Are the following Terms of Service clauses valid/enforceable? Wallhax is a website selling cheats for online games like Among Us, Apex Legends and dozens of others. Clearly what they do is in clear violation of these games' terms of services. On their own terms of services however, they have some (superfluous if not poorly written) clauses meant to prohibit the affected game developers from buying and inspecting the cheats: You agree you are not an employee of [...] and are not a family member or acquaintance of the aforementioned. You agree you are not an employee of any law firm contracted with [...] and are not a family member or acquaintance of said firm. You agree you are not an employee of any company offering an anti-cheat service including [...] and are not a family member or acquaintance of the aforementioned. You are not an employee of any game development studio. You are not purchasing from our site for any investigative purposes. You agree not to impersonate another person. You may not access the The Service, the website, forums, or software of The Service if any of the above terms apply to you. If you violate any of the above terms you agree to pay Wallhax $30,000 USD for each login to our software and forums. Now, imagine if a game development studio whose game's terms of services are violated thanks to Wallhax's products' assistance decides to ignore Wallhax's ToS, buys (either via a developer themselves or via a random person) the cheats, inspects how they work and updates the game to be resilient against them. Also imagine that Wallhax discovers it and demands the studio to pay thirty thousand dollars for each time the developer logged in. The studio stonewalls Wallhax, stating that the services they provide violate the game's terms of services, and Wallhax takes them to court. Would Wallhax manage to make the game developers pay the damages specified in the ToS? Disclaimer: I do not belong in the group of people prohibited from accessing WallHax's products. Nor have I bought or do I intend to buy them. This question is of theoretical interest.
No Penalty Clauses Apart from the final clause, none of the others is remarkable: a business can choose who it does and does not do business with subject to anti-discrimination laws. Of course, a law enforcement officer acting in the course of their duties would not be bound by any contract. However, the final clause is a penalty clause. A penalty is a clause that sets a harsh monetary punishment for the breach of a contract term, or failure to uphold contractual obligations. However, if the amount of money requested is greater than, or disproportionate to, the damage or loss that you actually suffer, there is the risk that this clause would be considered a penalty. According to the court, a clause is a penalty if it requests the payment of an amount that is “extravagant” and “unconscionable” in light of the most significant loss that the breach could have caused. $30,000 for me logging into the system would, on the face of it, appear to be a penalty. Tortious interference It is a tort (a civil wrong) to knowingly interfere in a contractual relationship between 2 parties. Although the specific elements required to prove a claim of tortious interference vary from one jurisdiction to another, they typically include the following: The existence of a contractual relationship or beneficial business relationship between two parties. Knowledge of that relationship by a third party. Intent of the third party to induce a party to the relationship to breach the relationship. Lack of any privilege on the part of the third party to induce such a breach. The contractual relationship is breached. Damage to the party against whom the breach occurs. The conduct of Wallhax clearly satisfies 1-5 with respect to an existing contract between a game developer and its users. With respect to damage, if they can demonstrate that the use of cheats cost them something - even $1, then there has been damage and the game developer can sue Wallhax. Notwithstanding, because the purpose of the cheats is to induce users to breach their licence with the developer, Wallhax's contract has illegality of purpose at its core and is therefore void ab initio - a nullity from the beginning. That is, there is no contract. Contracts against public policy Even if Wallhax's conduct does not amount to tortious interference, the encouragement of people to disregard their contractual obligations - that is, to disregard their legal obligations - is clearly against public policy. Contracts against public policy are also void ab initio.
The sale of in-game resources for real-world money is usually disallowed explicitly by a game's terms of service. One notable case was Blizzard's successful injunction against Peons4Hire, a World of Warcraft gold farming company. Setting aside terms-of-use considerations (which vary by game/platform), the sale of virtual goods for real money is broadly legal. Wikipedia has a short list of jurisdictions with notable decisions on virtual sales; see the page's references for the official news stories or government documents. Most of the rulings have been positive for virtual-goods vendors, though China has banned the sale of real items for virtual currency (the opposite of your proposed plan) and South Korea has banned the sale of virtual goods for real money outright. Such sales incur normal tax responsibilities, just as any other income does. I don't know if any jurisdictions have imposed special legislation that place income limits or special tax rates for income from the sale of virtual goods. In the case of Steam specifically, the sale of virtual goods is broadly disallowed in Section 2.G of the Steam Subscriber Agreement, but narrowly allowed in Section 3.D. All virtual Steam goods remain the property of Steam, and you have a license to use them, which includes sale in limited circumstances. The prohibition in Section 2.G reads: G. Restrictions on Use of Content and Services ...you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); ... And the narrow permission to perform trades in the Community Marketplace in Section 3.D (per the above &quot;except to the extent expressly permitted elsewhere in this Agreement&quot; exception of 2.G): D. Trading and Sales of Subscriptions Between Subscribers Steam may include one or more features or sites that allow Subscribers to trade, sell or purchase certain types of Subscriptions (for example, license rights to virtual items) with, to or from other Subscribers (“Subscription Marketplaces”). An example of a Subscription Marketplace is the Steam Community Market. You can use the Steam Community Market to trade items for real money; this kind of real-money sale is explicitly allowed and facilitated by Steam. Separately, you can also trade giftable games (N.B.: game trading does not support real money) using Steam's trading system. Applying terms to a game-trade (like requiring payment external to Stream's trading system) appears to be disallowed by the broad prohibition in 2.G, but it's not very clear. The mechanical transfer of the game from one account to another is allowed, but the fact that it is actually a sale in a way that is not explicitly allowed seems to make it against the terms of service. I have no idea to what degree this is enforceable nor to what degree Steam polices against trades that involve Stream-external money transfers (though a cursory search of conversations in the Steam forums suggests they might not care very much).
