Everything you need to know about video game EULAs

An end user licence agreement (EULA) is a legal document setting out the basis upon which a person may use software. In this post, I look at the EULA-related issues affecting video game developers and publishers. The focus is on smaller and newer businesses, but much of the discussion is relevant to established businesses too.

The key functions of a typical EULA in the video games context are:

• to set out the basis upon which customers and players may use the game and associated materials;
• to ensure the publisher has the rights it needs to protect its interests in the game;
• to manage and limit the potential liabilities of the publisher with respect to the game;
• to facilitate the compliance of the publisher with consumer protection law.

EULAs are often contractual but need not be: it’s possible to license software and disclaimer liability without entering into a contractual relationship. That said, a contractual relationship may allow a game publisher to establish stronger rights, and most EULAs are or purport to be contractual.

Now you know what a EULA is about, how do you go about getting one for your game?

EULA ways and means

A game publisher will typically have four options when it comes to obtaining a EULA:

• ask a lawyer to prepare the EULA;
• adapt and use a commercial template;
• rely upon distribution platform documentation; or
• adapt and use a hand-me-down document.

The best option, if money allows, is to ask a properly qualified and suitably experienced lawyer to prepare the EULA. The money caveat is, however, a significant one. You might expect to pay something in the range £1,000 to £10,000 for a good UK lawyer to prepare a computer game EULA. This may not be commercially feasible for small / new indie publishers. If you do have the budget for a specialist lawyer, then ideally you will want a lawyer with specific experience of video games – not an IT law generalist, still less a commercial all-rounder.

The next option is to use a template. The main advantage here is cost; but there are some significant disadvantages. You will have to do the work of adapting the template to fit with your game and business. Make no mistake, when you take on the work of adapting a template, you are acting as your own lawyer. You are responsible for ensuring that the EULA enables you manage legal risk appropriately and to comply with the law and any applicable distribution platform T&Cs. On the other hand, while the law can be complex, contracts are not usually so complex that they are entirely obscure to the conscientious layman. Certainly, they are not as complex as video games. If you plan to use a template, you could do worse than consider the computer game EULA templates we publish over on https://docular.net: see the end of this post for more details of these templates. In general terms, more skill will be needed to prepare a EULA that has multiplayer modes, features user-generated content or inter-user communications, or facilitates modding.

Some distribution platforms – for example Google Play and Apple’s iTunes Store – provide a third option: default licensing terms for games. These can be a good low-effort option, but you must review them carefully to ensure you are happy with the details and bear in mind that they are not drafted with your interests in mind. Generally, they will have been prepared to reflect the needs and wishes of the platform operator; in the detail, that may mean privileging customer interests over developer and publisher interests. If the platform in question doesn’t focus on games, then the EULA may not address game-specific issues; and if your game has any uncommon features that have ramifications for the EULA, these are unlikely to be addressed in a default distribution platform document. Bear in mind that if you are distributing via multiple platforms, you may end up with a multiplicity of different licensing terms applying to your game.

Last and least, you could use a hand-me-down EULA from another publisher or developer. This might be sensible approach where budgets are very tight, the original game and the new game are functionally and commercially identical and you can verify that your use of the document will not infringe copyright. In practice, it may be difficult to verify the provenance of a hand-me-down document, and the last thing you want to do when seeking to manage risks is to create a new and potentially serious one.

Key issues when drafting a video game EULA

If you do decide to prepare the EULA without consulting a lawyer, then you should check that the template or other document you start with covers most of the issues. The more it covers, the less work you’ll need to do, and the less opportunity you’ll have to introduce errors.

Some of the issues you will have to deal with are as follows.

Scope of licence – What is the customer permitted to do with the game, and what is the customer not permitted to do? Take care when writing licensing terms that they will continue to protect the game as technology changes. Also, there are limits upon the limits you can include in a licence. For example, blanket resale prohibitions may be prohibited

Online features or services – The introduction of online features and services creates four main areas of risk. First, whilst a publisher will usually make every effort to maintain service availability, unplanned downtime is always a possibility. EULAs should avoid adding legal liabilities to the customer relations issues that usually arise out of downtime. Second, as Activision recently discovered with Guitar Hero Live, the closing of online services can result in claims for refunds for the base game. EULAs should expressly exclude such claims. Third, if the game enables users to upload text, graphical, audio, video or other content to the publisher’s or any third party’s servers, the EULA should both set out the basis upon which that content may be used by the publisher and prohibit at least unlawful content. Fourth, online services will often involve the storage and processing of player personal data. Here a privacy policy, rather than EULA, should contain the information disclosures required by data protection laws (such as the General Data Protection Regulation in the EU). Don’t forget that the publication of a privacy policy does not exhaust your obligations under data protection law. The controversy over Take-Two’s EULA amendments early in 2019 shows, many gamers do take their data protection rights seriously.

