Blizzard Stomps Bnetd in DMCA Case 773
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."
Bad wording... (Score:1, Insightful)
Umm... with that wording wouldn't that make it illegal to use free software with windows?
Re:sold down the river (Score:5, Insightful)
If you want it to get better, you have to do something about it, not just sit on your ass and say "it will probably get even worse!"
When things get better, it's cause someone stood up and said "I want to make things better!"
Think american revolution, WW2, and the people who protested vietnam. These people did something, because the faced the fact: Yes, if you keep sitting there complaining,
IT WILL GET A LOT WORSE!
Yes... (Score:3, Insightful)
So, yes, you're right. Too bad the media industry doesn't know what's really going on at times like this. They should realize they have to fully understand the article, since otherwise they're confusing the public, and then the public gets the wrong idea too, and then everyone is worse off.
Seems to me to be a bit... *duh* (Score:5, Insightful)
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.
Re:Well, we wanted a ruling on EULA's (Score:4, Insightful)
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".
Okay - call me a Linux zealot, but... (Score:3, Insightful)
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
Isn't it time (Score:5, Insightful)
...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.
Re:Er...whoops. (Score:5, Insightful)
You can bet your ass that Blizzard's lawyers, and EA's lawyers, and MS's lawyers, and Sun's lawyers, and IBM's lawyers, and probably even SCO's lawyers are reading up trying to figure out how they can best leverage this into their own products.
Next thing you know, your iPod will only work with iTunes.
Oh. Right...
Re:Well, we wanted a ruling on EULA's (Score:3, Insightful)
Re:Well, we wanted a ruling on EULA's (Score:5, Insightful)
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.
Re:This is bad. (Score:3, Insightful)
Re:for those of us who value fair use backups... (Score:5, Insightful)
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.
No, EULA's don't come with software. (Score:5, Insightful)
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."
Someone please explain to me... (Score:5, Insightful)
Would a lawyer please explain?
Time to Burn Some Karma But (Score:2, Insightful)
I'm going to commit a holy Slashdot sin, but do you think that, gee, maybe the easy of piracy MAY have something to do with it?
One of the reasons that Blizzard has been successful is that they make multiplayer games that require that you BUY THE GAME. None of this play it for a year and justify to yourself why you didn't buy it by saying "This sucks, its just like War2. I'm not going to buy it".
It's not like Blizzard isn't providing enough servers or bandwidth or like its hard to find a game.
We should be protecting Blizzard as one of the few quality game companies left making PC games, not attacking them because they would like to remain profitable.
You don't like it? DON'T BUY THEIR GAMES OR PIRATE THEM.
Brian Ellenberger
It's not good guys vs bad guys... (Score:3, Insightful)
It's like Napster. Napster were unquestionably crooked when they started, and the fact that the RIAA was bent as hell shouldn't have led anyone to lionise them... but it did. Nobody seems to have cared much about mp3.com, who were trying to operate within the spirit of the law but turned out to be violating the letter.
The FSF are the good guys, right? But the core difference between the GPL and the LGPL is that the GPL asserts a copyright on the interfaces exported by the GPL-ed code, otherwise you could simply ship GPLed code as a shared library and treat the interface as a firewall between two incompatible licenses.
It's all a matter of reputation, really. All you can do is keep reminding people that just because you agree with someone doesn't make them the "good guys", or that you disagree that doesn't mean they're the "bad guys".
Boycott Blizzard? (Score:1, Insightful)
Blizzard are operating within accepted legal boundaries and did not put these laws on the books. Blizzard are not responsible for this decision, only for making a contest out of it.
And honestly, in the long run, I'd rather take an outcome like this than let the laws sit on the books untested for years or decades. Now that it has been tested, there is palpable outrage. If things can be fixed, this has provided the motivation to start fixing. If not, it only makes plain what was already written into law.
I can't see how Blizzard are to blame for this. Perhaps they are on the big list, but not before the POTUS, Congress, House, etc.
EULAs (Score:5, Insightful)
Basically, they upheld EULAs. Once you legitimize EULAs, then anything goes. So the Fair Use, DMCA, etc. aspects of this case are relatively uninteresting.
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:
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:EULA is a contract (Score:5, Insightful)
You already paid for the right to use the software when you paid the purchase price. Otherwise, what were you paying for? The packaging?
So, what's the problem? (Score:3, Insightful)
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".
Re:Well, we wanted a ruling on EULA's (Score:3, Insightful)
Re:No, EULA's don't come with software. (Score:5, Insightful)
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).
Re:Plain Engrish? (Score:3, Insightful)
That's very specific. Nasty, but specific.
Re:EULA is a contract (Score:3, Insightful)
So technically it IS a contract..
