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Blizzard Stomps Bnetd in DMCA Case 773

Posted by michael
from the if-you-buy-blizzard-games-you're-supporting-them dept.
base3 writes "The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good. Some highlights from the ruling are: A clickthrough EULA isn't unconscionable (and thus enforceable); Fair Use rights can be waived in a EULA; First Sale rights (!) can be waived in a EULA; The DMCA's interoperability provisions are not a defense. If this ruling is allowed to stand, it will allow one-sided EULAs to force the waiver of the rights of First Sale and Fair Use. This, combined with the Supreme Court's recent assent to perpetual copyright, a few decades at a time, will destroy any semblance of balance in U.S. copyright law. Fortunately, the EFF plans to appeal the ruling."
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Blizzard Stomps Bnetd in DMCA Case

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  • by nurb432 (527695) on Saturday October 02, 2004 @02:06PM (#10414211) Homepage Journal
    Now we have one. And they are legally binding...

    Joy Joy.

    Been saying all along you CAN waive rights via agreement of a contract..

    • by bnenning (58349) on Saturday October 02, 2004 @02:12PM (#10414268)
      Been saying all along you CAN waive rights via agreement of a contract..

      Sure, I just reject the claim that a EULA is a contract. There's no consideration; you supposedly give up your rights, in exchange for *nothing*. Yhey're along the same lines as me saying "by replying to this post you agree to pay me $1000".
      • What do you mean nothing? YOu mean you're agreeing to a EULA for nothing? I mean don't EULA's usually come with *something* like say software?
        • by JeanPaulBob (585149) on Saturday October 02, 2004 @02:26PM (#10414368)
          They come with the installation of software--after you've already paid for it.

          The big problem most people have with EULA's is that they aren't presented at the time of purchase. I go to the store to buy a copy of Warcraft 3, I see no license agreement, I am presented with no conditions on my purchase, I pay for it. Contract concluded. Finito. I now have all the standard rights of the consumer to a copy of a copyright-protected work.

          What makes you think Blizzard can then say, "Oh, and you have to agree to surrender some of those rights. Tough luck."
          • by mitherial (554418) on Saturday October 02, 2004 @02:45PM (#10414495) Homepage
            *Huh?* If you are that concerned about EULA's (and I'm not saying that you are wrong to be) simply email the company asking to see their Eula before purchasing. Adobe (for example) lists their EULA on their webpage, and refers you there from the outside of the box [I think this is the way to go].

            It used to be standard practice to print the EULA on the outside of the shrinkwrapped plastic disk package.

            If you're concerned with the usage-restrictions in a EULA, take the time to find out. And if you don't agree with the terms (quite reasonable in the case of spyware etc.) don't accept the EULA and send back the software for a refund; that is: don't use the software .

            It is the software maker's perogative to offer their software on whatever conditions they want, and it is your perogative to NOT USE THEIR SOFTWARE (and instead consider giving your money to a competing product).
            • by ChaosDiscord (4913) on Sunday October 03, 2004 @12:12AM (#10417723) Homepage Journal
              If you're concerned with the usage-restrictions in a EULA, take the time to find out.

              That's bullshit. When I head over to my local bookstore, I don't first log into the publishers web site to see if I'll be able to sell the book to a used book shop. When I go buy a CD, I don't check to see if I can make a tape copy, or if I can sell it to a used cd shop.

              The software industry has managed to convince the world that they get to have magical new rules unlike those anywhere else in the world. This little trick is based on some downright flaky court rulings and an ignorant public. It does not need to be this way, and it should not need to be this way.

              I'm perfectly happy to make contracts. I sign employment agreements, cell phone contracts, auto-loan contracts, service contracts, and more. In those situations it's done honestly; we agree roughly on the terms, I'm presented with and sign the contract, we then exchange goods, services, and/or money.

              And if you don't agree with the terms (quite reasonable in the case of spyware etc.) don't accept the EULA and send back the software for a refund; that is: don't use the software

              Hahahahahahaha. Sure. Take it back; I'm sure they'll happily give you a refund. Right. And since we're in fantasy-land anyway they'll reimburse you for the time you wasted buying a product you only learned you couldn't use when you got home.

              It is the software maker's perogative to offer their software on whatever conditions they want, and it is your perogative to NOT USE THEIR SOFTWARE (and instead consider giving your money to a competing product).

              Sure. I was at Best Buy recently. There were music CDs, the offer appeared to be about $18 for a music CD, o strings attached. There were some magazines, the offer was often something like $3.95 for a magazine, no strings attached. I actually bought a new clock-radio; the posted offer was $29.95, no strings attached. I headed over to check out pricing for Doom III. The posted offer was $54.99. There was no sign warning me of additional limitations. There certainly wasn't any contract present that I could review. Yet, for some magical reason, I'm supposed to treat Doom III different. It'll complete bullshit. If software publishers want contracts with customers, they can afford to be up-front and honest about it.

          • by NigelJohnstone (242811) on Saturday October 02, 2004 @03:08PM (#10414652)
            "The big problem most people have with EULA's is that they aren't presented at the time of purchase. "

            No the big problem is, people don't and can't be expected to enter into a contract (which is what an EULA purports to be) for a minor purchase for a few $$.

            Realistically these densely worded contracts you would have to get professional advice in order to know your rights and loss of rights. You can't do that for every $40 purchase.

            What's more is, its impractical to obtain that legal advice when your in a shop, even if you were presented with the contract just before purchase.

