We have strayed into an area that I think deserves its own thread, so
I've changed the subject line, etc. Since I am going to speak
specifically about FrugalVP and WinPoker, I am also taking the liberty
of cross-posting to those groups, as well, with Larry's consent.
In the old VPFree thread "Questions about Bankroll", Lawrence Boxer wrote:
... If, however, one were to take
the mathematical models of ER and variance to court, a judge might
well rule that there is an inherent promise of success when the
"products" are used by the consumer as a basis for play. And, in
fact, they are designed specifically as models for how to best
achieve success against ER and variance. So in a very strong sense,
there is an implied promise of success. If not, then why use such
models as a strategic tool?
snip
I have to disagree with you on several grounds, but first let's define
what we're talking about here. When you say "products" in connection
with VP, there are only three that come to my mind: books, computer
programs, and strategy cards. You can reply with a post of any others
that you can think of. I will cover what I think are insurmountable
legal hurdles for all three types of products in any sort of an implied
warranty claim, but first I want to briefly comment specifically on
'Books' and 'Computer Programs'.
Without conceding the point that there might be any sort of implied
warranty to any degree at all, I feel that books (considering their
usual length and frequent comprehensive coverage) and computer programs
(with their usual help files and licenses) might completely defeat a
claim such as you've suggested, without even getting into the other
problems associated with such a claim. Naturally, I don't have access
to every computer program and book on video poker, but a couple of
examples will suffice. I looked at WinPoker, FrugalVP, and
VPStrategyMaster; excerpts from their various license and help files
appear at the end of this post for those interested enough to want to
read them.
Now, as far as 'books' on VP are concerned, I am confident that most of
them -- certainly those which are good and thorough in their coverage of
the subject -- somehow make it abundantly clear that Video Poker is a
GAME OF CHANCE, i.e., 'a gamble', and that nothing is EVER 'guaranteed'.
Strategy cards, of course, are probably all too brief to contain any
disclaimer language, although I don't know if those who sell them happen
to include any sort of instructions on their use that might have
disclaimer language. When I begin to market mine, I will be sure to
include some appropriate provisions, since in this day and age there are
always some folks who want to make something from nothing in court.
Aside from the above, and even if there is no disclaimer or notice,
their are practical problems with asserting any sort of a claim of the
type you've suggested. Let's refer back to your post for a minute; you
said "a judge might well rule that there is an inherent promise of success."
To begin with, and not to sound like Bill Clinton, this all depends on
what the definition of "success" is. If it can only mean that you will
actually make a profit playing VP, and you have lost instead, then you
have just cleared the first hurdle, but with some big ones yet to come.
But if the meaning can also reasonably include
"_minimizing_your_losses_" ... which is exactly what I believe that they
actually do, both short-term and long-term, and which is also exactly
what I think is implied ... then at the very start of your case you
already have to deal with the prospect/possibility that the 'product'
was, in fact, successful despite your losses. And then, with either
interpretation, you still face BIG problems. First and foremost is
proof of damages as well as proof that the product failed; any claimant
would therefore be required to prove what their losses were BECAUSE OF
THE PRODUCT as well as when and how the product failed; after all, your
losses could well be due to your OWN mistakes rather than any deficiency
with the product. This would require a claimant to prove what they
would have won or lost if they had NOT used the product, which of course
is an impossibility unless the casinos start showing (and allowing you
to record) 'what would have been' if your holds were different ... and
THAT isn't going to happen. In my opinion, merely asserting that a
person gambled because the product held out the prospect for success,
and then did not deliver, would not be enough without compelling
evidence that the person would never have gambled at all were it not for
the product; I think that would be awfully hard to accomplish based upon
mere 'implied' promises, which are, at best, vague and contrary to all
common sense. Now, I will admit that you'd almost certainly have a
different case if the product came right out and said: "You WILL win if
you use this product" or "We guarantee that you will win" or something
to that effect; but I've never seen a gambling product marketed with
such blantantly false assertions. I am confident enough about this that
I will not hesitate to use a marketing slogan like: "WIN with the BEST
video poker strategy: www.BestStrategyCards.com" ... when I finally
begin to sell my own cards.
Another big problem would, in my opinion, be to find a GOOD lawyer who
would even take the case ... unless you're prepared to fork over some
big money, win or lose; the prospect for winning this type of case with
any sizeable recovery stinks, so I can't see this ever being taken on a
contingency fee basis except by some incompetent attorney who would
probably lose the case.
There are lots of other smaller issues as well, such as jurisdiction and
lack of precedent, and whether a jury would be sympathetic to 'the idiot
who lost his house gambling'. And you had better be sure that there is
no evidence that you lost some of your money gambling on anything else
besides VP; i.e., if you were to claim that you lost a bundle playing VP
... which you would never have played if not for the promises of the
'product', the defense would have a hayday if they could prove that you
also gambled at the tables, or regular slots, etc., and all those casino
records of your play would most certainly be subject to subpoena. There
are lots of ways that such info would help the defense, but I won't
spend time getting into all of that.
