Of course I am speaking of the USA, legally things may be different in the EU.
I don't think your post tells the whole story in the USA, either.
EULAs are on shaky legal ground because they are an
unconscionable form of a
contract of adhesion (see also
shrink wrap contract). Individual EULAs have been challenged and declared unenforceable in multiple cases (
for example). Furthermore, even for the purpose of valid contracts there is dispute over what rights you can legally sign over; it is questionable whether clauses like the one couchpotato quoted, which forfeits the right to a jury trial, would hold up in court, especially since the EULA doesn't contain an arbitration clause - see below.
In my opinion - and I'll admit, contract law is not my area of expertise - EULAs are more scare documents than legally binding contracts. If you've ever had a job with a decent-sized company, you may have noticed that it required you to sign several forms when you applied for employment that said that you would not sue them. These are pretty much the same thing as EULAs. They don't actually prevent you from being able to sue the company if they legally wrong you, but they prevent many people from doing so nonetheless because those people, having signed the document and lacking an understanding of their rights,
believe that it has the legal power to stop them from suing. (
Arbitration clauses are the major exception to this, but even they can be overruled in the right circumstances.)
I am not sure why this is such a big deal. They have had such clauses in software for decades. Either you folks were not aware of it or it is just the shock someone actually enforced their rights to do so.
That's just the thing. The reason companies like EA are able to keep pushing the envelope on consumer rights issues is that very few people have the time, money and inclination to enter into a legal battle over what is generally seen as a relatively minor issue, especially since 1. EULAs are usually not used in such egregiously abusive ways as in this case, and 2. entering into a legal battle against a large, multimillion-dollar corporation such as EA will be especially costly, as they can generally bog down the issue in legal red tape for months. And remember, most lawyers charge hundreds of dollars per hour; certainly any decent enough to take on EA would. Thus, EA can afford to string out the case until the person attempting to sue them runs out of money, not entirely unlike the strategy Bethesda seemed to be pursuing in its recent disputes with Interplay. It's no coincidence that the examples I cited above in which EULAs were found unenforceable were cases involving one company facing off against another. The best way the average consumer can get a big company to change objectionable policies like this is to start threads about it and alert news sites in the hopes that bad publicity and the power of the all-mighty dollar will affect company policy. Finally, 3. generally, the only people with grounds for such a lawsuit are those who are directly wronged by the policy. If the person who got banned wanted to sue, he would have good legal grounds for doing so; if the rest of us wanted to sue, we would most likely not.
In short, to sue you'd have to be rich, have a great deal of free time on your hands that you were willing to devote to the issue instead of using it to, say, play other games, and be among the people who have been directly wronged by the EULA to stand a decent chance against a behemoth like EA. Very few, if any, people fit these criteria… but if EA keeps poking the hornets' nest and trying to enforce their so-called "rights", they're only increasing the likelihood that they will eventually be stung. Personally, I look forward to the day that the legality of EULAs in general is challenged in a federal court. I doubt they will hold up, and even if they do, at worst things will continue to operate as they do now. If the courts were to rule against them, though… well, that would be quite a blow to many policies gaming companies pursue that only hurt consumers.