            What I think you should do is this:

            Write a letter saying that regardless of what the EULA says, you do not accept it, will not read it and are not entering into a contract with the publisher. If they don't like it, they can arrange to collect their software from you at a convienient time and give you a full refund.

            Send the letter off to them, THEN INSTALL IT.

            If they can impose terms after the sale on you, you can impose terms after the sale on them. If its reasonable for them to expect you to return to the shop at your expense, its reasonable for the shop to collect it from you at their expense (or the publishers).

            • by Fnkmaster (89084) on Saturday October 02, 2004 @04:40PM (#10415414)
              Well, I am not sure, but there's no fundamental reason I can think of that they can offer you a contract of adhesion with onerous terms to escape from it after the fact, whereas you can't do the same to them. Contracts are by definition bilateral agreements, and contracts of adhesion are unilateral offers, and there's no reason only a seller can impose such a contract. So your tactic seems to show some promise as a way to effectively protest EULAs and force jurisprudence or industry action to reconsider this strategy for infringing on fair use rights.


              Another thing I just thought of - I don't understand how making archival copies for backup purposes is a protected right that can't be infringed by an EULA but reverse engineering for compatibility is a fair use right that CAN be infringed by an EULA (actually, I just looked it up and apparently the government now suggests [copyright.gov] that parts of Title 17, including the right to archival backup, can be thrown away by EULA).


              Fair use and archival backup are both sections under Title 17 of the Copyright Act. In order to accept that any of exemptions can be made not to apply, you have to accept that the software you are buying at a store isn't 'bought' at all, it is solely licensed after the fact by the EULA. So as to the question of what happened in that store when you handed them cash or your credit card and carried that box home, I basically give up trying to make sense of it.

            • If they can impose terms after the sale on you, you can impose terms after the sale on them.

              When you buy an item (in the UK at least) your contract of sale is with the retailer, not the manufacturer. Here the manufacturer is imposing terms on you for the installation of the software which is an explicit contract between you and the manufacturer, but not one that is based on financial exchange since you are not paying the manufacturer: your retailer does this. So in the UK you would be within your rights t

            • 40 dollar contract. (Score:3, Interesting)

              by nurb432 (527695)
              I donno.. i entered a contract with my cell phone company for less than that...

              Its not the $ amount that matters... its still a contract...

              ALso, You dont have the right to impose terms on them unless they agree to them seperately.. YOU are the customer, YOU bought the product, so YOU have to agree to THEIR terms..

              Pulling that trick would only get you in trouble.

              If you install, you agree to their terms.. period..

              However i agree with you on the return policy.. there should be one, and there really isnt..
      • by gcaseye6677 (694805) on Saturday October 02, 2004 @02:37PM (#10414445)
        The EFF, or other concerned groups, needs to set something like this up. Form a corporation who releases a software product with an insane licensing agreement (you give up your first born, etc.) then have people buy the software. Try to enforce the agreement, and have these people sue. The court must either decide that all EULAs are OK no matter how ridiculous, or case law will be established which limits how far a software company can go. OK, maybe they shouldn't really ask for the first born, but a large sum of money instead. Or some severe usage restrictions. If nothing else, it would be a very uncomfortable decision for a judge to make approving something like this, so it would be quite likely that we would see some restrictions finally put in place.
    • by Curunir_wolf (588405) * on Saturday October 02, 2004 @02:21PM (#10414332) Homepage Journal
      This is one of the most frightening rulings I have seen, WRT software licensing, etc. The judge pretty much get Blizzard a pass on everything.

      It's interesting to note, however, that a lot of the decisions were built upon Blizzard's stating that a person can take the software home, read the EULA, reject it, then take it back to the store for a refund within 30 days. I didn't see anywhere pointed out that you won't actually GET a refund in the real world. So Blizzard offers a "way out" of the one-sided contract that cannot actually be used.

      Hopefully the appeal will point this out, in which case I think most of the other rulings won't have a leg to stand on, since Blizzard now has $50 of the customer's money, and the customer is left with nothing they case use (without giving up a bunch of rights).

      There was a lawsuit [com.com] about a year and a half ago in California regarding this very issue - naming MS, Symantec, and others. It basically said that you were being forced to buy software that you cannot return after opening without seeing a EULA that you are forced to agree to in order to use the software. I haven't seen any updates, so it may have been settled out of court.

      This ruling CANNOT be allowed to stand. It's WORSE that UCITA. It's so one-sided, it makes one wonder whether the judge was really impartial on this one.

      • by nightfire-unique (253895) on Saturday October 02, 2004 @02:50PM (#10414532)
        s interesting to note, however, that a lot of the decisions were built upon Blizzard's stating that a person can take the software home, read the EULA, reject it, then take it back to the store for a refund within 30 days. I didn't see anywhere pointed out that you won't actually GET a refund in the real world. So Blizzard offers a "way out" of the one-sided contract that cannot actually be used.

        Living in Canada, once I purchase a software title at a retail outlet, that copy of the software belongs to me, regardless of any contract forms included in the box (the copy becomes the purchaser's personal property). If the vendor wanted me to return it if I didn't agree to their contract, they must have made that a purchase stipulation (via contract) before the sale was executed.

        They are asking *you* to take a specific action with your property.

        Here is a piece of paper/dialog box with terms of agreement written down. Please agree to these terms. If you don't agree to these terms, please take the action of selling us the software back at the cost you paid for it.

        That is, they are offering to re-buy the software from you (a refund).

        However, since you own the software copy in question (and the legal right to use it, as assigned by our equivalents of the first sale doctrine and copyright law), it's up to you - not them - to decide if you want to sell them back the software. They give you two choices (agree to the terms, or return it), what binds you to agree with either of them?

