwise:
The Battle.net EULA, ToS and AH ToS are been, - also in the case that the user bought the boxed version - on the point of registration on the battle.net, accepted. <---- Look how easy that was.
And here we come to a visualized example how this is possible and should be possible by law, or at least the court of Hamburg believes that this is legal:
I buy a car, i pay for the car, i get the car keys. Now i want to leave the car dealership, but i am not allowed to, unless i sign that:
- i will always repair my car in their auto shop
- i will not paint it black or yellow-green
- and i can not take ppl with me called on the name of Hans
thats it basically.
Conclusions, the court saw what is going on, but they do not want or seem fit to follow up on the matter and declare that there is no conctract including EULA / ToS. If they did, that would have a great impact on the whole software industy selling boxed versions. Not that it did not had already -> Usedsoft vs Oracle, but still it will take time,
now next step is the court of appeals.
And some other news that we got today, the court of appeals in Hamburg gave us the trial date for the Honorbuddy and Demonbuddy appeals: 15th May 2014
Both will be on the same hearing.
We did not win this one, but the court accepted our point of view, and thats what they basically said:
The Bnet EULA, Bnet TOS and AH EULA doe not apply when you buy the boxed game in the store, based on § 305 II BGB. The box admittedly points to that there is an EULA/TOS and but now where they can be found and how they can be read before the purchase.
Demnach kommt der Kaufvertrag gemäß § 306 BGB ohne die Allgemeinen Geschäftsbedingungen zustande (vgl. BGH, Urteil vom 11.11.2009, Az. VIII ZR 12/08, Rz. 39- happydigits).
which basically means: Therefore the purchase is done without the general terms and conditions according to § 306 BGB.
The instructions on the packaging itself, which should be seen as Conditions in accordance with § 305 I BGB shall not be taken effectively.
Until here, everything is fine. But imagine that would be the conclusion of the court, and now look at the gaming industry, which is a multibillion business, such a court ruling would affect every single software product in Germany.
Therefore the court continues, and ignores the Usedsoft vs Oracle ruling rendered by the European Court of Justice on 3 July 2012.
Have they explained on multiple pages, why the ToS and EULA are not part of the contract, they now need only 1 sentence to say otherwise:
The Battle.net EULA, ToS and AH ToS are been, - also in the case that the user bought the boxed version - on the point of registration on the battle.net, accepted. <---- Look how easy that was.
And here we come to a visualized example how this is possible and should be possible by law, or at least the court of Hamburg believes that this is legal:
I buy a car, i pay for the car, i get the car keys. Now i want to leave the car dealership, but i am not allowed to, unless i sign that:
- i will always repair my car in their auto shop
- i will not paint it black or yellow-green
- and i can not take ppl with me called on the name of Hans
thats it basically.
Conclusions, the court saw what is going on, but they do not want or seem fit to follow up on the matter and declare that there is no conctract including EULA / ToS. If they did, that would have a great impact on the whole software industy selling boxed versions. Not that it did not had already -> Usedsoft vs Oracle, but still it will take time,
now next step is the court of appeals.
And some other news that we got today, the court of appeals in Hamburg gave us the trial date for the Honorbuddy and Demonbuddy appeals: 15th May 2014
Both will be on the same hearing.
Frankly.. I think they should just leave it alone. I think their biggest issue is that someone else is making money off of their game, which in essence isn't really true. Would they have made such an issue if HB was free?