The Legal and Moral Minefield of Blizzard’s Annual Pass.

I’ve watched – with some bemusement, granted – at all the threats of class action suits and legal repercussions from the lack of delivery of the Mists of Pandaria beta access for a large number of Annual Pass holders, so I thought it’d be a good time to talk about the legal side of things.

Blizzard’s Annual Pass promotion was a contract in which many signed up to. The terms of the contract were you agreed to pay for a years worth of World of Warcraft access and in return, you would be afforded some perks to go along with it.

Contracts are legally binding until breached by either party, or fulfilled. The general legal recourse for changes to a contract state that the affected party must be informed 28 days in advance when possible to any change in their contract, with the option – if they disagree – to cancel the contract due to unagreed changes. In extraneous situations, a contract can be changed immediately but only if one of two conditions are met – there is no material damage to the agreement, or the disaffected party has ample time to withdraw from the agreement without penalty.

So, what is a contractual breach? Well, there are many types of contractual breach, but for the Annual Pass, only two really apply;

(1) Minor Breach
A minor breach is where one of the agreed terms in a contract cannot be delivered upon, for whatever reason. As it is a contract, the disaffected party (i.e. the user who signed up for the Annual Pass) can be legally entitled to an award equal to the value of the portion of the contract that has not been delivered upon.

If Blizzard had, for example, pulled out from giving a copy of Diablo 3 to Annual Pass users, this constitutes an award. Diablo 3 has an RRP and, therefore, a net value of £39.99/$59.99; this would then need to be refunded to the disaffected party. Failure to do so would constitute a ‘Major Breach’, where the disaffected party has grounds to sue the provider of the contract for the material value of the item not delivered and relevant damages.

However, the Mists of Pandaria beta access has no monetary value. It is not for sale, as people can opt-in free of charge through their Battle.net account – this means that there is no case for damages. As it has no material worth, there is no case to answer. Legally, it is this which allows Blizzard to get away with this breach of contract, although…

(2) Anticipated Breach
An anticipated breach is when the person/s receiving or providing the service know in advance that the terms to which were agreed upon will not be delivered, or not be delivered in a timely fashion. Blizzard would have known at least a month ago that getting a million users into a beta would be a tall order, and with the current small volumes of beta waves going out, it has been calculated that a significant portion may not receive a beta invite until the end-of-beta stress test. This is an anticipated breach on both sides; Blizzard knew they couldn’t provide (which is a case for trading standards due to false advertising, and may or may not see Blizzard penalised/fined for it) and people who signed up for it can anticipate that they will not receive this part of the agreement in a timely fashion.

However, if Blizzard can provide evidence that they can adequately compensate, or provide a replacement of equal value, there is no strict legal case to answer. Moreso as the beta invite has no monetary worth, meaning they have breached the term that has a net value of nil. The worst that can be leveled at them is that their inability to provide a service they spelled out initially can null the contract – those with an Annual Pass don’t have to accept the new terms and conditions, and can withdraw from the agreement.

So there is no LEGAL case to be answered here. At least, not yet in any case. The worst that can be done to Blizzard by their users is grounds to request the contract null and void. The UK Trading Standards can, themselves, penalise or fine Blizzard for it – but again, because the value of what they promised and have not delivered on is nil, it is likely not worth the comparative expense of enforcing this term.

That said, whilst this is all well and good for Blizzard, the other side of the argument is the moral argument.

Blizzard promised for some considerable time access to the Mists of Pandaria beta when it went live. Legally speaking, this can be held to account as meaning the moment the servers went live – however ambiguous Blizzard believe the statement to be. A stealthy or last-minute change to the terms and conditions of the contract that was agreed upon cannot be held as legally binding as they can be held to their initial promise that was agreed upon, but the expense is likely not worth the end result. Instead, the argument can then be turned into one of a moral obligation; that they have reneged on a promise they promoted.

Regardless of the net worth in a legal sense, it was still heavily advertised for many months as a key point of the promotion. This means the advertising can be taken over and above any changes to the terms and conditions, and therefore signify that Blizzard have a MORAL OBLIGATION to provide the service in a reasonable timeframe, or provide an adequate alternative. Note I said “reasonable timeframe”. This means that Blizzard have a window of opportunity to make things right, regardless of the relative impatience of their users. If Blizzard cannot put things right in what can be construed as a “reasonable timeframe”, then there could be grounds for legal repercussions; but this could be up to and including the last day of the beta test.

Of course, by not addressing the situation, or defusing it, or relating to the consumer base a reasonable timeframe in which the issue may be addressed, they are committing a Public Relations exercise doomed to fail in spectacular fashion. People signed up for an annual pass via a contract that they cannot cancel via their Battle.net account, and they obviously are entitled to expect delivery of the conditions set out in that contract – a mount, which they have. A digital copy of Diablo 3 – which can be pre-downloaded now, ready for its release. And beta access to Mists of Pandaria.

Whilst the userbase is mostly dominated by sweary, shouty types who are otherwise not helping matters, we must also remember that said sweary shouty userbase does have grounds to feel somewhat aggrieved. Blizzard have tried, slyly, to squirm their way out of the agreement. They’ve invited people who had not paid for the Annual Pass and opted in for free via their Battle.net account over those that had, and did. This is an incredibly shady manoeuvre that demonstrates a clear and present intent to deceive those who had paid for this particular portion of the contract. This is something that will haunt them for some considerable time – and may end up with many of those who signed up not trusting in Blizzard ever again.

This is of course very poor form for Blizzard. At a time when they want the Mists of Pandaria beta to be shouted from the rooftops, instead the majority of talk on their own forums is not of the beta – but of those who feel they have been cheated out of something they feel they have been paying for. It has detracted from the important business of beta testing, detracted from the very real point of what a beta test should be.

Finding the errors in a beta and reporting them to be fixed. The more that Blizzard have to deal with a community divided and angry, the less focus there is inevitably going to be on the main goal of a beta test. This means that no-one can win here; the net result could be a beta test that is ineffectual and not conducted in a safe and proper manner.

And now, a Jerry Springer-style final thought.

Kami’s Final Thought.

No-one gets exactly what they thought they were going to get at the best of times. It’s very easy when you sign up for a contract to expect everything to be smooth, but when things go wrong we as consumers have a tendency to become very uncooperative; that our money dictates that our demands be met.

This is simply not the way of the world. Bad things happen. Human nature is such that the moment things look like they’re about to go wrong, our brains are wired to already be thinking of a plausible excuse to denote it not being our fault. Companies too suffer from this all too human condition; except for them, there are other concerns to worry about, such as finance and their workforce.

But patience is a virtue we should all have more of. It’s been not even two days since the Beta went live. The natural assumption for the positive is to believe that Blizzard themselves are working on a solution and if they can’t find one, that they may find themselves compensated for the lack of a beta invite. The negative can feel like they have been lied to, cheated and they want their money back.

I couldn’t bear the thought of being in the latter category. This is not to say I am a doormat; when pushed, I can and will bite back. But I believe that Blizzard deserve that reasonable timeframe clause – possibly a week or two – to iron out the kinks in these difficult circumstances.

Blizzard messed up. That’s not a secret, and no doubt they will at some point be made to answer for it as well. But if we cannot give them the benefit of the doubt for a week or two whilst they try to fix things, or work out a solution to the cock-up, then it is the userbase that is messed up. That can only mean that the Battle.net community idea as a whole has failed.

And the ultimate losers in that would us, the customers, who would eventually end up with nothing – no Battle.net, no Warcraft, no Diablo… no Blizzard.

Be careful what you wish for… because you might just get it.

Until next time, take care of yourselves. And each other.

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