        That's the trouble with selling things. You don't get to ask for them back. :)

        Anyway, that's how it works up here.

    • The ruling should be appealled and an appellate court will take another shot at the ruling. The standard of review of a summary judgement is "de novo" which means the appealls court looks at the issues without deference to the lower court. Lower courts rarely make new law, appealls court do so more often. It shouldn't come as a surprise to lose this at the district court level.
    • by gl4ss (559668) on Saturday October 02, 2004 @03:52PM (#10415043) Homepage Journal
      *Been saying all along you CAN waive rights via agreement of a contract..*

      only in nations allowing slavery.

  • by gregfortune (313889) on Saturday October 02, 2004 @02:07PM (#10414226)
    Here's a blurb [linuxjournal.com] from linuxjournal on a ruling between Adobe and Softman that appears to grant Right of First Sale. Did this one get overturned?
    • by rpdillon (715137) on Saturday October 02, 2004 @04:00PM (#10415101) Homepage
      OK, I just got back from reading the entire ruling. The point you bring up is probably the most interesting part of the whole decision. The court concluded that right of first sale did not apply because Blizzard never sold the software - they sold a license to use it. Therefore, since there was no "sale", it canot apply.

      This really pisses me off, but I'll try to stay cool. The problem is obvious: what the hell does right of first sale apply to if not copyrighted computer games?? This was the main point in the decision that didnt make sense to me - and I wonder how it got written in that way. In my book, if I pay $50 to play a game, that's a sale. The court is essentially saying I paid for the license, not the game, so therefore right of first sale only applies to the license itself, not the game.

      It is quite interesting, because if right of first sale would then, using this *same, exact* logic prohibit the right of console game buyers to "sell back" or "trade in" games at a game store without the express consent of the game manufacturer. Most people may not know this (I didn't), but it is right of first sale that allows people to do what they want (more or less) with their copy of a work, like a CD, console game or PC game (like sell it back without having to get the consent of the game publisher). The fact that right of first sale specifically deals with this issue and the court said it was irrelevent seems a bit suspect to me.

      If you care about this stuff, the finding is actually quite readable, and at 36 pages (double spaced) I read the whole thing in about 20 minutes.
  • by NDPTAL85 (260093) on Saturday October 02, 2004 @02:08PM (#10414228)
    Yay our favorite game company won!

    Now the boycott on them can end! Enough of those pesky morals and ethics. I mean they make AWESOME video games. No one's gonna remember your sacrifice against a game company. So GAME ON!

    WOOO HOOO!
  • This is bad. (Score:5, Interesting)

    by Breakfast Pants (323698) on Saturday October 02, 2004 @02:08PM (#10414229) Journal
    You don't get to read the EULA before you have already purchased the software and many stores will NOT take back opened software. I see some lawsuits coming against said stores if this appeal doesn't work out. Imagine if when you bought a music CD you had to sign a contract saying you wouldn't allow anyone but yourself to hear any time you played it.
    • Re:This is bad. (Score:3, Insightful)

      A little clarification: Imagine if you bought a CD, payed with cash, as you walked out the door you were forced to sign the contract or they smashed your CD and you were not allowed a return.
    • Nope (Score:3, Interesting)

      by rsilvergun (571051)
      No lawsuits, they just tell you to take it up with the Manufacturer. On the other hand, I'm pretty sure the Manufacturer is required to accept returns in those curcumstances. Now if we could just get a couple tens of thousands of gaming nerds to buy Blizzard software and then return it right to the manufacturer. This would really fuck them over since they'd have to pay for a) their cost on the game and b) the retailer's profit margin. Oh well, people are lazy, this is not going to happen.

    • Re:This is bad. (Score:5, Interesting)

      by AeroIllini (726211) <aeroilliniNO@SPAMgmail.com> on Saturday October 02, 2004 @02:51PM (#10414540)
      Imagine if when you bought a music CD you had to sign a contract saying you wouldn't allow anyone but yourself to hear any time you played it.

      The Hypothetical:

      Me: Hi. I'd like to purchase this CD.
      Clerk: Ok. That will be $14.50.

      **money changes hands**

      Clerk: Now, before you can take this home, the policy of this CD's publisher is that you sign a contract agreeing to their terms.
      Me: Ok, let me read the contract.
      Clerk: It's included with the liner notes.

      **I open the CD and pull out the contract**

      Contract: CDMusic Publishing, Inc. (hereafter referred to as the "licenser") licenses this music to be listened to by the buyer (hereafter referred to as the "licensee"). The licensee may not alter, copy, resell, give away, or otherwise do anything with this recording. The music belongs solely to the copyright holder, and the licensee waives all rights to listen to this music, except on a player manufactured by CDMusic Publishing, Inc., using headphones manufactured by CDMusic Publishing, Inc. at a volume that would not allow non-licensees to hear the music. All other use is prohibited by this contract.
      Sign: ____________________________
      Initial: ________
      Date: ___________

      Me: I don't like this contract. It doesn't give me any Fair Use rights. I want my money back.
      Clerk: I'm sorry, sir. Store policy does not allow me to give refunds on opened CDs.

