TOS clarification

[Byrth]

The community at large has taken some liberties with the Terms of Service over the last few years. I was hoping for some clarification of policies that are either not enforced or don't mean what we think they mean. I recognize that nothing you tell us on these forums is legally binding, and would rather not wait for you to consult your lawyers before answering.

I will be pulling these from the Software License Agreement (http://support.na.square-enix.com/ru...1&tag=ff11soft), the User Agreement (http://support.na.square-enix.com/ru...1&tag=ff11user), and the POL member agreement (http://support.na.square-enix.com/ru...&tag=polmember), starting with the SLA and UA.

To the maximum extent permitted by law, you may not: (a) modify, reverse engineer, decompile, "hack," or disassemble the Licensed Software; (b) rent, lease, sublicense, distribute, or transmit the Licensed Software to any third party; (c) rent, lease, sell, distribute, transmit or otherwise transfer your User or other account-related information (including, but not limited to, your PlayOnlineID or password information) to any third party, or attempt to obtain the PlayOnline ID or password of any other User; (d) make any copy of or otherwise reproduce the Licensed Software; (e) infringe any copyright, trademark rights, or any other intellectual property rights of SEI or its licensors or, (f) use the Licensed Software to provide service bureau or time-sharing services (e.g., cybercafés), or for any other commercial purpose. The Licensed Software is for your personal use only and may not be copied, leased, or made available for use by others.

You acknowledge and agree that any authorized or unauthorized derivative works of the Licensed Software, or the Documentation, including any and all data that you generate through your use of the PlayOnline Service or the Licensed Software, are the sole and exclusive property of SEI. You hereby irrevocably assign to SEI all right, title, and interest in and to any and all such authorized or unauthorized derivative works created by you or on your behalf. SEI reserves its right, in its sole discretion, to request that any such derivative works possessed or otherwise controlled by you be delivered to SEI or be destroyed.

(d) Any intellectual property infringement or trade secret violation; this includes the unauthorized use, duplication, transmission, display, performance or distribution of any intellectual property relating to the Game or PlayOnline Service, or owned by any third party, or any other commission of any act of copyright, trademark, or patent infringement, trade secret infringement or misappropriation;

(g) Use of any cheat codes or cheat devices.

(h) In addition, SEI does not consent to or authorize any recording or reproduction of any communications between SEI and you. You may not record, reproduce or publish any communication with SEI. In addition to any other rights or remedies that SEI may have, you may also be subject to criminal and civil sanctions and fines.

Questions:
1) Many people post information about game mechanics that they've obtained through careful observation. Some, like Kaeko, consider this to be in direct violation of SLA Section 2.4. Is mathematical analysis of game mechanics a violation of the Terms of Service?
2) There are third party programs that interact with the game but don't appear to do any of the things listed as illegal in SLA Section 2.4a, like the unofficial windowers, which only serve to modify the game interface. However, these programs may be covered by UA Section 3.1g or POL Member agreement 4.4i. What is the official stance on such programs?
3) There are various downloads of Final Fantasy XI, complete with patches, that are faster than downloading the game and then patches sequentially, which has been known to take days. These downloads alone do not give anyone the ability to log in, as they still need to buy registration codes. Is this in violation of the Terms of Service section 2.4 b, d, and the final paragraph? Corollary: Why the heck don't you guys sell the fully patched version of the game?
4) UA Section 3.1h basically states that we're not able to document transactions with SE, which is of questionable legal merit as it's likely our right to record transactions with service providers. Still, it is common practice for people to post scripts of their discussions with GMs and SE chat reps in order for the community to help them. Is this a violation of the Terms of Service?

(c) SEI reserves the right to terminate PlayOnline Service in whole or in part for any reason with or without prior notice.
(d) SEI MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY PLAYONLINE ACCOUNT AT ANY TIME, WITH ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE.

5) This is less of a question, and more of a public-policy note for the future. This section seems to undermine the validity of the rest of your terms of service. This section states (in capital letters no less) that even if we're following the rules, we can be banned. The odds of banning in either case (following rules vs. not) are unclear, so this line actually decreases the perceived punishment for disobeying the rules. At a time, the odds of someone getting banned for having a lot of gardening mules was higher than the odds of someone getting banned for buying gil. If you can be banned for not violating the TOS and not banned for violating the TOS, why pay attention to the TOS?

