Two thoughts re: whether we really are in a post IP world when it comes to video games.
1) Many minors play video games. I don’t think a plaintiff would have much luck enforcing a EULA against one. Particularly relevant in the technology context since I’m sure there are many teenage programmers out there who have the skills necessary to modify or use games in ways that publishers and developers may not like.
2) Privity. If I sit down and play a game that’s already been installed on Jon’s computer, I’ve agreed to nothing vis-a-vis the publisher/developer. The EULA is unenforceable against me.
In both cases 1) and 2), IP, however, would apply.
Follow
Totally agree that the lack of enforceability of EULA’s and the like against minors and “guest players” constitutes a huge hole.
In particular, minors. Guess it’s all a matter of perspective but that makes the whole emphasis on user agreements seem even stranger in a video game context when such a large population of users are known to be beyond the reach of an unenforceable agreement. Feels to me like piling that fiction on the cumulative fictions that these agreements are read; are understood; are even necessary.
jon
in addition to issues of minors, I wonder how realistic user agreements are in establishing who actually agreed where there are multiple users of a video game/ computer. once the user agreement has been acknowledged by me, what happens when my kids or spouse play the game?