I gain the right to use their software when I plonk my money down on the counter and leave the store.
Once I install the software, I'm presented with a contract I obstensibly have to agree to in order to make use of what I have just purchased. I receive nothing in return for agreeing to this demand, and, given that no retailer I'm aware of will accept an open box software return, my agreement is made under duress (i.e. if I don't agree, I forfeit my purchase price.)
In addition to the problems above, the vendor making demands on me after the purchase is made seems to violate the doctrine of first sale--of course, IANAL.
Re:sold down the river (Score:2, Insightful)
When you begin a point with the phrase "how monumentally naive" and then continue on to discuss a small faction of society pushing to get weed legalized, highlighting their failure as indicative of "the system" being "unresponsive to the needs or desires or the will of the people," you make me want to cry for the people who have to deal with you every day.
Society, as a whole, doesn't give a fuck that weed is illegal.
Get over it, start complying with the law, or be prepared to face the consequences.
I read it and it makes me sick! EULA = Contract (Score:4, Insightful)
Here is what we've learned:
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!
Re:Plain Engrish? (Score:4, Insightful)
Funny, that.
Guess who made SDL?
Sam Lantinga.
Guess who funded him (insofar as he was funded)?
Loki.
Guess who hired him after Loki passed away?
Blizzard.
Blizzard is starting to remind me of Microsoft (Buy Bungie, buy Connetix, buy Mongomusic). I remember when the technically-superior Total Annihilation was squashed by the better-marketed Starcraft. Every time I really start to like something, Blizzard starts sticking their fingers into it and ruining it.
Re:Seems to me to be a bit... *duh* (Score:2, Insightful)
Re:Plain Engrish? (Score:4, Insightful)
Real boycott howto:
Re:sold down the river (Score:5, Insightful)
Just because there isn't massive popular sentiment against what we here think of as an injustice doesn't mean it's not worth fighting against. You have to start somewhere.
District Court -- Not That Big of a Deal (Score:3, Insightful)
Re:Plain Engrish? (Score:3, Insightful)
Now if only they'd actually give you your money back if you didn't agree with the eula...
Re:Plain Engrish? (Score:2, Insightful)
This is like a new dell computer. You can't read the eula till you start the machine and you can't start till you agree with something you haven't read. Where oh where is America the defender of rights? Too busy sucking up all that pac money and selling consumers down the river?
Re:Same legal principles in GPL and open licenses (Score:3, Insightful)
No, you've got it all wrong.
There's one great difference between GPL* and EULAs. The GPL grants you rights when EULAs takes away your rights. There's no need to accept GPL if you just want to use the software, but then you are bound by the copyright law and therefore cannot disribute the software. EULAs on the other hand take away the rights granted by the copyright law, and you have to accept it before you can use the software.
Here at /. people are pissed because they have no way of reading contract when they do the purchase but still have to accept it. Remember that most stores don't accept boxes that have been opened back.
GPL, on the other hand, you don't need to accept if you just plan to use the software. It only comes to play if you plan on using the software on ways that are restricted by copyright law.
[*] and other similar licenses
Re:Well, we wanted a ruling on EULA's (Score:4, Insightful)
only in nations allowing slavery.
Yes they are (Score:5, Insightful)
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:Plain Engrish? (Score:2, Insightful)
Friend: "Hey, Starcraft 2 came out this week! Man, it's looking totally sweet. I can't wait to play!"
Me: "I'm boycotting Blizzard. They're evil and have no regard for fair use and personal liberties. So I'm not getting Starcraft 2 and neither should you!"
Friend: "Ahahahahahahahaha, yeah right." *leaves to buy SC2 and have lots of fun with it*
(The solution is, of course, to download it and play it anyway, but good luck getting that to work with online multiplayer without a valid key! Also it's illegal. Go figure.)
Re:EULA is a contract (Score:3, Insightful)
Re:Time to Burn Some Karma But (Score:3, Insightful)
Console: Take the disk, pop it in, play
PC: Double check the system requirements, update hardware if needed (possibly many $$$$), hope like hell it doesn't install something that causes BSODs or erases USB drives as some protection has been known to do.
Right, piracy is the main reason for the decline.
Re:ouch. (Score:3, Insightful)
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 pinning our hopes on an activist judiciary. They may nick around the edges of UCITA but the killing stroke is not going to happen. At this point, the only way to substantially limit the scope of EULA's is through legislative amendments.
Re:No the big problem is... (Score:5, Insightful)
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.
so stop purchasing from Blizzard (Score:3, Insightful)
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
Re:Do what I do (Score:1, Insightful)
IANAL and this does not constitute legal advice but if you think being cute like that will help you in a court of law, I foresee a very large judicial bootprint on your ass at some point in the future.