The bottom line is that all of these products, so long as they are
_technically_ accurate, normally help a player by providing the
statistically best play; whether, by chance, a different hold would have
actually been better in a casino will never be known because casinos
don't offer a feature like WinPoker's "Show Next Cards" (at least not
that I've ever heard of). And because of more accurate play, the normal
result is a less rapid decline in bankroll/stake, which prolongs play.
Statistical characteristics like ER and variance ordinarily become more
representative of a player's actual experience as the number of games
played increases, but it is possible and valid, in my opinion, to make
short-term statistical predictions that are reasonably accurate within
their limits for purposes of assessing Risk of Ruin and
bankroll/session-stake requirements.
Cheers.
Bill Velek
23 years as an attorney; 18 years as a judge
DISCLAIMERS BELOW:
WinPoker has the strongest disclaimer, with the following language
(appearing between lines of asterisks) as follows:
*******************************WinPoker's Disclaimer********************
THE AUTHOR DISCLAIMS ALL WARRANTIES RELATING TO THIS SOFTWARE WHETHER
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAINED. NEITHER
THE AUTHOR NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION,
PRODUCTION OR DELIVERY OF THIS SOFTWARE SHALL BE LIABLE FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR
INABILITY TO USE SUCH SOFTWARE EVEN IF THE AUTHOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. IN NO EVENT SHALL THE
AUTHOR'S LIABILITY FOR ANY DAMAGES EVER EXCEED THE PRICE PAID FOR THE
LICENSE TO USE THE SOFTWARE REGARDLESS OF CLAIM. THE PERSON USING THE
SOFTWARE BEARS ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE.
This software is not intended to encourage or promote gambling. There
can be no assurance that the results from this program can be
effectively applied to casino gambling. The casino video poker machines
are ruled solely by internal random number generators. WinPoker has no
way of knowing the specifics of the casino random number generators.
WinPoker was intended to teach you the practical application of
statistical analysis as applied to 52, 53 , 54, 56 and 57 card decks.
************************END of WinPoker***************
_Pertinent_Parts_ of Frugal's disclaimer language in its software
license are below and between the lines of asterisks. I did snip some
standard warranty language bearing upon the operation of the program and
its compatibility with hardware and other software, but nothing
'snipped' pertained to data or strategy charts and a user's reliance
thereon, but the license does prohibit distribution of strategy charts
produced by FrugalVP "whether tweaked or not" (which, incidentally, is
one of several reasons why I am independently doing all of the math for
my own brand of strategy cards).
****************************FrugalVP's License and
Disclaimer*********************
THE WARRANTY AND REMEDY PROVIDED ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE END-USER ASSUMES ALL RISK AS TO THE SUITABILITY, QUALITY,
AND PERFORMANCE OF THE SOFTWARE. IN NO EVENT WILL LICENSOR, OR ITS
DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES, BE LIABLE TO THE END-USER
FOR ANY CONSEQUENTIAL INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES
(INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF DATA OR BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE
USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN
MATERIALS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
LICENSOR'S LIABILITY TO THE END-USER (IF ANY) FOR ACTUAL DIRECT DAMAGES
FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL
BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID
TO LICENSOR FOR THE LICENSE OF THE SOFTWARE.
*************************End of FrugalVP****************
I was unable to find anything really looking much like a disclaimer in
TomSki's "Video Poker Strategy Master" <commonly called 'VPSM'> except
for this language which might help defend against any implied warranty
claim on grounds that the user was actually given notice that his
program is not as accurate as other programs (WinPoker and VP Tutor);
this is not how I would have handled the legal side, but then Tom might
not have consulted with an attorney ...
*********************VPSM*********************
When playing on the computer with BDPWinPoker or VP Tutor, it
will at times show a different play than may be seen on the VPSM
strategy listing. When this happens, BDPWinPoker or VP Tutor will always
correct. (note this may not be true of other game playing software that
sometimes gives an incorrect play) The strategy listing of VPSM would
be too unwieldy if it were to list every single obscure penalty card
situtaion. For games that return over 100%, it is more efficient to just
pick a reasonable choice, rather than spend precious time searching for
the absolutely best play. This is what is meant by the term "Optimum
Play". The goal is to optimize your net win per hour. By playing more
hands on 100%+ machines, one can win more by playing faster with a few
very minor errors, than one could win by slowing down to make sure no
mistake was ever made. (note that on games that return less than 100%,
no strategy or money management scheme can ever make you a long term
winner. In other words, you WILL LOSE period!) However, for those that
wish to explore every penalty card possibility, VPSM provides an
excellent starting point from which to begin your search. Simply look at
the EV listing of each strategy holding, and for the ones that are close
in value, punch in different penalty card situations to see if any cases
are missing.
*************************End of VPSM******************
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