Contract law also has the notion of an unconscionable contract - a contract that is "unjust or extremely one-sided" - which a court will not deem legally binding. As Groklaw's PJ put it in a recent post covering the OtherOS lawsuit: "The question this litigation hopes to raise is this: Would anyone in their right mind agree to buy a product where the company making it might make it stop working - randomly and for no fault on the part of the purchaser? And no refund? I wouldn't sign such a contract, and neither would you, I'm guessing."
The unreasonableness of many license terms together with the simple likelihood that they are not being read might be their undoing. Ashelford anticipates that "there will be cases brought challenging the licensers' entitlement to enforce particularly onerous or unusual terms that have been buried." However, he also points out that "to justify seeking a ruling on this would most likely require a product or service in mass-circulation seeking to enforce a particularly unjust term." As an example of the sort of thing he has in mind, Ashelford cites the public outcry over Facebook's announcement that it would retain rights to uploaded images even after users had removed them or deleted their accounts.
The trouble is our complacency and bit by bit we may well let the situation slip. Ashelford notes how "consumers will put up with an imperfect legal situation as long as the arrangement is convenient for their consumer habits." Perhaps the games industry is due its Facebook incident and perhaps we'll see what the courts have to say about all the things we've blithely been agreeing to. But in the meantime we should push for licenses to have a higher public profile that encourages scrutiny by the press, user groups, and consumer watchdogs. Time was you knew exactly what you were paying for when you handed over money and took home your game. It's not so clear cut right now, but it needn't stay that way.
Douglas Heaven owns a fat PS3 and Wipeout HD and liked them both better before they changed.