The Exchange TOS: a critical look

The Maxis site and the game manual happily suggest that the player who has created a family and captured all their best moments in the Photo Album can put it up on the Maxis site to share with other users. I was hoping to make use of this, as I'd "photographed" some strange things in the game - Sims walk on water, Servo dances with guests - and the Web Pages which included these pics were over 10 MB per neighbourhood, ie. too big to put on my personal webspace. Except, strangely, my neighbourhoods wouldn't upload, either from the PC or the Mac. I surfed on info and took a dip in the Maxis forums, and found that i. on the PC, uploading is only allowed for US users, with a maximum of families (that wasn't in the manual!) and endless patience, as the uploading is not problem-free; ii. on the Mac, just forget it.

Fans in general have shown their discontent with the service, and non-US fans in particular with being simply banned. EA's excuse for disallowing other-language fans - that strange characters in other user languages make uploads that may crash games on other-language systems - doesn't apply to UK-English users, and they are as surely shut out; besides, not only is it impossible for them to upload families, but it also seems they can't download (I certainly haven't been able to) - and what is the excuse for that? Un-Americans not allowed on the site? Funny, I can download all the skins and objects. Or would non-strange characters from US-only families corrupt the installation on other-language systems? The worst that will happen is the wiping of the characters' bios.

I don't mind EA/Maxis imposing limits; I do mind a company luring buyers with promises, then ratifying those promises in a somewhat underhand way (the upload limits of eight families per user name, maximum of six usernames, were not clearly declared anywhere on the site - users mentioned them in the forums) and retracting them altogether on a national basis: "You're not American so yah-boo, sucks to you." That I am by now used to the ingrained arrogance of a country that doesn't quite cover one quarter of the actual America, doesn't mean it's stopped pissing me off. Anyway, I cheated a bit, replaced the language "GB" by "US" in the web pages, started "publish.html" in the browser and so at least got to see the TOS, that is, the terms which the US user has to agree to, before uploading families to the Exchange.

I read it and became increasingly furious. Even taking into account that such terms are formulated to deal with rogues who will abuse anything given half a chance, these terms, and the total difference between them and the sunny "upload your families and share them with fans!" I got off the site, made me decide to either find some free popup-riddled webspace myself or decline the honour of sharing. Here are the paragraphs that made me see red, with my comments added:

2. Use of this Site.

2.3 No Commercial Use. TheSims.com is for your personal, non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Content, software, products, or services obtained from this Site. You may not use this Site, or any of its Content, to further any commercial purpose, including any advertising or advertising revenue generation activity on your own Site.

Sounds perfectly reasonable, doesn't it? Don't use the graciously offered hospitality to make bucks. But I already have a little niggle. "This site" includes downloaded skins, meshes and objects. It is, and has been since the beginning of the game, the habit of players to use existing skins, meshes and objects - including what they download from this site - to make new ones. And this, I read, is not allowed: "You may not modify, [...] create derivative works from," etc. This means object-cloning is forbidden, as is using the Sims logo on one's object site, as is putting up for download a hacked "bills.iff". Right. Let's march the whole fandom off to jail, then. Or did the above mean that fans are not allowed to do these things and then ask money for the result? That still leaves Bill Simser (Blueprint, there was a commercial version) and the TSR webmasters (a paysite) in trouble, but okay. It can still be twisted to mean, however, that whoever wants to use the Exchange must stop doing the only thing that makes the game worthwhile.

2.6 Rights Granted to EA. You grant to EA a royalty free, perpetual, irrevocable, worldwide, transferable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display, in whole or in part, and without any notice or compensation to you, any Content that you post, transmit, upload or otherwise communicate on this Site. You waive and relinquish any "moral rights" that may exist in any Content, and agree not to assert any moral rights in Content.

You're not allowed to hack objects and put them on the Exchange - but if you do, they belong to EA! Bwaahahaha! This company should jail itself.