Vote with your feet (Score:2, Insightful)
To sales@blizzard.com:
Re:Well, we wanted a ruling on EULA's (Score:3, Insightful)
Re:for those of us who value fair use backups... (Score:2, Insightful)
You'll be fine though, if you have a good pre-nup.
Others talk game play, you talk eye candy (Score:3, Insightful)
It is simple. People are talking about different things. Others are talking about game play, you are talking about eye candy. Neither is right or wrong, your personal preferences are what they are. All that we really know is that the game play oriented audience seems to be larger given the monumental and continued sales. PR can not make a bad game sell beyond a brief period after the game initially hits the shelves. When you have a game like Starcraft that sells for years that is word of mouth not PR.
Re:Plain Engrish? (Score:2, Insightful)
The crux of the problem with the DMCA... (Score:3, Insightful)
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.
Re:GPL != EULA (Score:2, Insightful)
Keep in mind this main difference: if you reject the terms of the GPL, you can still use and/or change the software as much as you want. If you reject the terms of an EULA, then, in theory, you cannot use the software *at all*. Big difference.
Shoplift Apple software then (Score:3, Insightful)
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.
Re:40 dollar contract. (Score:3, Insightful)
Right.
I am the customer.
I paid them money for their said product.
What were you saying again? About their terms?
Re:Right of First Sale in 2001 (Score:3, Insightful)
I think I'll go publish a book. On the back cover in small print iw will say:
The text of this book is not sold, but instead licenced to you. In exchange for this licence to read the text, you waive all fair use and first sale rights. Yada yada yada.
Let a court choke on THAT one! They make all all sorts of stupid rulings relating to software that they would never dream of making in relation to an ordinary book. A copyrighted work is a copyrighted work. If you can EULA software then you can bloody well EULA a book.
-
Actually... (Score:4, Insightful)
* Get a lot indignant consumers
* Buy Latest Blizzard game in droves
* Open the box. Start installing the game. Read the EULA end-to-end, noting the parts you don't like. Stop the install by declining the EULA.
* Attempt to return the package to the store; politely express disatisfaction about their refusal to accept EULA returns. Note the parts of the EULA you find unacceptable. Agree that you will take the issue up with the manufacturer.
* Contact Blizzard to obtain an RMA, politely informing them you want a rebate since you don't agree with the EULA, and your local vendor declines to provide one. Be sure to again note the parts that you find offensive, and why. Return all the game materials to Blizzard.
* Repeat every eight weeks. After all, you do want to see whether they've changed the agreement to something more reasonable. =)
Note, you may be out about six bucks per cycle [slashdot.org] doing this. If it weren't for that, I'd be pleased to join in such a movement. While I like Diablo, I'm afraid Warcraft bores me once I finish clicking through the "You're making me seasick!" [loyola.edu] gags.
Re:We need to bypass the EULA (Score:5, Insightful)
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.
Minor Contract (Score:1, Insightful)
My take on it. (Score:3, Insightful)
The press release came today from the EFF that the bnetd vs. Blizzard case had been put to rest. In essence everything that has been urban myth till now is dispelled. Reading the summary judgment, it looks as if a software producer can place whatever terms they want in their license and force you to agree to it. The case was brought under the DMCA initially and apparently expanded to include breach of contract and agreement at a later time.
The judgment can be found on Freedom To Tinker, at http://www.freedom-to-tinker.com/doc/2004/bnetd_30 sep.pdf. It's an interesting read -- I mostly ignore the case citings and get to the meat of the judgment itself, which can be fairly easily followed. The citings will lose you.
What is particularly disturbing about this case is the fact that it was settled via summary judgment. IBM in SCO vs. IBM is fighting tooth and nail right now to have a summary judgment issued that they have never infringed on SCO's copyrights while working with Linux. According to Groklaw, in order to dispute or dispel a partial summary judgment, you need only show disputed facts. The judge in this case apparently felt there were no disputed facts -- a sad tale indeed.
First, the small print in the system requirements area that says this software is subject to an EULA is enough of a notification to the purchaser that they are not purchasing the software, they are purchasing a license to use the software. I don't consider that a big enough notification then. The limitations and restrictions placed in the EULA also supercede all other copyright, federal, and state laws -- rendering the first sale doctrine and reverse engineering for compatibility moot.