      The uselessness of the EULA, seen with a different product, comes into sharp focus.
  • by Anonymous Coward on Saturday October 02, 2004 @02:08PM (#10414234)
    ...would it be legal to make backups of the software BEFORE agreeing to the EULA?
    • by Siniset (615925) on Saturday October 02, 2004 @02:23PM (#10414341) Homepage Journal
      that's a really good question... i was going to mod you up, but then realized i had lost my mod points... :(

      But, I think this needs to be decided on soon by the courts: At what point does a EULA come into effect, and if it can come into effect just by opening the shrinkwrap (the infamous shrinkwrap license), can people reasonably be expected to sign away significant rights?

      Because I agree that people can sign away these rights of "First Sale" and other rights in a contract, but what effectively is occuring here is that you have no choice in choosing the contract, you are coerced into aggreeing to the contract, because if you refuse the EULA on a piece of software, you are stuck with a very expensive cd coaster.

      • by ScrewMaster (602015) on Saturday October 02, 2004 @02:39PM (#10414458)
        I think the problem is that the word "sign" doesn't have the meaning that it used to. At no time in the past twenty-five years of purchasing software have I ever been required to "sign" anything. As in taking up a writing instrument and putting my signature upon a piece of paper. The whole point of "signing" a contract was that a. it verified that you agreed to the terms of the contract and b. provided undeniable evidence that you had done so. This whole shrinkwrap/clickwrap/EULA nonsense is so unbelievably offensive that it just makes you want to find your nearest lawmaker / judge / corporate attorney and throw up in his lap.

        There might be a business opportunity for a company that could provide insurance for people that want to buy software. Call it proxy-licensing. You pay a yearly premium to the insurance company, and whenever you buy a new piece of software one of their representatives (known as an "opener") stops by and deshrinkwraps the package for you. If it should be discovered, upon installation, that a clickthrough license is required, he or she would provide that service as well. That way you're off the hook (I mean, hey, you didn't open the box and you didn't click anything) and if the software vendor chooses to sue, the insurance company takes care of it for you.

        P.S. that was a joke but it makes about as much sense as anything else on this subject.
        • thats a little far fetched, but it begs the question that if you werent the person to install and agree to the eula, are you bound by it? i could EASILY have my wife install all my software and agree to the eulas, while i use the software and be able to claim i never saw or agreed to any eula and thus am not bound to it.
      • by 7-Vodka (195504) on Saturday October 02, 2004 @03:06PM (#10414627) Journal
        more importantly, what happens if you don't use the installer that came on the cd to install the software?
        That way you never get to see, much less agree to a eula and yet you have the software installed and running.
    • by isaac (2852) on Saturday October 02, 2004 @03:00PM (#10414590)
      ...would it be legal to make backups of the software BEFORE agreeing to the EULA?

      Who says backups are fair use?

      There are four factors that judges use to make a fair use determination under copyright law:

      1. The "transformative" factor - have you added any value to, or transformed, the original work? Consider a parody - the original is transformed - or the case of commentary, research, or education where the original work is the subject of commentary or used to illustrate a port. A backup copy of software does not transform the original work - indeed, the whole purpose of the backup is to make an exact (or functionally exact) copy of the original.
      2. The nature of the copyrighted work - it is considered a public good to disseminate factual information. Your software might contain facts (e.g. an encyclopedia on CDROM), but you're simply duplicating the original work, not excerpting and disseminating its factual content. This goes to the next point,
      3. The amount and substantiality of the portion taken. In the case of a backup, you're copying the entire work. Backups fail this test, too.
      4. The effect of the use upon the potential market. By making a backup of your software, you are potentially depriving the copyright owner of a second sale in the event your original media are destroyed or otherwise rendered unreadable.

      Any rational analysis of these rules suggest that backup copies are not, in fact, fair use of copyrighted work under the present code and caselaw. Sad, isn't it?

      -Isaac

      • Yes they are (Score:5, Insightful)

        by Solandri (704621) on Saturday October 02, 2004 @03:54PM (#10415053)
        4. The effect of the use upon the potential market. By making a backup of your software, you are potentially depriving the copyright owner of a second sale in the event your original media are destroyed or otherwise rendered unreadable.

        But according to the EULA you're not buying the software, you're buying a license to use the software. Even if your original media is destroyed or unusable, your license is still valid. Either the software manufacturer owes you a free copy of the software (minus media and shipping costs), or you can use your backup. No effect on the market.

        • Re:Yes they are (Score:3, Interesting)

          by isaac (2852)

          But according to the EULA you're not buying the software, you're buying a license to use the software. Even if your original media is destroyed or unusable, your license is still valid.

          Right.

          Either the software manufacturer owes you a free copy of the software (minus media and shipping costs), or you can use your backup. No effect on the market.

          Sorry? The software manufacturer is likely to differ on that point. You still have your license to use said software. That you have lost your installation me

  • by arhar (773548) on Saturday October 02, 2004 @02:10PM (#10414247)
    The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good.

    Thanks for letting us know who the good guys are! I can never figure out who's right or wrong myself, and I like it when I can count on Slashdot telling me that.
  • by Anonymous Coward on Saturday October 02, 2004 @02:12PM (#10414266)
    So say you click thru a EULA, you agree to it. You install the software and then decide to pirate it, saying "the EULA is not legally enforcable".

    You do that, that's retarded.

    You want to know a better solution? Don't agree with the EULA. If you don't like the terms that it sets out for you, stop the install, put the media back in the box, and drive back to the store and bitch about it.

    Then simply don't buy that software from them again.

    You know what would happen if people did that?

    Bizzard (and other software companies) would STOP MAKING UNREASONABLE DEMANDS ON THEIR CUSTOMERS.

    Whala, problem solved.

    And saying that it won't work beause people are sheep is no excuse for your own llamma-like behavior. Stand up for yourself, stop being such a wimp all the time.

