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Apogee(r) Bans Negative Reviews?
An anonymous reader pointed out one of the greatest concerns about UCITA [?] :it allows software publishers to ban negative reviews of their products. Apogee(r) has now done this. It does give right to mention them or their trademarks on BBSs or chat rooms (gee thanks!) but not in any 'Negative Context', or in a way that is negative for Apogee. So by criticizing Apogee's license, am I defaming their trademark and violating this license agreement? Isn't there (oh I don't know) a bill of rights or something that just might have precedence over this? Here is the questionable document. I also must express my distaste that Apogee has a trademark on 'Pinball Wizards'(r) since I suspect Townshend's late 60s composition probably came before, oh I don't know PAC-MAN much less Commander Keen(r). Is that saying something negative about Apogee(r) again?
Here's my letter which I sent to Scott Miller of Apogee complaining about their licence:
;-)
> So let me get this right...If I go on to your site, see some screen
> shots of Duke Nukem XXX. If I then go onto Slashdot and say
> "That new Duke Nukem looks like crap. I would never play such a terrible
> game. Here's the link, what do you think?" you can sue me? ( I have
> just used one of you "marks" in a "negative context" on a "BBS or Chat
> room" haven't I?
> Fascinating...
>
> Well, I have bad news for you..UCITA has no jusridiction outside of the
> US so you may have trouble enforcing your "copyright" Globally.
>
> Your licence is ridiculous.
>
>
>
His response:
>>> Fascinating...
What's truly fascinating is how people can read their own evil meanings into
stuff like this. As a lawyer once told me: Everyone thinks they understand
law...it's no wonder attorneys get any business at all!
Have a nice day!
Scott Miller
Apogee Software, Ltd. and
3D Realms Entertainment
http://www.3drealms.com
==========================
So it appears Apogees' point man for questions and complaints (his e-mail was at the bottom of the "licence") doesn't take this seriously. Perhaps he needs a few more questions asked of him (Slashdot interview?). I'll admit my question was inflamatory but after reading that "licence" I was pissed. And with no "Accept/do not accept" buttons I didn't know how else to let them know how I felt.
Someone else been able to get a straight answer from them?
Never by hatred has hatred been appeased, only by kindness - the Buddha
I suspect this will lead to a new social convention, if you can't say something nice about someone... leave a comment saying you can't say something nice about them. ;-)
Something has to give, and it will, I have faith.
--Mike--
Two points in his response :
First, as I understand it the term "Duke Nukem Forever" is a trademark, no? So you couldn't even use the name, much less a logo.
The second is, regardless of who they *WANT* to deal with, the license applies to quite a few more people then that! Everyone, in fact, that buys the game or goes to their website. So, if they want to only include those fan-sites, they should say so!
-- The nice thing about standards is that there are so many to choose from.
Personally, I think mandatory seat belt laws are some of the stupidest laws ever. Like those against committing suicide.
49 20 68 61 76 65 20 74 6F 6F 20 6D 75 63 68 20 66 72 65 65 20 74 69 6D 65 2E
Everybody should be very skeptical about wild claims on Slashdot.
"5. You may not use the Marks in a derogatory or defamatory manner, or in any negative context. Such use will terminate your license to use the Marks."
Ok, the very first thing that piqued my interest was the phrase "terminate your license". Now, if in fact, Apogee is giving somebody a license to do something, and they break the rules of that license, then Apogee has every right to terminate that person's license. This is not to say the license was fair in the first place, but just that this phrase makes it seem more like they are terminating some permission they have GRANTED you. Now I read down further and find that all the Marks they speak of are actually copyrighted IMAGES. Aha. So. They are ALLOWING you to use these copyrighted images. If you do things they don't like with their images they will terminate your license to use said images. Imagine if I had a webpage and did something like:
PEPSI (insert copyrighted Pepsi image) SUCKS!