(i) Use of any cheat codes or cheat devices; or
(j) Violating any Rule.

6) Section 4.4j is ambiguous. Rules are defined as "means any rules or other instructions applicable to the PlayOnline Service (or any aspect thereof) that may be posted on the Website and within the PlayOnline Service from time to time for Users to access and review." I'm not sure how we would find those rules or know about them. Was this an idea from a decade ago that never really got off the ground, or is it another catch-all like Section 3.4c/d?

SEI will terminate the account of any User who uses his or her account privileges to unlawfully transmit copyrighted material without a license, valid defense or fair use privilege to do so.

7) Does this section of the member's agreement mean we can be banned for posting screenshots? (not that it matters, due to section 3.1c/d)

PS. You have a spelling error in Article 3a of the user agreement. "playerfs"

[Kingofgeeks]

bump for great justice!

[Auriga]

Yes, lets have SE clear up things with the tos here. Square? hello??? time to come down and talk to the adults perhaps?

[Insaniac]

Props on reading the ToS.

[Heady]

Yes, lets have SE clear up things with the tos here.

I agree. Though most online games these days make me feel like I need my lawyer to decipher company favoring loopholes in their EULA's

[Auriga]

Some people do read such things an as usual when they have questions the topic
is either ignored or pushed towards another level of support which isn't able to
actually DO anything anyways.

[casual]

Thanks for taking the time to post this Byrth, I really hope a GM responds to clarify on these things.

[Cream_Soda]

I hope we are not banished to the shadow realm

[Rambus]

your question 1. I think that applays more to analyst to duplicate the game and using the formulas for other games.

I would really debate them in allowing no one mathematical analyst because that tells us what gear is worthwhile and not. Then if it is a violation where do you draw the line? saying when i have x/y/z gear i have 9 mp /tic vs 6 from refresh II?

Your 5. is a big issue of mine because I had a mule account banned and was called RMT. I was not RMT with my mule account; all it did was be a mule. so making mass trades with your self is auto RMT i guess.

There was also a line in the ToS that state you are not allowed to share an account, where do you draw the line with that when you have 2 people that may live together that use the same account but different characters?

I was told by GM that account sharing was ok and that it was only stated in ToS to make you think of account theft ( like sharing it with a friend then have them take it)

[Starcade]

The community at large has taken some liberties with the Terms of Service over the last few years.

In other news, grass is green, water is wet, and the sky is blue.

Until something is actually done about a lot of it, though...

I was hoping for some clarification of policies that are either not enforced or don't mean what we think they mean. I recognize that nothing you tell us on these forums is legally binding, and would rather not wait for you to consult your lawyers before answering.

I actually would rather wait to consult Square-Enix Legal. I think more than a few of the players (and more than a few of the violations mentioned) would be matters for Square-Enix Legal, for reasons I've gone into (with great return flamage) a number of times.

1) Many people post information about game mechanics that they've obtained through careful observation. Some, like Kaeko, consider this to be in direct violation of SLA Section 2.4. Is mathematical analysis of game mechanics a violation of the Terms of Service?

It would appear that you are discussing the likes of "parsing" ones damage output (basically, there are third-party programs players use to pull out how much damage they are doing under certain situations).

This would appear to be a direct violation of the TOS, not only because of the nature of the parser being a 3PP (third-party program), but the following pull-out from your quote:

including any and all data that you generate through your use of the PlayOnline Service or the Licensed Software, are the sole and exclusive property of SEI.

So that means that parsing your damage output is data you generate through the Licensed Software, and, hence, you are not entitled to use that for any purpose outside Square-Enix International's allowance.

So my answer by that would be YES -- Parsing is illegal.

If you are simply stating that the player is being diligent and going back to check his work through the chat logs, that might be another matter.

2) There are third party programs that interact with the game but don't appear to do any of the things listed as illegal in SLA Section 2.4a, like the unofficial windowers, which only serve to modify the game interface. However, these programs may be covered by UA Section 3.1g or POL Member agreement 4.4i. What is the official stance on such programs?

Let me change the question:

What is the stance that Square-Enix is willing to freaking enforce?

If I've heard it once, I've heard it a hundred times -- if Windower is ever banned and the players using it likewise, FFXI is finished.