Multiplayer – If the game includes multiplayer modes and features, you may need to include additional provisions in the EULA to account for those modes and features. For example, if player-to-player communications are permitted, you will want to prohibit the communication of any unlawful content and may want to prohibit the communication of offensive content and/or profanities, even where not unlawful. Similarly, in multiplayer games with competitive elements, the EULA should prohibit cheating, both in general in with respect to particular acts of cheating, such as using aimbots or other client-side software assistants. Of course, rules against cheating are one thing: enforcing those rules is quite another, as Epic Games can attest.

DLC / FLC – If you are expecting to sell DLC, or provide additional free content to players, the EULA should take account of that. Usually, the principal licence grant will expressly cover DLC, so that a separate licence isn’t necessary. If you are selling DLC in-game then, even if you didn’t sell the game originally, you will need to account for consumer protection laws in your contract of sale for the DLC. Under English law at the time of writing, you will want to take particular account of the Consumer Rights Act 2015 (see this summary from Eurogamer) and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The consumer rights issued may be covered in the EULA, or in a separate document. If any of your DLC is going to take the form of a loot boxes, then you’ll want to familiarise yourself with the current positions of national gambling regulators in this connection.

Mods and editing tools – If your game’s design allows, it may be modded whether you want it to be or not. Many modern EULAs expressly allow modding and many developers encourage and facilitate modding. If you want to exercise a degree of control and influence over modders, then it usually makes sense to include express modding rights in the EULA, along with appropriate limitations and prohibitions. For example, you may want to allow modding in relation to the main game but prohibit modding of the demo. You may, like Mojang, want to allow non-commercial mods but prohibit the sale or mods. In some cases, editing tools are provided by PC game developers to facilitate the process. These should be subject to an express licence, which can be incorporated into the EULA. For an interesting analysis of Blizzard’s approach to modders and modding in the context of US law, see this Polygon article from lawyer Mona Ibrahim.

Content creators and brand licensing – Fan sites and fan-made content are a crucial element of the marketing of many games. From the perspective of intellectual property law, there are two different rights in play here. Content creators and fans may want to use copyright-protected material from the game itself, but they may also want to use logos and other brand materials that are protected by trade mark rights (often in addition to copyright). Some developers and publishers will make available additional content for use by fans. In all these cases, an express but limited licence set out the EULA will to give content creators and fans clear rights to use the materials, while protecting the rights of the developer / publisher.

Distribution platforms – Unless you are entirely responsible for distribution, you will need to take account of the terms and conditions of distribution partners and platforms. You should check the extent to which the terms and conditions that govern your relationship with the distribution platform impact upon the drafting of the EULA. For example, distribution platforms may require that you subscribe to their refund policies, and those policies may affect the text of the EULA. As noted above, some platforms will provide default EULAs, and you may be prohibited from putting customers in a worse or weaker position than they would be under the default EULA.

Approaches to writing a EULA

Whilst relatively few gamers will read a EULA before (or after) installing a game, some will, and simply maximising the publishers’ rights while minimising its liabilities may lead to an unwanted lesson in customer relationship management, a lesson that EA amongst others has enjoyed. In any case, consumer protection law may limit the extent to which a publisher can rely upon an extremely unbalanced EULA. For these reasons, I prefer a balanced approach to drafting, only heavily favouring the publisher’s interests where there is a real and material risk in play.

Docular templates

We publish a range of EULA templates for game developers and publishers on our Docular website, including this free one:

https://docular.net/documents/template/5675/free-video-game-eula

This covers the basic licensing requirements of a stand-alone game lacking online or multiplayer features, where transactional issues will be dealt with elsewhere, for example in the terms and conditions of distribution platform providers. This short-form version of the template EULA also comes in paid (sans attribution / credit) form.

The standard-form version of the templates contains everything that is in the short-form version, and in addition covers online services, user-generated content, acceptable use, support, equitable relief and direct purchases from the licensor.

The long-form EULA, likewise, is an extended version of the standard EULA, with extra clauses relating to mods, editing tools, digital credits and feedback.

Any questions

If you have any comments on this post or any questions about preparing a video game EULA, please feel free to ask below.