Actually, EA incorporating fan-made objects into the game is not a bad thing - the objects then become standard, and downloaded houses need no longer produce error messages for lack of them. But I don't like that attitude of "we can pluck stuff from anywhere and call it ours". Acknowledging that an object comes from elsewhere is not merely a moral duty, it is a matter of common sense, to prevent bad feeling. I have twice seen an fan-made object closely resembling a standard object on a fan site (not TheSims.com) and have wondered: okay, who stole from who? But it doesn't matter if fans become angry and distrustful of each other, so long as EA can be safeguarded from prosecution. I think I'll waive my moral objections to piracy and start distributing free copies of the game to anyone who notices their painstakingly created object suddenly has EA's name on it!

2.2 Content. Content is defined as any graphics (including skins, buildings, and textures), sounds, music, video, audio or text that EA, you, or any other user may upload or transmit on this Site. You agree not to upload or transmit on this Site any Content that is subject to any third party's copyright, trademark, or other proprietary right, unless you have express permission from all parties with rights in that Content, and those parties agree to this TOS. You bear the entire risk of the completeness, accuracy or usefulness of any Content found on this Site. Each user is solely responsible for the Content that he or she posts. EA does not pre-screen Content supplied by users. However, EA reserves the right to remove from this Site any Content (including bulletin board postings) at any time and for any reason. Removal may be immediate and without notice.

Oooh, mind the copyright! Fans who made Sailor Moon hoods, X-Files skins, T-shirts with Gay Pride logos on them, look elsewhere. You're stealing intellectual property, and EA won't stand for that! (Though it doesn't mind stealing intellectual property itself, and wants the user to formally agree to this.)

And how would bulletin board postings transgress copyright laws? I'd say those would probably be removed sooner for criticizing EA (I've read that a user's account was shut off for this) and to suggest a link between such removals and breach of copyright (although the terms further specify: "for any reason") is to obscure the informal censorship going on; I believe the only reason some critical threads are still up is that the EA folks haven't read them.

4. Community Web Pages.

4.2 Community Web Pages. EA is providing server space to users to post Community Web Pages ("Web Hosting Service"). As with all Content on this Site, you bear the entire risk of the completeness, accuracy or usefulness of any Community Web Page posted. Each user is solely responsible for the Community Web Page that he or she posts. EA does not pre-screen Community Web Pages. However, EA reserves the right to remove from this Site any Community Web Page at any time and for any reason. Removal may be immediate and without notice. You may not use your Community Web Page to engage in any activity prohibited by this TOS. You also may not post or maintain a Community Web Page that:

(a) is not devoted to The Sims(tm) game;

(b) has no activity for more than thirty (30) days;

(c) acts as a door or sign post to another home page, or is used for data warehousing (storing data that is accessed from other sites);

(d) restricts access to the Web Page through password protection or other means;

(e) contains links to pages containing Content that is not permitted on this Site;

(f) reflects any conduct that EA determines is harmful to EA, another user, or any third party; or

(g) is used to send unsolicited email that uses TheSims.com address, or refers to TheSims.com.

Now here's something new. The Community Webpage is where users who apparently can't afford their own webspace, put up Sims fan pages, complete with downloads. It is also where one posts one's families and albums. From (b) I deduce that the one is not allowed without the other; so, not only is uploading restricted to US users, but they also have to provide some sort of Sims-advertising content, which they must update monthly (very funny considering the problems with updating albums I've heard about) and (c) means, strictly speaking, that I mustn't link from my personal Sims page (which, being non-US, I can't use!) to my own website, even though on the site itself I am told I will be provided with a Simspage link which I can then copy & paste for use elsewhere!

By now I am very confused on what, exactly, is required to upload a family plus album to the Exchange. But I do know one thing: for me, it will not be allowed. Conditions (a), (d) and (g) are entirely reasonable. Conditions (b) and (c) demand that I concentrate any Sims-related web content I want to make on TheSims.com, and if I must be so impudent as to use my own webspace as well, the two sites should not be linked. They had better not be linked anyway, as (e) and (f) prohibit all linkings to my own website, with its nasty criticism, its smart-aleck installation tips and its mention of - oh, horror - the no-CD patch which has made piracy possible and caused the death of many a game company, especially EA who haven't sold a single copy of any release of the Sims since my pages went up; and this while they've been so courteous to customers at home and abroad!

