My game Postmortem is releasing very soon so I am trying to tie up a few loose ends. Since I am using PayPal to sell it online I figured I probably need some sort of "Terms & Policies" as well as EULA to go with the game.
For comparison I checked other small self-published Indie titles like Home, Hotline Miami, Dear Esther or Lone Survivor and was frankly baffled to find they all lacked any form of legal disclaimers! Home doesn't even have a readme, Hotline Miami is just a list of troubleshooting techniques. Nothing on their website, nothing in the game files, nothing ingame.
Am I missing something here?
Self publishing via online sales - Terms, EULA, Readmes etc. are they even required?
If you don't do anything than traditional copyright controls and sales law will apply.
Most games do operate on a license agreement. I've never heard of Hotline Miami, but when I look at it on gog it includes EULA.text. I assume that similar fine print exists in the other titles as well.
Under traditional sales doctrine the seller has a number legal requirements, such as that the product be reasonably free of defects, that it is fit for the purpose it was designed for, that it is not unreasonably dangerous, and so on.
Imagine: If the game crashes one it could be grounds for lawsuit. If the game harms your computer it could be grounds for a lawsuit. If the game does not satisfy the statements in the ads about it being fun, it could be grounds for a lawsuit. The lawsuits are unlikely, but you don't want to pay for even a single one of them.
A license agreement moves it away from traditional sale law and moves it into a contract.
Most license agreements disclaim all implied warranties such as fitness and merchantability, and do their best to limit the damage a potential disgruntled customer could cause.
Before you release your game you really should talk to a business lawyer to make sure you have done all you need to do. The $150-$300 up front in legal costs can be far less than the many thousands of dollars (or even hundreds of thousands of dollars) for making a serious business error.
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Imagine: If the game crashes one it could be grounds for lawsuit. If the game harms your computer it could be grounds for a lawsuit. If the game does not satisfy the statements in the ads about it being fun, it could be grounds for a lawsuit. The lawsuits are unlikely, but you don't want to pay for even a single one of them.
Aye which is why that is one stipulation I did specifically include ("provided as is not responsible for any damages yadda yadda"). And agreed about consult an attorney. I was just really surprised how many indie games came out with virtually nothing at all.
I would definitely not publish without some form of EULA, there are probably standard EULA text you can buy online that's lawyer-approved, if you don't want to get a personal lawyer. Mostly you just need to be sure that you disclaim liabilities in an air-tight manner, and provide for whatever usage rights you're giving them.
Some indies also provide a "plain-english" form of the EULA as a sort of summary of the real-deal legalese. For example, it might say: "You've purchased our game and can install it for your own use on as many machines as you like. You can sell your copy of the game if you discontinue use and remove it from any machine you installed it on. We've done our best to remove bugs and ensure our game is safe for you to use, but it's sold as-is and you use it at your own risk."
The summary doesn't really hold any legal water of its own, it just seems to be something that the indie-audience appreciates. However, it could cause trouble if it could be interpreted in a way that contradicts the actual EULA, so be wary of that if you provide one for your game.
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