Pepsi would naturally want to revoke the license it gave me to use its image in good faith. They probably couldn't stop me from saying "PEPSI SUCKS" because that is free speech. But they might be able to keep me from using their trademarked image in conjunction with that phrase to make them look bad. After all, these are official trademarked images of products. It is not entirely improbable that somebody could set up a website the looked very much like Apogee's and pretend to be them, and use their images to smear them. Whether using somebody's trademarked image is free speech, I don't know. THAT is the issue though.
It's 10 PM. Do you know if you're un-American?
It's Time to Kill Apogee and send them and 3D Realms to the Planet of the Babes. They knew me and my Lo Wang were the King of carnage and King of action respectively yet they decided to tell us to Hail to the king? I don't think so! They better Come get some and suck my Dr. Proton before I carve The yellow "Duke Nukem" title into their Balls of Steel! It's Zero Hour. I'll give them Max Payne! I'll make them and General Phil Graves my Prey!
I'm going to drop a Bombshell here. Me, Duke Nukem, and Talon Brave were running around in the snow acting like Shadow Warriors. We saw a bunch of Pinball Wizards coming our way. Imagine their surprise when they came upon The yellow nuke symbol we made. (Being a gentleman, I won't go into details on how we made the snow yellow.)
He's writing too many emails, and losing his English. First of all he said "we would allow our logos to be used at a porn site" which was an obvious slip. As for his last paragraph, what he MEANT to say was that he expected commercial review sites to have attorneys. He just got his wires crossed.
Still, he's talking out of his ass as much as any Slashdotter: "You cannot use trademarks without the owners permission." This is blatantly false. Trademark law forbids certain usages, but gives the owners of the trademarks no power whatsoever to dictate what those forbidden usages are. Other than saying that "this agreement isn't bad because it isn't legally valid anyway" I don't know what validity his position has.
I have seen the future, and it is inconvenient.
There may be a misunderstanding here. I wrote to the address at the bottom of the "Intellectual Rights" page on their website, and got a response from their PR guy. I'll post my letter and his response below. He called me a "clueless moron"...heheheh... well, maybe my email WAS a little carried away. :)
My original message: His response:OtakuBooty.com: Smart, funny, sexy nerds.
I suppose that depends upon the terms of the license to the license. If the meta-license prohibits criticism of the license, then just criticise the meta-license instead. You'll always be able to out-meta them by a level, unless they are able to figure out a way for a license to apply to itself. "Information about the terms of this licensed are provided under this license." If something like that is actually legal, then it is time for bloody revolution.
You end up with a product review like this:
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
You are right about Apogee talking about "materials", "marks", etc.
But you are just plain wrong about using the logos in trashing articles.
Have you ever seen At The Movies with Roger Ebert? Let's see, he shows clips of films. If the film is really bad he says so.
Have you ever read PC Gamer? They have screen shots of all the games they review. They reviewed Corel's game "Mode" in 1996 and gave it a 10% rating and called it the worst game they had ever seen. There was another game they rated in the same issue that faired just as poorly.
Ever seen a TV review or music review? Usually there is a picture of the cast of the TV show or a picture of the CD cover.
Ever read Home Theater magazine? Mike Nelson (from MST3K) spends each month pointing out the dogs of the film industry. He has stills from the movies, or pictures of whatever actor he is going after.
There is nothing wrong with saying a product is bad and then showing a picture of it. If it is crap, it is crap, pure and simple.
Ever hear the term, "Hate Crime"? Yes, your thoughts are now subject to criminal prosecution of a felony in many states. Sad, yes, but it's getting worse with the far left in the US wanting to inlcude speach within the bounds of "Hate Crime" statutes/code.
Unless we can get some friends in the next Congress, to take up our cause, look forward to even more erosion of rights. To do so, we need to find those running for US HoR or US Senate that is anti-big government and pro-individualism and give them our "collective" support. Yes, I'm afraid I'm talking about forming a "special interest group" to combat Big Brother/Bill.
