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."
Well, we wanted a ruling on EULA's (Score:5, Interesting)
Joy Joy.
Been saying all along you CAN waive rights via agreement of a contract..
This is bad. (Score:5, Interesting)
for those of us who value fair use backups... (Score:5, Interesting)
Re:Plain Engrish? (Score:5, Interesting)
This ruling gives publishers the ability to take away all consumer rights under copyright law. It basically overrules copyright law with whatever they put in their EULA.
You can't play without clicking through the license. You can't read the EULA without opening the package and running the software. You can't return unopened software (to most stores, again for mostly copyright reasons).
So unless you consent to the possibility of giving up all rights, you should not purchase any software. You have no idea what the restrictions of the license are until after you've given them your money.
An extension of this could mean that any documents you create under a future version of MS Office could potentially be copyrighted by MS. Granted that would be a very stupid thing for MS to do, but this ruling seems to make it possible.
ouch. (Score:4, Interesting)
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.
In a bid to control piracy.. (Score:3, Interesting)
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.
Re:Plain Engrish? (Score:4, Interesting)
Boycott Howto:
*Get a lot of money (or indignated consumers)
*Buy Latest Blizzard game in droves.
*Open the box. Copy the game. Copy the CD-Key. Scratch the cds a little.
*Return all the package to Blizzard, arguing you don't agree with the EULA.
*Post Cd-keys somewhere on the net.
*Repeat (since you got the money back, why not?)
Re:Plain Engrish? (Score:3, Interesting)
This seems like as good a time as any to point out that Linux games are getting better and better. You can download wesnoth, Neverball, and other great titles for free. Even get the source on and learn to write computer games yourself if you like.
The real breakthrough in recent years has been the massive work that has gone into the cross-platform SDL toolkit. It's really amazing, and not to discount anyone else's work, but I see a lot of great stuff coming out ever since SDL became commonplace.
Nope (Score:3, Interesting)
Re:Well, we wanted a ruling on EULA's (Score:5, Interesting)
Re:for those of us who value fair use backups... (Score:5, Interesting)
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.
Re:sold down the river (Score:5, Interesting)
How monumentally naive. Thousands of people have stood up to do something about the ridiculous drug laws in this country. NORML has been working for 30 years to repeal the marijuana laws. They have had no success at the federal level. Imagine spending half of your life to overturn ONE stupid law, and meeting with failure. Face it. The system is unresponsive to the needs or desires or will of the people.
If they won't give you a refund... (Score:4, Interesting)
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.
Re:EULA is a contract (Score:5, Interesting)
You'll note that the only thing that you get when you purchase Warcraft III is a working CD. The manual can crumble to dust upon opening the package. The software can do absolutely nothing at all, or for that matter it can cause your monitor to explode and ruin both your eyes, and as long as the CD is good, then Blizzard owes you nothing. In the event that the CD doesn't work Blizzard can at their option send you a Tootsie Roll(TM) Blow-Pop and that's it. If this license is binding then Blizzard has the option of taking your $50 and giving you a blank CD. Seems like bullshit to me.
Re:This is bad. (Score:5, Interesting)
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.
This is insane (Score:3, Interesting)
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.
Re:EULAs (Score:5, Interesting)
"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.
Backups probably *AREN'T* fair use! (Score:5, Interesting)
Who says backups are fair use?
There are four factors that judges use to make a fair use determination under copyright law:
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
Re:for those of us who value fair use backups... (Score:5, Interesting)
That way you never get to see, much less agree to a eula and yet you have the software installed and running.
No the big problem is... (Score:5, Interesting)
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).
Re:EULA is a contract (Score:4, Interesting)
Pretty devastating ruling (Score:5, Interesting)
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.
Re:Pretty devastating ruling (Score:1, Interesting)
This is actually EXACTLY the sort of ruling SCO would need....
Re:EULA is a contract (Score:4, Interesting)
Re:for those of us who value fair use backups... (Score:1, Interesting)
it sucks but... (Score:2, Interesting)
Re:Easy fix (Score:2, Interesting)
But then I'm not a lawyer. Do we have any of those on YRO?
Re:Right of First Sale in 2001 (Score:5, Interesting)
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.
It seems to me... (Score:1, Interesting)
Here's what I don't understand, though:
They then go on to say,
(emphasis mine)
Can't the judge read?
But what people don't realize... (Score:2, Interesting)
The bnetd team wanted to get the cdkey checking software. They would impliment this into their source. Thus Blizzard's cd key checking software AND algorithms are out in the wild.