Second, the Court in this matter has never tried to return software to Best Buy. Every game purchaser in the world is familiar with the "return it unopened or exchange it for the same product if opened and defective." Yet returning the software to the store it was purchased from was listed as an option by the Court. This is not a feasible option - no store returns opened software, although I wager if you had a Federal Judge ask the question the stores would chime, "Sure we do!" If you're a young male trying to return the software though you'll be treated like a black man at a white water fountain in the early '50s -- with suspicion, distrust, anger, and outright hatred. (pp. 6-7, "The terms of the EULA and TOU themselves do not appear on the outside packaging. If the user does not agree to the terms of Blizzard's EULAs or Battle.net TOU, he or she may return the game for a full refund of the purchase price within thirty (30) days of the original purchase.") If the court is referring to the option to return the software directly to the publisher let me ask you, have you ever tried that? Not to mention the cost you incur for shipping and the fact the the publisher may still reject your refund.
The fact that the EULA is available nowhere outside the physical media of the CD-ROM also wasn't an issue. The fact that a contract normally requires agreement between both parties wasn't an issue. (In one way I can see this - if actions were taken by both parties that could be taken to reasonably assume they had knowledge of and agreed to the contract then the contract would be binding. This doesn't explain how my son can agree to an EULA at age seven - despite the fact that he can install software. This doesn't explain what happens if you copy the CD-ROM, delete the EULA from the CD-ROM, and install the software with a blank license agreement. This doesn't explain the software that preinstalls things on your machine before you ever even see the license agreement - notably music CDs with their (in)famous copy protection methods.
bnetd was originally brought around by Blizzard's inability to deal with cheaters, hackers, and huge amounts of downtime on Battle.net. I like to thi
Re:No, EULA's don't come with software. (Score:5, Insightful)
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.
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.
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.
Re:sold down the river (Score:4, Insightful)
Stupid black people, wanting equality. Society, as a whole, doesn't give a fuck about a few people being forced to the back of the bus.
Get over it. Start complying with the law, get to the back of the bus, or be prepared to face the consequences.
Re:EULA is a contract (Score:4, Insightful)
I don't see why. What basis is there for them to have any force? They meet pretty much every definition of "not a contract". They're additional conditions after the sale, which is a no no under every consumer protection law ever dating back centuries. They're contracts of adhesion, because you don't have the opportunity to negotiate. They're questionably contracts at all, because copyright law explicitly provides you with every right you need to use software you've bought, EULAs notwithstanding. Right of first sale generally indicates that if it looks and acts like a retail purchase, it _is_ one, no matter if after the fact a company wants to call it a "license". The only rationale for them to have any effect is, in essence, the argument that if you throw a ton of text at someone with a button labelled "I Agree", that somehow a legally binding contract is created. This crap would get laughed out of court, and public opinion, in ANY other context. Period.
Even more than that, whats the moral imperative for an EULA? Software publishers don't need any of the rights they claim to market a product. How is the right to forbid reverse engineering (despite explicit legislation preserving that right!) essential to them? Or the right to forbid users from measuring and making statements about performance? Or, in fact, ANYTHING except "you can't make copies of this and give them to all your friends", which is neatly covered by copyright law?
An EULA could be binding if it was presented in terms of a contract, like, say, a cell phone contract. There's a form, you fill it out, it's countersigned by the retailer, you pay your money, you go home. The software industry wants to be able to generate onerous licensing terms AND have the benefit of acting like a normal retail sale and it just pisses me off that so many judges seem to buy into this crap.
Even if you could return it, no questions asked - it STILL wouldn't pass muster in any other context. It's been tried in tons of industries. The auto industry tried it. The book publishers tried it. The music and movie publishers tried it. Every other time, it's been shot down. I don't know what the hell is wrong with this judge. This is basic, basic stuff about the integritry of the market. Think of how shitty your life would be if everything you bought could have binding, post-sale conditions of use. Think how broken and fucked up our economy would be!
Re:EULA is a contract (Score:3, Insightful)
I've said it before - the industry wants it's cake and to eat it too, and the courts are letting them. To a degree which would be unthinkable in any other industry. Books are sold, not licensed. Sometimes special books/documents are licensed, under an NDA or similiar - you agree to and sign the NDA BEFORE you get the book. It's a term of the sale, not a post-sale condition. That makes all the difference in the world. I can't think of a single non-software item where you pay up front, but must agree to terms of use before you are actually able to use it. There's a lot of case law about behavior indicating acceptance of contracts - whats that have to say about minors buying software? The industry will happily sell to minors, who can't legally agree to the EULA. That's either fraud (they're taking money in exchange for a license they can't grant), or as long as you're under 18 you can happily ignore EULAs and simply obey copyright law. How about the fact that they present this as a retail sale in general? The software industry, both retailers and distributors, does nothing to support it's contention that software is licensed and not sold. Software companies even report sales as sales, and not licensing income. Everyone, from CEOs to accountants to clerks refers to it as a sale. It's ridiculous to let this sort of double talk stand.