Of course, if you really want to be complete, you could also put an anti-flaming clause in there and possibly a "I promise to send the poster my first born child" clause for full points.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
The UCITA states that license provisions cannot be contrary to "public policy" (one of those vague legalistic phrases). The Constitution should qualify as a "public policy" exception. However, one would have to fend off a legal challenge from Apogee in order to ensure that criticism of the product qualifies for this exception.
The primary problem with the UCITA is not that it says *anything* can be put into a license agreement. Instead, it is simply that anything can be put in a license agreement until it is determined through the judicial process that such a term *cannot* be included and qualifies for an exception.
It is yet another opt-in vs. opt-out debate; should the allowable terms be explicitly defined and all else deemed inappropriate, or should all terms be considered allowable unless they qualify as an exception. There is little doubt that the former is better for consumers.
ByteMyCode.com: A Web 2.0 code sharing community.
The best defense against bad reviews and negative comments is to have a good product. Just like pleading the 5th can make you look guilty, trying to supress negative comments about your product just makes it look like you're producing crap.
Today's Sesame Street was brought to you by the number e.
From the document itself:
By agreeing to this limited license, you acknowledge the validity of Apogee's ownership in the Marks and will not contest such ownership or the validity of any registrations of Apogee relating to the Marks. If you acquire any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Apogee when and as such goodwill or reputation occurs. You agree to take all actions necessary to effect such vesting.
So.... in English, and by analogy: if you won a worldwide DukeNukem(tm) tournament, and were declared the best DukeNukem(tm) player EVER, you'd have to give the trophy to Apogee(r), and publicly declare "I owe it all to Apogee(r)!" (Provided, off course, that you had prior approval to mention them in your speech.)
Here's a partial list of things which belong to Apogee, and my opinions theretowith:
Apogee logo (sucks)
3D Realms logo (sucks worse)
Duke Nukem (not as good as Quake)
Bombshell (don't buy it)
Dr. Proton (lame)
General Phil Graves (gay)
Come get some (I'd rather not)
Hail to the king (not worth the effort)
King of action (uh-huh)
King of carnage (awful)
The yellow "Duke Nukem" title logo (putrid)
The yellow nuke symbol (should be blown up)
Planet of the Babes (ugly)
Time to Kill (should be dead already)
Zero Hour (terrible)
Max Payne (payneful)
Talon Brave (cowardly)
Prey (good. no, strike that: bad)
Shadow Warrior (BOR-ing)
Lo Wang (incomprehensible)
Pinball Wizards (song was better!)
Balls of Steel (do I need to?)
I'm sure I'll be hearing from their lawyers soon.
Well, well...
How long until I can be legally protected from negative moderation on Slashdot?
-- What you do today will cost you a day of your life.
Unfortunately, trademarks apply to specific areas, or trades. The Who has prior use of Pinball Wizard as a song title. Apogee can claim a trademark on Pinball Wizard as the name of a computer game, and if I wanted to, I could open my own line of Pinball Wizard sperm banks without infringing on anyone else's trademark.
--
Forward, retransmit, or republish anything I say here. Just don't misquote me.
The list of Apogee's trademarks also includes such gems as "Prey" and "Come get some".
I think some lawyers are being overzealous. If you read the text, you'll notice that you have to ask Apogee's permission before using the trademarks, anyway. And no, I don't think it has anything to do with UCITA. This is pure trademark law and AFAIK the terms on Apogee's site have nothing to do with buying a software product from them. For example, I never bought any software from them, and yet I am sure that they feel I would be bound by these trademark use restrictions.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
Come get some - ask Bruce Campbell about this one
Hail to the king - and this one too...
In fact, aren't a lot of the expressions from Duke Nukem (forget the R or the TM... come sue me - I'm in Canada) just ripped off from Bruce? (Okay, the bubblegum/kick ass comment was from Rowdy Roddy Piper in "they live").
BlackNova Traders
This isn't a case of the evils of UCITA. This is a case of jumping to conclusions. If you read the document the restrictions about negative comments, etc., pertain to licensees of Apogee's trademarks.