Does no one else see a problem with this? This means that people can re-code it using the algorithms in there and create keygens. Not just any keygens, but real keygens to create real keys, ones which can be allowed onto battle.net.
Now not only does this completely go against Blizzard's policies, but it also takes away from their sales. They lose... completely. So yes, it was a GREAT idea that Blizzard didn't give them that cold.
Silly
Re:Plain Engrish? (Score:1, Interesting)
Comment removed (Score:2, Interesting)
We need to bypass the EULA (Score:5, Interesting)
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.
Do what I do (Score:4, Interesting)
Re:This is bad. (Score:2, Interesting)
What would you say then? "So don't buy bread that doesn't put its conditions in plain wording on the outside of the package. Nobody put a gun to your head and made you buy food."
Unreasonable is unreasonable, unfair is unfair, and wrong is wrong. Whether it deals with a luxury or a necessity, this sort of licensing is wrong. It's days like this I'm glad I live in a country with better consumer protection laws than that mess down south you presumably call home...
Re:for those of us who value fair use backups... (Score:3, Interesting)
Re:EULAs (Score:3, Interesting)
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:Do what I do (Score:4, Interesting)
Yeah, but if you leave aside the 'paying the 12 year old to click the button' part, where is the flaw here? If Blizzard et al really want the EULA to be a contract, that implies that 12 year olds cannot, of their own accord, install their software, plain and simple.
Or is it simply that they want a right to have their EULA given force without regard to tort law?
Blizzard Evil? Probably not. (Score:1, Interesting)
These servers add a lot more online functionality than what is offered by other online games.
If people start using bnetd, Blizzard no longer has control over one thing that differentiats them from other online RTSs.
I understand that the EULA is a bit scary, but without it what could Blizzard use to defend themselves from people like the bnetd developers, or others?
Re:No the big problem is... (Score:3, Interesting)
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 to refuse to agree to the EULA but it would be very much up to the retailer to decide what to do in terms of a refund. I don't know how similar it would be in th e USA.
If you don't agree to the EULA you have no contract of any form with the manufacturer, just the retailer, which in turn has a contract related to the sale with the manufacturer. Thus you can only influence the manufacturer via the retailer.
Minors. (Score:2, Interesting)
Re:Well, we wanted a ruling on EULA's (Score:1, Interesting)
That's the way it is in all capitalist societies since time immemorial for all forms of produce. For some reason however, in the current day, computer software is viewed as something special and thusly, deserving of different laws.
All novel technolgies go through this legalistic process -- the parties with an interest in the control of said product petition the lawmakers of the country to grant them special favours. Normally the judges and politicians see the absurdity of these protestations and act accordingly in the favour of the public. However, the computer industry (by accident or design, I'm not sure which) has managed to stay the day of reckoning until now; a coincidence which is significant once one acknowledges that the computer industry is now worth billions of dollars. If this battle had been fought as recently as ten years ago, the outcome would no doubt have been very different; the software companies unable to afford the asking price for special consideration from the legal system.
"According to law in the USA, that's obviously the way it is meant to be, but look where we are now."
Of course that's how it's meant to be. However, it doesn't help that Bush was "elected" in 2000. Please consider your vote in November and remove the incumbant tub of lard and replace him with the donkey shaped tub of butter. Neither are much use beyond improvised sexual lubricant, but butter tastes better than lard.
Now. Who can argue with logic like that.
Re:Yes they are (Score:3, Interesting)
Right.
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 media is your problem, not the manufacturer's problem.
As another poster pointed out, 17 USC 117 grants an explicit right to backup copies of software you own. But of course, since consumer software companies claim to confer no such transfer of ownership at time of sale, this clause is ineffective.
I think it sucks, too. The twisted logic that makes walking into a store, plunking down your cash, and walking out with a box somehow "not a sale," or that makes contractual terms presented unilaterally after the offer and acceptance (i.e. the EULA) somehow binding is going to totally eviscerate most consumer protection laws in this country once manufacturers of other goods twig to it.
-Isaac
40 dollar contract. (Score:3, Interesting)
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..
There are times when the market isn't correct. (Score:3, Interesting)
If EULAs on bread became common in the industry, yes, I do. And it will start somewhere, perhaps only with one bread maker. Then other corporate bread makers, seeing how they can insulate themselves from liability further, will emulate this example.
Late in the movie "The Corporation", a philosopher describes an interesting change regarding firefighting which I'll attempt to summarize here. There was a time when firefighting was privatized. Fire trucks would drive right past a burning house if that house didn't bear the insignia of that firefighting organization because firefighting was a contracted deal; the insignia on the side of the building indicated this deal. Over time we came to realize that everyone needs firefighting and therefore we should municipalize this service. The point being that running things according to market politics was not the most advantageous strategy and alleged market efficiencies weren't as important as keeping people safe from fires. Perhaps there are other things which obey the same general principles--we should be willing to exchange alleged efficiencies for a more uniform delivery of goods and services.