OK, so you understand that clickwraps do create enforceable contracts. the person "agreeing" to the dialog can arbitrarily manipulate the contents of the agreement terms So what? I can do a similar thing with a pen and paper agreement. You send me an agreement, I tell you I accept but secretly I have changed it. Well, guess what, when this ends up in court the judge won't care if I wiped my ass with it - I communicated my acceptance of your terms; therefore that is what I accepted. Under the hood, Google can show what the HTML was that their server sent to you and the http response that you sent back. They said "Do you accept?" you sent back "yes", deal done. What you did with the html in your computer does not matter one iota; just like what you did with pen and ink terms would.
Yes, it is legal for Steam to disable content on your PC because when you downloaded the Demo for the game &quot;Observer&quot;, you &quot;clicked through&quot; and agreed to either a TOS (Terms of Service) and/or a EULA (End User License Agreement) which was a legally binding contract. That contract stated the terms of use of the demo and when Steam can disable or expire the demo, as well as the fact that Steam can change the terms of the contract itself. Steam can close your entire account if they choose for any of very wide ranging reasons, as outlined in the contract. The demo wasn't your property; it was software licensed to you by Steam, and they can delete or disable as outlined in the contract. Steam will be very careful, however, to not delete or damage anything else you have installed, or Windows itself, while respecting the Microsoft Windows TOS/EULA. Take some time to read the TOS and/or EULA for Steam, or any software for that matter; you'll see that in most cases, you only have a license to use the software, and don't actually own the software and don't have a right to modify it.
The web-browser game was copyrighted the moment it was created by the individual. It did not need a copyright notice to be copyrighted, or a TOS to inform you of copyright. The individual was fully within the law to claim infringement and demand you stop disturbing your mod as an unauthorized change to their game. They should have had a TOS up when they started distributing the game, but that's their choice. The developer could - or have their attorney - send their own legal "takedown notice" of infringement directly to you rather than Tweet about it or approach Google. Google's takedown and your "copyright strike" is different than your original copyright violation and involves Google's TOS - Google Chrome Web Store Developer Agreement | Google Chrome - regarding copyright violations of apps and code under distribution. By your use of the store, Google reserves the right to remove your extensions when there are ...violations of intellectual property rights, including patent, copyright, trademark, trade secret, or other proprietary right of any party,... And, the original game being free and your mod being free rarely matters in copyright law and in cases of infringement. That's something a court would decide on the case and in looking at precedent(s). ...can I get into legal trouble for this? You could be sued by the maker of the game in civil court; that's up to them. Google's recourse is to simply remove the mod from the store and possibly restrict your use of their service(s), according to their TOS. For more background, see the Law SE Meta post I have a question about copyright. What should I read before I ask it? .
It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention &quot;around $70AUD&quot; which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly &quot;do business in&quot; Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC.
Short answer? No, the WTFPL offers no protection. A software license is a contract between the software vendor and the end user defining the terms and conditions under which the end user is permitted to use the software. Often, traditional software licenses contain terms that limit the vendor's liability. For example: "End User accepts the risk that this software will initiate computational conflagrations." It may also limit the end user's right to sue, by requiring binding arbitration, or by requiring them to sue in a particular court in a particular state. Whether and to what extent these clauses are enforceable is moot here, because the WTFPL doesn't contain them. Think of it this way. If you sign a contract with me to buy my house, and then you set fire to my car, you can't wave the house contract at me and say, "This is a legally binding contract, and it doesn't say I can't set fire to your car!" It doen't say that you can, either, and so it's not relevant to the lawsuit I'm going to bring against you for the damage to my car. Contracts are only relevant to a lawsuit if they contain a clause relevant to the subject matter of the lawsuit. The WTFPL contains no clauses in which the end user agrees to do or not to do anything, and therefore cannot be a defense against him or her doing, or not doing, anything at all.
Prove my work is not a trade secret violation Please don't. It's not your job to prove your innocence. The burden is on them to be specific, explain fully, and prove specific claims about your actions. In other words, don't justify, don't explain, and don't defend yourself to them. It's actually best you do not say anything to them, and just forward the letter to your legal counsel (Since you're selling software to be used in the medical field, I assume you already have some kind of legal counsel). For instance, even saying something as innocuous as "Managing patients, Exams, Bills etc are all public knowledge." could be used against you. Because it establishes the fact that you've been working on those features with them and that you've been working on those features with your new company (which doesn't necessarily follow, for all they know, you could have purchased a library module from someone else with those exact features). In other words, even if you were to reply with such an innocuous-sounding statement, you could be saving them months of cross-border discovery and litigation about some of their claims (even if you believed you were being entirely reasonable by defending yourself). But at the same time, don't take what I'm saying to mean that you should lie to them about which features you recently worked on. When I say that you shouldn't be talking to them. I mean that you should not be talking to them. You shouldn't be engaging with them and you shouldn't be giving them any shred of information whatsoever (implied or otherwise). It's not your job to make their job any easier. Do not reply to them. Don't even acknowledge the receipt of the letter (unless you already did by signing for it, which can't be helped). Use a legal intermediary. Give the letter to your own legal counsel (whether you signed for the letter, or not) and leave any reply to him or her (assuming he/she thinks this warning letter even warrants a response). And if this former employer gives you a phone call, kindly refer them to your legal counsel without saying another word.