Apogee requires anybody who wants to use their trademarks to ask for permission. When they get permission they become a licensee--as a licensee they cannot do all the stuff everybody is getting all flustered about.
Well, guess what? This is absolutely standard in the world of licensing. If you're a McDonald's franchisee you cannot host alt.bigmacs.suck.bigtime--that's part of the deal. Them's the rules. If you're going to license Apogee's trademarks, you have to abide by the license agreement.
What this does NOT do is restrict anybody rights to free speech. Duke Nukem is a stupid game. It's immoral. It encourages preteens to acts of violence. It causes people to become fat. I have it on good information that the electrons in the game have been Genetically Modified.
So there.
Should I quake in my boots, waiting for the Apogee lawyers to appear? Nope--because I'm not an Apogee licensee. "Well, wait a minute," you might say. "If 'Duke Nukem' is a trademark of Apogee, and I post a message saying 'Duke Nukem sucks', haven't I used Apogee's trademark? And haven't I therefore become (at least by Apogee's delusional agreement) an Apogee licensee?"
Bzzzzt! Wrong. Apogee explicitly requires you to apply to use their trademarks. They will then issue you a license. Until that happens, you're not a licensee. Posting anti-Duke messages is entirely legal, and the UCITA has nothing to do with it.
BUT if you copy a Duke Nukem GIF off of their web site and post it on your dukenukemblowschunks.com website, they're going to accuse you of trademark infringement. And they might even try to assert that using their site means that you agree to their terms and conditions (um, no.)
AND If you do ask for a license to the Duke Nukem logo to put on the cover of your forthcoming Duke Nukem Tips & Tricks (a bit late to market, aren't we?) then you're on the hook. You can't say bad things about the product. As I wrote above, that's how product licensing agreements work.
I love this one:
You are not allowed to vary the spelling, add or delete hyphens (even for normal hyphenation at the end of a line of text), make one word two, or use a possessive or plural form of the Marks.
Apogeee.
Apo gee.
Apogees.
Apogee's.
Apo-gee.
:-)
Waiting for the e-mail from the big, bad lawyers...
Slashdot should be celebrating this news. Apogee is courting just the sort of court case that could destroy UCITA at the supreme court level.
The supreme justices (indeed, even the district courts) would have a hard time reconciling their prior rulings on matters of speech foreclosure with Apogee's foolish attempt at censorship. UCITA is an act of State legislatures. These bodies do not have the power to annul the 1st amendment of the constitution. If I could be forbidden to criticize Apogee based upon their "ownership" of various identifying names and symbols, then what would exist to stop private individuals, social groups, or even politicians from doing the same with their "licensed" speeches and doctrines?
No, this will be struck down. But remember, the courts do not work magically. Many thousands of dollars and hours must be spent by the "good guys" before they can even reach the supreme court. In case you weren't aware, this sort of committment is not purely voluntary. Organizations like the EFF and the ACLU need you help, in terms of contributions and vocal support.
And don't forget - somebody actually has to entice Apogee into sueing them as well...
-konstant
Yes! We are all individuals! I'm not!
-konstant
Yes! We are all individuals! I'm not!
The license gives one additional rights to do things not otherwise allowed under trademark law. Despite what it says, it can not make it illegal for you to do things that would otherwise NOT be a violation of trademark law. E.G. if trademark law allows you to use a trademark for identification purposes, a license can not take that away. Licenses can only give, not take. Contracts (that is what UCITA has to do with) can take away, but there are limits on what they can do, how they can be agreed to, etc. I am not a lawyer, any care to comment?
Just because it CAN be done, doesn't mean it should!
Which would be really odd, since almost all of Duke Nukem(tm)'s best lines (including 'come get some') were stolen, ripped-off, kiped, and otherwise taken from 'Army of Darkness'.
Sad...
jf
You know. I think I like the idea of a national server outage day. For those of you in a professional capacity, you need to shut them down to check for any negative comments that might get your company in legal trouble. Schedule the outage on the appropriate day. God...can you imagine...one day without ANY computers up?