    I mean don't you think that it's pretty pathetic to trade your self respect in order to play WoW?

    I do.
  • by bushda (460996) on Saturday October 02, 2004 @02:16PM (#10414297) Homepage
    ...at least when it comes to GPL software I know what I'm getting into when I use it.

    Let's see - software that works the way it' supposed to, has no spyware, and is trustworthy or something with a EULA and none of the above?

    Someone tell me again why Windows and commercial software are so much better than open source / free software because I'm just not getting it...

    - Dave
  • ouch. (Score:4, Interesting)

    by focitrixilous P (690813) on Saturday October 02, 2004 @02:16PM (#10414298) Journal
    This is bad. A Blizzard boycott is not likely, due to the quality of their titles overall. I won't be getting whatever they come out with next, but a million fanboys will.

    The solution? Someone comes out with a popular piece of software with some crazy clause in the EULA. Like "On October 31st, 2009, your right to use this software is revoked, along with your computer, which becomes our property on the date" or some such. People won't care, and when the enforcement lawsuits come to take your computers, we'll see if this curent decision isn't overturned. Bad news in the meantime, though.

    The GPL looks better and better every day.

    • Re:ouch. (Score:3, Insightful)

      by xigxag (167441)
      The solution? Someone comes out with a popular piece of software with some crazy clause in the EULA.

      Sorry but that's silly. If you put an unconscionable clause in a regular ol' pre-Internet-style written contract, a court can easily find it unenforeceable without throwing away the entirety of contract law. So putting a bogus clause in a shrink-wrap contract will have the same lack of effect. It may void that particular contract, whoop-de-do, but it won't strike down EULAs in general.

      We need to stop pi
  • Isn't it time (Score:5, Insightful)

    by rpg25 (470383) on Saturday October 02, 2004 @02:19PM (#10414312)

    ...to open a second front against companies like this, and just refuse to buy their products?

    If Blizzard is a necessity of life for you, like food, I guess you lose. But it seems like a luxury to me, and isn't it time to just refuse to give a company your money if you don't like what they do with it?

    It's your money that's paying for their lawyers.

  • by xot (663131) <fragiledeath@@@gmail...com> on Saturday October 02, 2004 @02:24PM (#10414354) Journal
    they are just going to add to the piracy with rulings and suits like this.A lot of people who used to buy the games are now gonna stop buying them WHICH doesnt neccesarily mean stop playing them.I would just go and download a copy from the net or buy a cheap pirated version.
    A lot of people care gonna take this adly and it might surge up the piracy for Blizzard.Great games though, Warcraft,Starcraft n Diablo esp.
  • bnetd's case (Score:5, Informative)

    by rpdillon (715137) on Saturday October 02, 2004 @02:28PM (#10414382) Homepage
    I've been following this for some time, and was always kind of appalled by how unjust the case is.

    Basically, for those that don't know, bnetd was a daemon (!) that ran under Linux (maybe windows, I forget) that emulated Blizzard's Battlenet server. Blizzard sent out a C&D and took them to court under DMCA. Really, this is a whole lot like DVD Jon in some ways, because Vivendi is contending that the existence of bnetd promotes piracy because it does not enforce CD key checking. In reality, the motive was never to circumvent CD key checking - it was a workaround to allow LAN games over TCP/IP (vice IPX, bleh). The only way to work this is to emulate a battlenet server that everyone can log into locally.

    IIRC, the bnetd team actually asked for Blizzard's help in making CD key authentication work (since the point of the project wasn't piracy) and Blizzard told them to go away. This clearly demonstrates a horrible misuse of the DMCA - basically the circumvention of the copyright protection was unintentional and in fact, undesired.

    Hell, since I'm on the fence about who to vote for, if one of the candidates for president would say "Hey, I'm going to fix the DMCA mess!" I'd vote for him. Too bad that'll never happen.
  • by Hamster Lover (558288) * on Saturday October 02, 2004 @02:29PM (#10414386) Journal
    How can an EULA, which I would hardly class as a contract, take away statutory or court established rights? Can I sign away my right to free speech? Right to counsel? How far does that go and what takes precedence, law or contract?

    Would a lawyer please explain?
    • by Romothecus (553103) on Saturday October 02, 2004 @03:47PM (#10414999)
      Disclaimers: I am not a lawyer. I am a law student. I have not finished my law degree and I am not admitted to the bar in any state. This post does constitute legal advice. I have not even finished reading the entire opinion.


      It's simple. The court does class EULAs as contracts. The whole point of contracts is to exchange rights: I exchange ownership rights of dollar bills in exchange for ownership rights to food every day. So OF COURSE you can sign away rights - that's the point. Some are really hard to sign away - like the right to be alive or the right to compete in a certain market. "Fair use" rights are apparently not hard to sign away.

      I've been trying to explain a certain dichotomy to people on Slashdot for awhile now: civil cases versus criminal cases. Contracts have nothing to do at all with criminal laws and everything to do with civil laws. Civil cases have to do with suits between individuals and society. Criminal cases are about suits between you and society.

      I can sign away my right to own certain money. I CANNOT sign away my right to be not robbed. You can sign away your right to reverse engineer software. All saying you have a right to something (like reverse engineering) means that the default state is that you can do it. You can sign a contract changing that between you and the contracting party - unless there is a criminal law saying you can't do that. So in answer to your question, criminal law trumps contracts which trump civil law.