(For those who don't detect sarcasm: the Sims is still a best-selling game precisely despite the very many fans the company has managed to piss off.)

4.4 Required Links or Content. EA may require each Community Web Page to contain a link to TheSims.com home page or other links, and/or to display certain Content including, but not limited to, banner advertising or other advertising. You may not alter, remove or otherwise interfere with links or Content that EA places on Community Web Pages.

Because you'd better remember they're not hosting your files out of kindness; they're using your creative efforts as free advertising. And if they want to advertise their kill-maim-destroy wargames on your "Persian cat pet skins" page, they have the right! Maybe users should add statements distantiating themselves from any possibly offensive material added by the hoster.

5. Downloadable Software.

5.1 License Terms. Any software that you may download from this Site ("EA Software") is the copyrighted work of Electronic Arts Inc. and/or its licensors. Use of EA Software is governed by the terms of any end-user license agreement that may accompany the EA Software. The following terms apply to your use of EA Software (to the extent not inconsistent with any accompanying end-user license agreement):

(a) EA hereby grants to you a personal, non-exclusive, non-transferable, limited license to use the object code version of the EA Software solely on your single personal computer;

(b) EA Software is provided strictly on an "as-is" basis, without any warranties of any kind, whether expressed or implied, including without limitation any warranties of merchantability, fitness for a particular purpose (even if EA has been informed of such purpose), non-infringement or compatibility with your computer hardware or software;

(c) EA has no liability of any kind or nature in connection with your use of the EA Software (including liability for any consequential or incidental damages), and the entire risk of use (including without limitation any damage to your computer hardware or software) resides with you; and

(d) your license to use the EA Software will terminate automatically and without notice in the event that you violate any of these license terms.

Maxis kindly puts up free utilities like HomeCrafter, which I may use - but not mail to a friend. Aside from the fact that I wouldn't mail such a large attachment to a friend, is EA afraid I'm going to make money off it? Or is "software" (since they're talking about the Exchange, after all) a family file? As the terms say "(to the extent not inconsistent with any accompanying end-user license agreement)", fans who don't want their families and distribution thereof to be owned by EA, should maybe include end user licences with the FAM files? But wait, they've already agreed to waive any moral rights...

5.2 Export Controls: This Site is located in California, USA. Users who access this Site are solely responsible for knowing and complying with all federal, state, and local laws that may apply to them in their own locale. EA Software may be subject to United States export controls. By downloading EA Software from this Site, you warrant that you are not located in any country, or exporting EA Software to any person or place, to which the United States has embargoed goods.

Like a true patriot, EA makes sure your precious families won't be downloaded by those dirty Cubans, Iraqis, Russkies or whatever country may currently be on the President's naughty list (and not because the USA shuns dictatorial regimes). Okay, this probably isn't EA talking, all citizens of the "free country" called the USA are legally obliged to put this notice on their sites and can be persecuted for not doing so. Funnily enough, people granted webspace on this site have to obey US law, California-specific law and whatever crooked laws apply in their own country, so someone from Vietnam - but they're banned from the Exchange anyway - might not be allowed to post a skin that shows bare arms. EA expects anyone from a dictatorial regime not currently on the President's naughty list, to police themselves.

6. No Unauthorized Copying or Distribution. You understand and agree that all Content, EA Software and all HTML and other code contained in this Site, is owned by EA and/or its licensors and is protected by copyright and other laws and international treaty provisions. Any reproduction or redistribution of the above listed materials is prohibited by law and may result in civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Without limiting the foregoing, copying the above listed materials to any other server or location for publication, reproduction or distribution is expressly prohibited.

I found I couldn't agree with the TOS, and that I would host as much as fits of my own hoods in my own webspace. And to save time, I used the house and character snapshots from the webpages generated on my harddisk by the game itself. And guess what: since they, and the generated HTML, are exactly the same as what's used on the Exchange, they're owned by EA, who will sue me for every penny I've got if I dare use either on my own pages! Apparently, that applies whether I agree to these terms or not!

EA, I have this to say to you.

Ppphhht!