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..
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".
Re:Well, we wanted a ruling on EULA's (Score:3, Insightful)
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."
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: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.
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: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.
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 t
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..
Re:Well, we wanted a ruling on EULA's (Score:5, Interesting)
Re:Well, we wanted a ruling on EULA's (Score:3, Insightful)
Re:Well, we wanted a ruling on EULA's (Score:3, Insightful)
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?
Re:EULA is a contract (Score:4, Interesting)
Re:EULA is a contract (Score:4, Interesting)
Re:EULA is a contract (Score:4, Informative)
This is all that is needed. I am a lawyer and I hate to tell you but this is all that is required for them to make the terms of the EULA enforcable upon purchase. There was a case that went to the supreme court concerning this, and the judge found that by simply making people aware that there are terms to be adhered to, the sale of a product bound by those terms is legal. If the purchaser doesnt like this then they can later return the product. It is simply a matter of convinience and motivation of the economy : it would be obviously unreasonable for the manufacturer to put the eula on the box of the product, as this would not tell anything about the product and would make it difficult to sell it and differentiate it from competition.
Remember, law is geared towards enabling the economy, and in cases like this it is a necessity even though it may be abused.
You can think about this in normal contract making situations as well. A person may agree to sell a house to another person, and on agreeing with that person to the sale he is liable for his promise. But it is clear to both parties that there are other terms that will have to be agreed to later because it is simply unreasonable to think that they would expound all of these terms verbally. Verbal contracts are often predicated on the fact that there will be other terms that will have to adhered to.
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: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)
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 aw
Re:EULA is a contract (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.
Comment removed (Score:5, Informative)
This is Just a District Court (Score:3, Informative)
Re:Well, we wanted a ruling on EULA's (Score:4, Insightful)
only in nations allowing slavery.
Right of First Sale in 2001 (Score:5, Informative)
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.
This is wonderful news! (Score:5, Funny)
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)
Re:This is bad. (Score:3, Insightful)
Nope (Score:3, Interesting)
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.
for those of us who value fair use backups... (Score:5, Interesting)
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.
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:for those of us who value fair use backups... (Score:3, Interesting)
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.
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
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: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 me
Thanks for letting us know!!.. (Score:5, Funny)
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.
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:Seems to me to be a bit... *duh* (Score:4, Informative)
Re:Seems to me to be a bit... *duh* (Score:3, Informative)
Re:Seems to me to be a bit... *duh* (Score:4, Informative)
Re:Seems to me to be a bit... *duh* (Score:4, Informative)
You do that, that's retarded.
Whether a EULA is enforecable or not has NOTHING to do with piracy. Piracy is regulated through copyright laws, not EULA's. EULA's are about giving up rights like first sale and fair use.
Re:OT, sorry (Score:4, Informative)
It's "chaise longue," [wsu.edu] not "chaise lounge." "Longue" means "long," "chaise" means "chair."
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
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.
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 pi
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.
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.
bnetd's case (Score:5, Informative)
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.
Re:bnetd's case (Score:3, Funny)
Someone please explain to me... (Score:5, Insightful)
Would a lawyer please explain?
Re:Someone please explain to me... (Score:5, Informative)
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)
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:
- Oops, the defendants didn't keep the receipt. They probably shoplifted.
- 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)
"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)
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)
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
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".
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.
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.
I read it and it makes me sick! EULA = Contract (Score:4, Insightful)
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!
District Court -- Not That Big of a Deal (Score:3, Insightful)
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.
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.
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.
Do what I do (Score:4, Interesting)
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?
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
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.
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: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!
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.
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.
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:sold down the river (Score:3, Informative)
Alea iacta est. The only thing they can win is to stop it. Only lobbying as the industry does can help to defend our interests.
Re:Plain Engrish? (Score:5, Funny)
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.
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:4, Insightful)
Real boycott howto:
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: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: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
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.
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
Re:Plain Engrish? (Score:5, Informative)
If you want to license your software instead of selling it, do it right. Require a signed (and countersigne) agreement up front. This is a pain in the ass and doesn't get you into retail stores, but thats your problem and you need to deal with it if your product is that sensitive and important. If you're going to sell retail, then you can treat your software just like a book with no problems.
On a side note - if someone has written or can provide me with a pointer to a "license agreement" that basically says there is no license, you're bound by copyright law alone, here's a summary of your rights and restrictions I would be grateful, because I'm lousy at writing that stuff myself.
Re:Plain Engrish? (Score:5, Informative)
A license only gives you freedoms. The GPL, for example, gives you the right to distribute modified copies if you distribute the source. It's copyright law taking away your right to distribute copies, not the GPL.
A license doesn't need to be agreed to. If you don't like it, then standard copyright law applies.
Wrong! (Score:3, Informative)
GPL and the BSD license have nothing to do with allowing you to use software. They govern redistribution only. (The GPL even explicitly states this fact...)
In this particular case the judge ruled that the EULA was binding ONLY because the software purchasers never *owned* their copies of the software. They were merely leased the software, and the fact the sofware was only leased shows up only in the EULA which they could not read
Re:Plain Engrish? (Score:3, Insightful)
That's very specific. Nasty, but specific.
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
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:Ummm... (Score:3, Informative)
I guess you reckon the primary use of a cd burner is to steal music from hard working starving artists and their even harder working record company executive bosses.
Re:Ummm... (Score:3)
Uh, no, a lot of people use it for the same reason that I do -- running a private server for friends (who own legitimate copies, thank you very much) to play on that is free of cheaters and lamers.
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 goo
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
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:EULA vs GPL (Score:5, Informative)
Not quite. The EULA is a contract. It applies restrictions to you that aren't part of the law, and it claims that if you don't accept it then you don't have any rights including the ones the law normally grants you. The GPL is a true license. It doesn't restrict you, it only grants you rights you wouldn't otherwise have under the law. If you refuse to accept the GPL you retain your rights under the law including the right to use the copy you got, you just can't do what the law normally prohibits you from doing (ie. distributing copies of someone else's copyrighted work without permission).
Re:EULA vs GPL (Score:3, Informative)