      In this case, reverse engineering is generally legal. However, to install Blizzard software, you have to agree that you will not R/E their software, or you are not allowed to install it. So you exchange your right to R/E to get the right to use their stuff, which you wouldn't normally have (hmmm, except you already bought it. Although the judge seems to think you bought a license to use it. I don't see how that helps, though.) Important point: in both CA and MO (the states whose law applies in this case), EULAs have been deemed to be valid contracts.

      Now consider the reverse: suppose reverse engineering was illegal in the US. No one is allowed to reverse engineer anything. Blizzard would not be able to hire you (contract you) to R/E anything for them. Just like murder: murder is illegal. In fact, prosecution for murder does not involve the victim: it's a crime against society. The state prosecutes you for murder, not the victim.

  • EULAs (Score:5, Insightful)

    by Sloppy (14984) * on Saturday October 02, 2004 @02:41PM (#10414471) Homepage Journal
    There is some new and very radical stuff in this decision. Read it!

    Basically, they upheld EULAs. Once you legitimize EULAs, then anything goes. So the Fair Use, DMCA, etc. aspects of this case are relatively uninteresting.

    First, the defendants did not purchage the Blizzard software, rather they purchased a license for the software. A sale consists in passing of title from the seller to the buyer. .. When defendants purchased the games, they bought a license to use the software, but did not buy the software. ... Defendants did not produce sufficient evidence demonstrating that title and ownership of the games passed to them.
    What this court has done, is strike down First Sale on a technicality. They're saying that unless you have proof of title and ownership of the software, then you did not buy it.

    This is clearly wrong, but I can't pin down which way they made the mistake. There are two possibilities:

    1. Oops, the defendants didn't keep the receipt. They probably shoplifted.
    2. or .. they're saying that 'title and ownership' of the software, is the same thing as holding the copyright. If you do not hold the copyright to a game, then you do did not purchase a copy of it.
    Both are pretty dumb. I strongly suspect their argument is the second one, but they don't seem to get into much detail about just what they meant by the title and ownership. I think the court got confused between owning copies and holding copyright. If I go into a retail store and buy something in exchange for cash, then whether I have 'title and ownership' of that item, is the same question, whether the item is a CDROM or a carton of milk. In either case, it was the exact same type of transaction: I handed the cashier some money, and they let me walk out of the store withe the item.

    There are some interesting consequences of this you-don't-own-what-yuo-bought decision. For example, you cannot lawfully buy a Blizzard game as a gift to (or for resale to) someone else, unless you obtain distribution rights from the copyright holder. Parents, if your kids want a Blizzard game this Xmas, tell them you can't afford the litigation risk.

    Another consequence is that you can now enter into a contract with someone you have had no dealings or agreements or communication with. You can transact solely with a local retail store who does not represent any other party, and somehow end up in a contract with a software company in another state. You don't even have to send them something with your signature.

    Now that I think of it, I wonder how the retail store was able to lawfully sell you that copy, since they were just a licensee (they do not own the boxes sitting on their own shelves) and agreed to the terms of the EULA when they bought the software from their distributor. Do retail stores now have to negotiate for distribution rights from the makers of everything they sell? I think you just put a bunch of stores out of business, court.

    • Re:EULAs (Score:5, Interesting)

      by rpdillon (715137) on Saturday October 02, 2004 @02:53PM (#10414549) Homepage
      This is not new. I used to game on a Kaypro PC back in the late 80's and I played a flight sim called "Jet". I was quite young (10-11) and I asked my dad (who *is* a lawyer) how much the game had cost (there was the main game plus add-on packs that added scenery). He replied with the amount and I think I said something like "Wow that's a lot of money just to own the game." He then sat me down and explained something:

      "You're not buying the game. You're buying a license to use the game on this computer. So you don't own it, and you cannot do anything you want with it. You *do* own the disk that it's on, but you don't own that data. See what I mean?"

      I understood at the time only somewhat, but my dad was good to explain, because I still remember that.

      My position to this day is that while I do own the disk (cdrom, whatever), I *paid* for the license to use the software; the disc should essentially be free. So this ruling is not merely a "technicality" based on ownership. The judge understood the principle my dad had explained to me. This is not new - this principle has been at work at least since the mid 80's.

      IIRC, I think my dad actualy pulled out the piece of paper that was the license and explained bits of it to me.

      This of course does not address what the license *says* or whether it can take away certain fundamental rights like fair use.
    • Re:EULAs (Score:3, Interesting)

      by myowntrueself (607117)
      Its a bizarre situation.

      One interpretation I make is that if a EULA is a contract, then anonymously clicking through the EULA is equivalent to signing the contract and that therefore anonymously clicking a button in a dialog box is legally equivalent to a signature.

      There has to be something very, very wrong with that...

    • Re:EULAs (Score:3, Informative)

      by Tim C (15259)
      then whether I have 'title and ownership' of that item, is the same question, whether the item is a CDROM or a carton of milk

      Yup. The similarities go on - you own the carton and the milk in it, but not the design of the carton (check it, it's probably patented) and while you're free to use and reuse that carton, chances are you're *not* free to make copies of it. Same with the software - you own the disk its on, but not the data itself. Sucks in a way, but that's the way it is. The various indutries are
  • by Pig Hogger (10379) <pig.hogger@gmai l . c om> on Saturday October 02, 2004 @02:43PM (#10414485) Journal
    The DMCIA is an US law, and it only affects 5% of the population.

    If they're unfortunate enough to be on U.S. soil, developpers only have to host their stuff outside of the USA where the DMCIA doesn't apply, that's all.

