When you start up a new game you usually have to agree to some Terms of Service or End User License Agreement before you can start playing. These documents are often abbreviated as TOS or EULA and are a pair of legally binding contracts that you agree to when you start using most software these days. Most people just press accept and move on, not really thinking about what they’re agreeing to. After all, these can be lengthy documents, as visualized by Dima Yarovinsky who visualized the TOS of companies like Facebook, Snapchat, Instagram, and Apple.
But what are they? What’s the difference between them? If you’re a developer, should you have these documents prepared for your game? Let’s dive in and take a look.
TOS and EULA are Legally Binding Contracts with Your Users
The first thing to understand before understanding what these documents are, what makes them different from one another, and which ones you as a developer should be using is that these are contracts. Contracts are a two-way agreement. The game is provided to the user, and the user agrees to the EULA and TOS.
In order to have a contract, there has to be what is called mutual assent. In other words, the user must actually accept the terms of the contract. If the contract is never accessed, it can’t be binding on the user. Luckily, modern platforms like Steam make this easy and integrate it directly into the installation process without needing to be a part of the game itself. Barring that, it may be necessary to include acceptance of a EULA and TOS as part of the onboarding process of a new player. It’s worth considering how your users will accept these contracts if you want these contracts to be binding on your users.
As a developer or publisher, you have a lot more power over these contracts than most others you might use since you can unilaterally decide what goes into them, but you’ll also have A LOT more people agreeing to them since every user will be agreeing to the terms of these contracts.
EULA: An Agreement that Grants a License to Your End Users
An End User License Agreement is a license to use the copyrighted software (the game) for your user. The developer and publisher still own the copyright, but they are granting to the user a license to use it. This helps protect the developer’s intellectual property. Along with that license, there are certain limitations placed, such as defining what the user is allowed to do with the software or defining the scope of the license for fan content. These terms can also manage and limit potential liabilities surrounding the game, such as damages caused by the game or limiting liability for server downtime that limits access to online modes.
Owning a license to something other than the actual thing is nothing new either, in spite of complaints about digital ownership being the death of true ownership. “Ownership” of a physical game (or book, or movie, or song, etc.) has always been limited to owning the physical media that the game is printed and distributed on rather than actual ownership of the work itself. A formalized EULA just makes this clearer.
Important Terms to Consider in a EULA:
- Scope of License
- The possibility for downtime and excluding these as cause for refunds
- Revocation of license in the event of a breach by the user
TOS: Defines the Terms of Your Service
A Terms of Service (TOS) agreement is a little bit different from a EULA. A TOS defines the terms under which your players can play your game, interact with your services, create user-generated content within the game, and interact with other players. A strong TOS is generally more important for a game that has an online component than one that is entirely offline.
Think of this as a set of rules that governs how the players use your service. As such, these can often cite other documents that govern player behavior, like Riot’s Summoner’s Code or Nintendo’s Code of Conduct. A TOS can prohibit certain behaviors such as modding and can act as the legal basis for some lawsuits like Bungie’s lawsuit against cheat makers.
Important Terms to Consider in a TOS agreement:
- How the software can be used
- You may patch and update the game
- User-generated content, including fan sites and third-party rights.
- Code of Conduct, particularly with regard to cheating and communication with other players
TOS or EULA, Which Ones Do You Need For Your Game?
Now that you know what these documents are, the important question you need to ask is whether you need a TOS or EULA. Maybe both?
In general, EULAs are for software licensing and a TOS is for services. An offline-only app may only have a EULA covering the license to use the app while a website may only have a TOS defining its use, though in both cases certain elements from the other document may appear.
Where do video games fall in this? Typically they’re both. You are both providing a license to use the software as well as a service. As such, it’s almost always best to have both a TOS and a EULA, in addition to a Privacy Policy, especially for games with any sort of online component.
While these two documents are sometimes two different documents, they often overlap and cover the same terms. They even often rely on and make references to one another. For example, a TOS may prohibit cheating, and a EULA may allow the revocation of a license for violation of the TOS. Because these two contracts often cover similar material, it’s possible to cover what you need to in a single document that acts as both a EULA and TOS agreement.
Even so, the needs of both the EULA and TOS must be considered when drafting a single document, and every project’s needs will be somewhat different and have a greater need for one or the other. As such, it’s important to understand what goes into these documents and to have qualified legal assistance when drafting them.
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