In the first Ro15oH post, I introduced the idea that Diablo (taken as a kind of 15-year whole) offers a productive lens through which to think about shifting modes of media practice. While I indexed a conversation over Facebook between myself and old friends on the topic, it was actually the End User License Agreements (EULAs) that prompted me to want to write about the game initially. While I’m not going to go through in-detail the EULAs, a topic likely worthy of analysis, I am instead going to look at the shifting form of the EULA over the last 15 years.

Shifting Physicality and Material Relations

I installed Diablo III prior to its actual release. What that allow me to do was view the opening cinematic for the game. Prior to that, however, I was prompted to agree to Diablo III’s EULA, it’s Auction House Terms of Service and finally the game’s dispute resolution policy. Once the game was released, I was prompted to re-agree to the EULA and Auction House TOS (as it must have changed from the time of installation to the state at the time of the game’s release). I can only presume that any time future changes are made to any of these documents a patch will be made to the game and I’ll be required to agree with them prior to being able to play the game.

What was most interesting to me, though I suppose it ought not be interesting, given the popularity of mandatory arbitration was the inclusion of such a clause in Diablo III’s EULA. I’m sure that this is nothing new to Diablo III, though as recently as 2009, game developers have been subject to class-action law-suits, so it must not be a de facto industry standard, yet. As the EULA nagged me, I reflected on the mechanics of the document. While not all software packages require a user to “read” these agreements, Diablo III at least mandated that I scroll to the bottom of each document before checking a box that I agree and then clicking a box to verify that fact.

Diablo II, on the other hand was typical of other software of its generation. The game’s installer, which as a player you typically only experienced once, contained a similar EULA, and “Agree” or “Disagree” button. Clicking agree would install the game and disagree would exit the process. However, once the game was installed, as a user, I was fairly ignorant of the fact that it remained or that it might shift or change over time. Thus, Diablo III’s shifting EULA reflects broader practices in media industries to ask users to regularly re-agree with shifting acceptable use policies.

The original Diablo, on the other hand, included an actual printed copy of the EULA. Of course “no one” read the EULAs back then either, and our breaking of the seal on a CD envelope or jewel case was the physical equivalent of clicking “agree.” Is there something lost in the lack of physicality of these objects? The material act of breaking a discs’ seal establishes a different relationship with the media than simply clicking a button or skimming down a text box to then click agree. The shifting character of these documents is also important.

Imagine if, like most banks, as our media/devices shifted their policies we were inundated with physical letters detailing these changes, rather than the redly clickable “agree” buttons, or only mildly more explicit forced scrolling and clicking experiences. Even in the case of Diablo II, it was clear that the agreement was something distinguishable and distinct from the game itself. Diablo III even positions the documents in windows matching those of the game itself. The EULAs are just another virtual game device to be interacted with, not unlike a user’s character inventory.

Technological Hegemonic Discourse

I have argued that it is precisely this mutability that allows these social/technical/legal systems to become active participants in hegemonic discourse. Perhaps this is the most interesting aspect of shifting EULAs. As users explore and disrupt the play space of the game, developers need mechanisms by which to effectively police and control the most disruptive force in games, its players. The EULA, unlike a constitutional document becomes one that prevents players from even playing unless they agree to the new rules of a game.

The technologies with/in/of games have become part and parcel with their underlying ideologies and play experiences. They enact and embody positions within the hegemonic discourse. In some cases players balk at them, but for the most part, players simply continue to click agree in order to get along with their daily (play) lives. This acquiescence fits nicely into a kind of Gramcian notion of hegemony based on coercion and consent.

It is perhaps at this point that the implications of mandatory arbitration are most important. This is the point where players actually disconnect this system from a broader set of legal systems and practices. This marks an important point where even our media are thoroughly inundated with a legal trend that requires (at least US) users to waive all rights to due process. More strangely, this shifting document is now capable of barring a user’s access to a system that they’ve ostensibly paid to use if they do not accept future mandatory changes. It is this, in particular that makes Diablo III an interesting entry into the shifting worlds of game players. Diablo III’s “always online” mode of play requires that a player agree to the current state of affairs or not play at all, an aspect of the game I’ll examine more closely in the next post.