Borderlands Adds Spyware In New User Agreement

As is you needed another reason to hate this game.

The hit series of video games Borderlands has just recently changed its user policy, and those that took the time to fully read it found that they would be forking over private information, along with their freedom to express themselves as they see fit.

When you read a videogame’s user agreement, make sure you question why you have to, and make sure not to look over how they openly obtain information on you they don’t need. This entire fiasco is why you consistently see smaller indie developers or teams rising to the top of popularity while major studios are pleading with their player base so they don’t go bankrupt. It is a massive overstep in authority that is not only making modern games unbearable, but is now affecting older titles that we still love and enjoy.

This video is what brought the situation to my attention, along with posts from users like CarlRJ who stated on Reddit:

I got a similar dialog box a few days ago on BL2. Part of the first page of the text says:

Please read this Agreement carefully, and take particular care when reviewing these sections:

Section 6 - User Rules.
When using our Services, you have the obligation and responsibility to help us ensure that Services are inclusive and respectful for all users and our employees and contractors. You must follow the User Rules in Section 6, while using the Services, Virtual Items, or your Account.

Section 17 - Mandatory Arbitration.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND A WAIVER OF CLASS ACTION AND JURY TRIAL RIGHTS FOR ALL USERS RESIDING IN THE UNITED STATES AND ANY OTHER TERRITORY OTHER THAN AUSTRALIA, SWITZERLAND, THE UNITED KINGDOM, OR THE TERRITORIES OF THE EUROPEAN ECONOMIC AREA.

Reading the rest of these comments you will find exactly what I found, that every Borderlands game to date has had inconsistent and constantly changing EULA changes that you need to keep accepting in order to play the game you already paid money for, whether it be recently or a long time ago. The reason they’re getting away with this so far? Simple, you don’t actually own the game.

Essentially, modern video games are purchased through special online licenses that give you permission to play the game through 17 U.S.C. § 109, or the “First Sale Doctrine.” This gets certified under the publishers End-User License Agreement (EULA), a legal contract between a software provider and the individual or entity using the software. This agreement outlines the terms and conditions under which the software can be used, and in most circumstances is the first thing you agree to before playing the game. However, that’s where my issue stands. These types of agreements are shrinkwrap contracts, meaning they come in the package you buy without your knowledge until after the fact.

Many publishers attempt to get around this by simply claiming that its EULA is protected, but the enforceability of an EULA depends on several factors. One major factor being the court in which the case is heard, as some courts that have addressed the validity of the shrinkwrap license agreements have found some EULAs to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C. There are very few protections a publisher has once this has been called out, with the only notable thing I found being the Uniform Computer Information Transactions Act (UCITA), which has only been passed in two states, Virginia and Maryland.

UCITA would explicitly allow software makers to make any legal restrictions they want on their software by calling the software a license in the EULA, rather than a sale. This would therefore take away the purchaser's right to resell used software under the first sale doctrine. Without UCITA, courts have often ruled that despite the EULA claiming a license, the actual actions by the software company and purchaser clearly shows it was a purchase, meaning that the purchaser has the right to resell the software to anyone.

Take-Two Interactive is attempting to farm information off of their players through shrink wrapped contracts that the average gamer simply doesn't read. Just as a reminder for those that don’t know, Take-Two Interactive bought Gearbox sometime back, the studio behind making all of the Borderlands games, just so you see the pipeline.

I pulled this directly from Take-Two Interactive, and I need everyone reading this to ask themselves why a video game company would possibly need this much information on their players:

“The type of information we collect depends on how you use the Services. Generally, we collect the following information:

• Identifiers / Contact Information: Name, user name, gamertag, postal and email address, phone number, unique IDs, mobile device ID, platform ID, gaming service ID, advertising ID (IDFA, Android ID) and IP address

• Protected Characteristics: Age and gender

• Commercial Information: Purchase and usage history and preferences, including gameplay information

• Billing Information: Payment information (credit / debit card information) and shipping address

• Internet / Electronic Activity: Web / app browsing and gameplay information related to the Services; information about your online interaction(s) with the Services or our advertising; and details about the games and platforms you use and other information related to installed applications

• Device and Usage Data: Device type, software and hardware details, language settings, browser type and version, operating system, and information about how users use and interact with the Services (e.g., content viewed, pages visited, clicks, scrolls)

• Profile Inferences: Inferences made from your information and web activity to help create a personalized profile so we can identify goods and services that may be of interest

• Audio / Visual Information: Account photos, images, and avatars, audio information via chat features and functionality, and gameplay recordings and video footage (such as when you participate in playtesting)

• Sensitive Information: Precise location information (if you allow the Services to collect your location), account credentials (user name and password), and contents of communications via chat features and functionality.”

Seem a bit much? That's just the light way they put it.

This is a Steam specific notification most users got:

That user post I listed in the beginning defined the specifics of their arbitration clause as well. An arbitration clause is a provision in a contract that outlines how disputes will be resolved outside of a traditional court litigation. It essentially acts as an agreement by the parties to resolve disagreements using an arbitrator instead of a judge or jury. So their hidden contract is enforceable outside of the law, which places you at their mercy. I'm so confused, the Borderlands three main villains have an EULA agreement that revokes your rights as a joke in the story. Is this not the peak of corporate idiocy? Why is this information something they need on top of limiting our speech and modifying their agreements after we already paid for the game? Is that not incredibly illegal and challengeable in a court of law? I think it is.

United States District Court, District of Kansas 104 F. Supp.2d 1332 (2000), Klocek v. Gateway: In Klocek v. Gateway, Inc., William S. Klocek filed a lawsuit against Gateway, Inc. after purchasing a Gateway computer. Klocek alleged that Gateway made false promises regarding technical support and claimed breach of contract and warranty, arguing that the computer was incompatible with standard peripherals and internet services. Gateway sought to dismiss the case, asserting that Klocek's claims were subject to arbitration under their Standard Terms and Conditions, which were included with the computer upon delivery.

You see that end bit there? Sounds alot like an EULA doesn’t it? That’s because this company had a shrinkwrapped contact inside the product that you had to agree to because you bought the product, not the other way around. Now of course the court sided with the consumer, Klocek, ruling that Gateway failed to prove Klocek explicitly agreed to the arbitration clause in their Standard Terms and Conditions that they knowingly snuck into the box. This case can be used, in my educated opinion, to push back on these invasive end user agreements that are never uniform or consistent. We need to keep these companies in check, before they start to check on us … more.

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L Grey is a gamer, researcher, and Chapter and Verse contributor.