    "The Internet interprets censorship as damage and routes around it".

  • by rollingcalf (605357) on Saturday October 02, 2004 @02:47PM (#10414511)
    If you buy it, stop installing at the EULA, and attempt to get a refund within the 30 days but are refused, that should void the contract.

    So go ahead, buy it, open it, and return it. If you get back your money, fine. If you don't get back your money, the agreement is broken by them and you can do whatever you want.
  • This is insane (Score:3, Interesting)

    by HangingChad (677530) on Saturday October 02, 2004 @02:52PM (#10414546) Homepage
    Saying you can waive your rights with a contract that you don't have any ability to object or note disagreements. No recognition that local laws might apply that make some portions unenforcable or voidable. It's insane, which seems to be becoming the norm more often than not.

    Unfortunately it has been established you can waive a lot of your rights in an employment contract, but at least you get to read that before deciding to take the job. In some cases you may even be able to negotiate changes. I've done that. But a EULA there's no place to note objections and no way to get a refund if you don't agree. That's not a contract, that's a hostage. Either agree to these terms or else you're out the money and you don't get to use the software.

    I don't care about the legalities and the law, that ruling doesn't pass the common sense test. I agree EFF should appeal. Hostage taking in America, whether it's done with guns or EULA's should be illegal.

  • by Proudrooster (580120) on Saturday October 02, 2004 @02:57PM (#10414572) Homepage
    In a nutshell, ALL YOUR RIGHTS ARE BELONG TO US..

    Here is what we've learned:
    • An EULA is an enforcable contract as long as it is not too "one-sided" or "unconscionable"
    • You don't own software even when you pay money for it
    • The DMCA allows reverse engineering for the purposes of interoperatbility, but since they didn't write a client then this does not apply
    • You are allowed to waive your rights guaranteed by law if you click on a EULA
    • Different states have different extensions to contract law
    I would like to ask this court this questions:
    1. What if the Jung did NOT admit to clicking or reading the EULA? Would it still be valid? What if a third party installed the software?
    2. If the Blizzard EULA is not one-sided, what constitutes a one-sided contract?
    3. How can people sell used Blizzard games on EBAY without the permission of Blizzard? Why isn't Blizzard enforcing their "contract rights"? After all, in order to transfer a Blizzard software license, one must get permission from Blizzard, thus sayeth the EULA.
    4. What if Jung had started working on a new client? Would that have passed the Interoperatbility test and allowed him to continue development of a alternate bnet server?

    While Blizzard does show injury in the fact that people could use the Jung's bnet server without having a legal key, I think this ruling is extremely one sided.

    Clickwrap should NOT enforcable contract law!
  • by ortcutt (711694) on Saturday October 02, 2004 @03:09PM (#10414664)
    This is a setback but I it won't have precedential value unless the 8th Circuit Court of Appeals upholds the decision. Wait until then to get really indignant.
  • by Fnkmaster (89084) on Saturday October 02, 2004 @03:31PM (#10414881)
    This ruling is wrong on many fronts, and it is devastating to the software world as a whole if these interpretations were to be considered precedent. Here's a summary of the relevant parts of the decision itself:


    The decision acknowledges that an EULA is a contract of adhesion, but rejects that prohibitions against investigation or reverse engineering of a product are unconscionable terms and thus the fact that it's a contract of adhesion is irrelevant (they partially base this on the fact that the party to this dispute was smart enough to reverse engineer the product, and thus should have known well enough to read and understand the terms of the EULA, unlike a normal user - no, I'm not kidding on this).


    They then go on in the next section to state that fair use rights don't apply here since the EULA waives them - again, they've already asserted that there is nothing unconscionable in the EULA, and they fail to consider whether waiver of fair use should be considered unconscionable in a contract of adhesion, they just assert it indirectly (basically their argument states by implication that Joe Average doesn't care about his fair use rights, and thus their prohibition in a contract of adhesion is not a radically unexpected or unconscionable term and is thus PERMITTED).


    As for EULA terms constituting copyright misuse, they don't really make any assessment to speak of other than to say that this may be an affirmative defense to copyright violation, but that portion of the case has been dismissed already, and this doesn't have much to do with the fact that there was a contract formed by the EULA.


    With respect to the DMCA, the court rejects completely the notion that 1201(f) (the reverse engineering exception in the DMCA) is applicable unless the relevant party has permission to circumvent it. This makes no sense, since even the DMCA doesn't state that, they infer it from another case. In essence, they interpret the word 'use' in the DMCA to mean 'use as permitted by the EULA', and thus breaking the EULA contract now AUTOMATICALLY means you are no longer permitted to take advantage of the reverse engineering exception of the DMCA under any circumstances, regardless of your intention to circumvent copyright.


    The next part - where they find that they state that bnetd was not an 'independent program' according to the DMCA is completely wrong. They say it fails to be independent because it replicates features from the existing server program created by Blizzard. This is a definition of 'independent program' that only the most twisted logic could accept.


    As to their overall conclusion that the defendents were trafficking in a circumvention device as defined by the DMCA, they come back to their rejection of the reverse engineering defense - since they reject that, and have already stated that the action of creating bnetd constitutes 'copyright infringement' (meaning presumably violation of the DMCA), there can be no doubt that it is a cirumvention device (though they don't seem to address section E(2)(A) directly - what was the primary purpose of the device).


    I understand that it's hard to argue that the primary purpose of Bnetd wasn't to allow circumvention of copyright, and on that point I can understand where the court's hands are tied by the poor legislation. The rest of this decision is filled with misunderstanding, misinterpretation and half-truths.