People know my stance on that: If that's the case, sayanora to FFXI.

This is probably the single most-abused situation out there, because it not only appears to allow Windower through mob rule, but it also appears to allow many more malicious and blatant bots to flourish (some at great real-money profit to their creators!) to basically disallow certain players from ever experiencing much of the elite content in the game.

A bot is a cheat device -- so is any modification of the user interface over and above that which Square-Enix specifically provides to you. You could even say that Windower, in addition to being a 3PP, is a reverse-modification of the game.

On December 24, 2009, Square-Enix posted a statement to the playerbase with a zero-tolerance policy toward 3PP -- and, yet, Windower players are not touched. WHY??

If so many players are playing with Windower that the rule cannot be enforced, the rule needs to be terminated so that players like myself can operate on a level and legal playing field.

3) There are various downloads of Final Fantasy XI, complete with patches, that are faster than downloading the game and then patches sequentially, which has been known to take days. These downloads alone do not give anyone the ability to log in, as they still need to buy registration codes. Is this in violation of the Terms of Service section 2.4 b, d, and the final paragraph? Corollary: Why the heck don't you guys sell the fully patched version of the game?

Corollary answer is easy: The fully patched version of the game changes from time to time. Hell, you probably get three or four patches within a week of every major version update! That's why...

I could definitely see them coming up with some way to have a patched version online to buy from their own site!

As for the main question:

(b), violation, transmission to a third party (even if that third party is a receptacle of the files which others can (illegally) download).

(d), violation, as you have a reproduction of the Licensed Software (the only way you could not is not having the one of your own).

Final paragraph, violation, as one has no right to disseminate any of the software to other parties unless they are SEI.

Across the board violation.

(Now you see why Square-Enix admitting they read BG is a real problematic discussion for people like me who want the cheaters out?)

4) UA Section 3.1h basically states that we're not able to document transactions with SE, which is of questionable legal merit as it's likely our right to record transactions with service providers. Still, it is common practice for people to post scripts of their discussions with GMs and SE chat reps in order for the community to help them. Is this a violation of the Terms of Service?

Yes. You don't have a right to transmit that information, as it's proprietary information.

One of the biggest problems with the playerbase is their continued abrogation of the fact that they own nothing with respect to the game. Most violations of the TOS are basically efforts to circumvent that ownership by Square-Enix.

5) This is less of a question, and more of a public-policy note for the future. This section seems to undermine the validity of the rest of your terms of service. This section states (in capital letters no less) that even if we're following the rules, we can be banned. The odds of banning in either case (following rules vs. not) are unclear, so this line actually decreases the perceived punishment for disobeying the rules. At a time, the odds of someone getting banned for having a lot of gardening mules was higher than the odds of someone getting banned for buying gil. If you can be banned for not violating the TOS and not banned for violating the TOS, why pay attention to the TOS?

About the only real thing you can say to it is that it reduces the chances of you getting banned -- but you can still be banned for no reason whatsoever (and they probably don't even technically have to tell you!).

Of course, given what you've probably read, you could probably counter with a nasty letter to Square-Enix Legal and all Hell could break loose...

6) Section 4.4j is ambiguous. Rules are defined as "means any rules or other instructions applicable to the PlayOnline Service (or any aspect thereof) that may be posted on the Website and within the PlayOnline Service from time to time for Users to access and review." I'm not sure how we would find those rules or know about them. Was this an idea from a decade ago that never really got off the ground, or is it another catch-all like Section 3.4c/d?

From my read, it's a catch-all, including the TOS themselves. Square-Enix has done a very poor job, IMHO, of saying what the rules are -- and, then even with the ones they do tell you, enforcing them.

It brings not only every player action into question (see the earlier discussion from the "raise min level Abyssea to 70" mega-thread), it brings into question whether certain players and groups are allowed preferential treatment by Square-Enix.

7) Does this section of the member's agreement mean we can be banned for posting screenshots? (not that it matters, due to section 3.1c/d)

Depends on how Square-Enix Legal looks at "fair use". Posting them to blogs probably doesn't get you touched, because "fair use" under Copyright Law allows excerpting, at the least, for purposes of critique and commentary.

I'll be interested in any replies from Square-Enix.