Remember, Electronic Arts Won't let you Sue Them, Either

While Sony's new "don't sue us" terms of service are terrible, let's not focus just on Sony. Other companies are now free to do the same thing.

One example: Electronic Arts.

If you scroll down to the bottom of EA's most recent terms of service, which includes both accounts made for the publisher's online services (like Madden and FIFA's online play) and its new Origin PC platform, you'll see sentences like this:

By accepting these terms, you and EA expressly waive the right to a trial by jury or to participate in a class action.

YOU UNDERSTAND THAT BY THIS PROVISION, YOU AND EA ARE FOREGOING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

YOU AND EA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

That's EA's caps, mind you, not mine. It means that nearly all kinds of court action possible against EA, from class action suits to individuals suing the company in a court of law, are now off the table for most customers. Only claims involving intellectual property, theft and piracy can be taken to court, and in case you haven't noticed, they'd mostly involve EA taking other people to court, not the other way around.

These new terms have been drafted for exactly the same reason as Sony's (and many other non-gaming companies, like insurance firms, in recent times): because unlike courts, whose outcomes are decided by juries (who can by sympathetic towards consumers battling multinational corporations), decisions made via private arbitration often find in favour of businesses, and even when siding with consumers offer relatively small payouts. You can't appeal the findings of a private arbitration hearing, nor is there an independent or public means of reviewing an arbitrator's decisions. They are also designed to be conducted privately, out of the public eye.

Basically, just like Sony's, it's a move designed to take a lot of your power as a consumer out of your hands, and make it easier for big businesses like EA to simply shrug off unhappy customers. It also prevents large groups of customers banding together to take a unified stand against the company.

Note that the "no sue" stuff only applies to you as a user of EA's services. It has absolutely no power to stop lawsuits like that filed by Activision against EA over the "defection" of the creators of Call of Duty, or the large class action suit brought against the publisher over its NCAA football games.

You can opt out of EA's ToS by sending the company a letter, the catch being it must be received within 30 days of a new terms of service being issued. Since the last one was updated on August 25, unless you want to courier the thing, you're going to miss out on this round.

Like Sony's terms of service, EA's don't apply to everyone; in this case, if you live in "Quebec, Russia, Switzerland and the Member States of the European Union", you're exempt. We're checking with EA to see if that includes Australia and New Zealand as well.

It'll be interesting to see, in the wake of the US Supreme Court's decision on AT&T (and of course Sony and EA's new stance) how many companies follow this move. Microsoft's latest terms of service, dated July, make no mention of forced arbitration, nor does Steam's, but Blizzard's (dated June) come awfully close.

As with Sony, I'd urge everyone not already exempt to send in a letter opting out of these terms of service. Removing your right to fight back in the courts is a dangerous precedent for these companies to set, and the more people who send in letters, the clearer a message it will send that this isn't something that can be taken away so easily.

ELECTRONIC ARTS TERMS OF SERVICE [EA]


You can contact Luke Plunkett, the author of this post, at plunkett@kotaku.com. You can also find him on Twitter, Facebook, and lurking around our #tips page.