EULAs haven't commonly been available on the outside of packaged software for a long time (if ever) and I doubt that EULAs will become commonly publicly available without government intervention. But, more importantly, this is tantamount to arguing that we should 'vote with our dollars' (as the phrase goes), an incredibly undemocratic way in which to operate. This system means that rich people can afford more votes than poor people; whatever system is controlled in such a fashion will inevitably lead to favoring the desires of those with money instead of being fair to all those who need the covered good or service. Rights should not be doled out according to who can afford them; poor people should not have to live according to the unforgiving tyranny of the marketplace set up for them by rich people.
Re:No, EULA's don't come with software. (Score:2, Interesting)
1. Go to EB
2. Look at game boxes until I find one I like
3. Buy it
Now let's see how the same procedure would look if I had to use your method of accepting/rejecting EULAs:
1. Go to EB
2. Look at game boxes until I find one I like
3. Go home (or to an internet cafe) and look up the EULA on the publisher's site, or email the publisher (and wait for a response) if, like most, the site fails to provide the EULA for perusal
4. Go back to EB
5. Buy the game if the EULA was acceptable; if not, return to step 2 and repeat
Doesn't that seem a little ridiculous to you?
Back when I bought Turbo Pascal (longer ago than I want to remember), the EULA was printed on the envelope in which the floppies were sealed. Borland's license actually stated, in remarkably plain English, that by opening the envelope you were agreeing to treat the software like a book, and that you were therefore welcome to loan it to a friend as long as you made sure that you were not both using it at the same time.
How times have changed...
Re:Someone please explain to me... (Score:1, Interesting)
I pushed the space bar, I didn't click OK
I created too many widgets and the text widget with the license didn't show up because it ran out of resources
I swapped the text of the OK and Cancel buttons (this wouldn't be reverse engineering because you can do this programatically at runtime by sending the window set text messages)
I swapped the IDs of the OK and Cancel buttons (can be done programatically too, not reverse engineering).
I sent a message to the OK control via an external app
I wrote my own system hook to not accept text messages on all edit controls, so the EULA text couldn't be set.
I changed my font to have the letters messed up, so the dialog was complete gibberish. I clicked on the "XU" button that magically dismissed the dialog.
I changed my settings so everything is solid black, I just happened to push the enter key on my keyboard and it worked.
My computer had a virus that would offset the mouse cursor by -20 pixels in the x direction, I clicked cancel but the dialog thought I actually accepted it.
etc.
Re:Well, we wanted a ruling on EULA's (Score:3, Interesting)
In other words, if they saw through the scam, they'd say that it wasn't really a controversy, and throw it out of court because they had no jurisdiction over it. Mind you, IANAL, so I don't know if they'd do anything else to you for trying to game the court like that, but I can at least say that they'd toss it out of court.
Sadly, the rest of the schemes I'm seeing mentioned would also be unhelpful. Yes, you could try to make your own crazy contracts, but the court gets to decide *which* contracts it wants to find "unconscionable." So they can say that merely because it's click-thru, we don't find it unconscionable, but instead because you attached it to a virus, or just mailed it to the software company. Mind you, they seem to be finding that clicking that "okay" (or designating some agent to do that for you--your kids, a friend, a company, etc.--the fact that YOU asked them to makes them an agent of yourself here), you actually enter into these crazy contracts.
Alas, the only one I remember being found "unconscionable" was one where you couldn't benchmark or review it without prior consent. IIRC, it was in the EULA of some A/V product... I can understand why they might want that, to avoid misleading claims of which product kills more viruses or whatever, but it was still a terrible clause, and I seem to remember it running afoul of the 1st ammendment (thankfully, some rights are *inalienable* -- you cannot contract yourself into slavery, for example).
So, sadly, this court is apparently too shortsighted to see that its ruling could kill reverse engineering (what product will allow it save by oversight?). All I can say is that I hope for a more savvy court on appeal.
Frankly, I wish the courts would make certain rights with respect to software *inalienable* so that we don't have to put up with EULAs trying to steal them from us. I'm sure that reverse engineering and making the software product interoperate with the other software should be on the shortlist of inalienable computer rights, though there are probably others...
Re:Right of First Sale in 2001 (Score:2, Interesting)
The Court then goes on to use the EULA (which is under dispute) to decide that the defendants agreed that the software was licensed. Grr.