    Anyway, this was a quicky analysis and I'm sure I missed stuff in here, so feel free to correct or add to this where I made mistakes.

  • by Todd Knarr (15451) on Saturday October 02, 2004 @04:37PM (#10415397) Homepage

    I think the case that needs brought isn't one based on the enforceability of an EULA. In all but a handful of states sales are governed by the terms of the Uniform Commercial Code and there's no exception for software. If the seller didn't make you sign an agreement before or when they accepted your money and gave you the goods, the UCC defines the terms of the sale and the rights you and the seller have after the sale. What we need is a case brought on the grounds "I bought this software. No other agreement was demanded at the time of the sale, so the terms of sale are those of the UCC. Since I declined the after-the-fact EULA and it's changes to the terms, what it says is irrelevant and the terms of the sale remain the terms of the sale at the time it was made. Judge, either make them justify their case under the terms of the sale or make them stop harrassing me by demanding I adhere to terms that aren't part of the contract.". This would really damage the case of companies like Blizzard, probably fatally. It'd also put them in the position of either having to forget about enforcing those unreasonable terms in the EULAs or require every mass-market sale to be preceeded by paperwork neither the customers nor the stores would find acceptable.

    • by optimus2861 (760680) on Saturday October 02, 2004 @10:05PM (#10417277)
      What we need is a case brought on the grounds "I bought this software.

      Part of why this ruling is so devastating, as has been pointed out elsewhere in this discussion by now, is that this judge said, flat-out, that you don't buy software; you buy a license to use software.

      He essentially gutted the entirety of Section 117 [copyright.gov] of copyright law, by taking out the entire underpinning of it. Since nobody actually owns copies of programs any more, by this inept judge's reasoning, nothing in 117 applies the way I see it.

  • Do what I do (Score:4, Interesting)

    by earthforce_1 (454968) <earthforce_1@yah[ ]com ['oo.' in gap]> on Saturday October 02, 2004 @04:39PM (#10415406) Journal
    Pay to have a 12 year old purchase and install the software on their own PC, and leave the room while they do it. (They are the ones who will be playing the game anyway) Minors cannot be legally bound to any contract.

  • by maxpublic (450413) on Saturday October 02, 2004 @04:57PM (#10415523) Homepage
    It's a game company. Nothing you will ever get from them will be of any value whatsoever beyond idle entertainment. So stop buying from them.

    I did this the moment I heard about the bnetd case a couple of years back. Vowed never to purchase one of their products again, and I haven't. If you're concerned about the company acting like one of the spawn of Satan (which they are) then DON'T PURCHASE THEIR PRODUCTS.

    And once you decide you actually have the balls to follow through, and aren't just some little prick on slashdot you SAYS he'll do this but then buys everything that Blizzard dumps on the market anyway, send them a letter explaining that their licensing practices are just plain evil - as is their attitude towards bnetd - and that's why you've decided never to have anything to do with them again. Give them a big "fuck you and the horse you rode in on".

    I did this. I seriously doubt it made any difference at all to the company, but it sure was fun. All Blizzard does is produce games, so unless you're really so much of a loser you can't stand the thought of going cold-turkey where Blizzard is concerned it really isn't that big of a deal to tell them to 'piss off'.

    You could even - gasp! - send the $40 you'd spend on a Blizzard game to the folks who need it for the appeal.

    Max
  • by mark-t (151149) <markt@lynx.b c . ca> on Saturday October 02, 2004 @06:47PM (#10416214) Journal
    I think that the crux of the problem with the DMCA is that even its most avid proponents are completely unable to provide any clear and consistent reasons for it to have ever existed in the first place except for the occurrence of activities which were already very much illegal under plain old ordinary copyright law. Or if they are able to cite any examples at all of activities that ought to be illegal and are explicitly made so by the DMCA, they are unable to explain _why_ such activities should be illegal without entering into direct conflict with other rights and permissions which are granted by fair use and even some property laws.

    What these people needed to realized was that creation of a new law wouldn't actually solve that problem. If people were going to violate copyright, they certainly wouldn't have any compunction about violating the DMCA. That's not to say that disregard for copyright should be tolerated, but making new laws cannot and will not ever hope to solve the problem. I honestly wish I could give an answer to what I thought might be an effective solution, but I don't know that there is one. Media piracy is a social disease, not a technological one, and I wish with all my heart and mind that somebody with the power to change this bad law would listen to reason before the otherwise almighty dollar sign.

    What's interesting about all this is that if the DMCA appears to be more effective at making criminals easier to find, it's only because it's so much easier to infringe on the DMCA than on copyright (as it was before the DMCA) that there's suddenly a lot more people you can actually call criminals in the first place.

  • by gsfprez (27403) * on Saturday October 02, 2004 @07:38PM (#10416574)
    The courts say that you are not buying the software - but only a license to the software.

    great - then according to that logic, there is no inherent value in the Final Cut Pro HD box at Frys so far as the installation CD is concerned....

    so as long as you tear open the box, remove the DVD, and leave the license agreement (all Apple software has full paper versions of the license agreement in each box of software) according to the court, you haven't actually stolen anything.

    they clearly state that the CD has no value, there is only value in the license agreement. So, don't take the license agreement. You should be in no deeper poop legally than if you downloaded it off kazza - because you didn't take anything of value.

    If you take that CD and put it on your wall or use it as a coaster, and never stick it in your computer - then would you technically be in any legal trouble at all? I can't see how.

What this country needs is a good five cent microcomputer.

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