-- Who is the bigger fool? The fool or the fool who follows him? --
The Apogee license is pretty clear and you don't need a legal degree to understand it. Some of its provisions may turn out to be unenforceable and their remedies may be limited, but to predict that you do need a legal degree.
By default, you should assume that the most restrictive reading of a license is the one that is legally binding. Explanations from vendors or sales people that "it isn't quite like that" and that "they would never enforce it that strictly" are disingenuous; their statements aren't legally binding, they want you money, if they are wrong, they have you by the balls (good for them), and if push comes to shove, you are still looking at a lengthy legal battle to fight something like that through.
If you don't like what a license says, don't agree to the license and don't buy the product. A bad/defective license is worse than a defective product.
(As for the Apogee license itself, you may be able to cancel it by destroying the game media. Afterwards, I believe you ought to be able to say whatever you want to about their product within the bounds of trademark law; but I'm not a lawyer, so get professional legal advice before doing anything like that.)
Here in the U.S.of A., more and more of our individuals' rights are being given away and sacrificed to the grand god of The Botton Line.
All thanks to the rampant distrust of the Government, whose power is being taken away (and in most cases, rightly I think) . . but unfortunately, not returned to the We The People, but instead to the god of The Bottom Line.
When I talk about individual rights, people look at me like I have horns coming out of my head. When I say "you know, it's a little ridiculous that we have mandatory seat belt laws to prevent me from being stupid because people don't want to pay for it." Everything's about the $$$.
"Don't SMOKE, FOR GOD'S SAKE! IT COSTS MONEY!". You watch, next they'll be coming after high-fat foods and alcohol because of the "societal costs" -- they already are coming after guns. I mean, I'm for gun control but HAVE THE BALLS TO CHANGE THE LAWS instead of suing.
But, nope, it's all about the Benjamins folks. Sorry, you can't say anything BAD about COMPANIES for gosh sakes! I mean, you might hurt the GDP! What? You don't want to work 60 hours a week and neglect your wife and family? what sort of sicko are you?
</RANT>
---
DO NOT DISTURB THE SE
Driver: "Officer, would it be legal for me to call you an asshole?"
Officer: "No, you can't do that."
Driver: "Well... is it legal for me to think you're an asshole?"
Officer: "Sure. You're free to think whatever you want."
Driver: "Officer, I think you're an asshole."
So. Is it OK if we think Apogee sux?
--
Sheesh, evil *and* a jerk. -- Jade
Terms of Service
By selling to a consumer ("the USER") any programs or computer applications ("the SOFTWARE") created or licensed by you ("the COMPANY"), the COMPANY automatically gives the USER complete ownership rights, including but not limited to the right to copy, distribute, sell, or reverse-engineer the software.
All source code to the SOFTWARE must be distributed with the SOFTWARE, and complete rights to the source are granted to the USER as well.
If the USER finds any errors ("the BUGS") in the software, the COMPANY is required to immediately fix these bugs, as well as publish the revised source code.
The COMPANY enters into this agreement by selling SOFTWARE to the USER, and is legally binding to such SOFTWARE. If you do not agree to these TERMS OF SERVICE, do not sell your SOFTWARE to the USER.
PS: anyone who trademarks "Balls of Steel" probably doesn't have any
This is a classic case of lawyers seeing how much they can put over on regular people. Somehow, people don't trust lawyers, but they believe everything that they write in an official-looking document.
--The basis of all love is respect
I may be drastically overestimating our elected leaders and our judicial system, but I would think that this is the perfect case to get UCITA thrown out/repealed/whatever.
As clueless as Congress may be, I think the politicians understand that the right to air someone else's dirty laundry is fundamental to the American system of government (as well as numerous others). That's how many of them get elected in the first place.
As flawed as our judicial system is, the courts have been quite consistent over the years about protecting the right to criticize whomever and whatever we wish. This sounds like it could easily be thrown out on First Amendment grounds.
And once we're into First Amendment territory, the media finally pay attention. There's no faster way to get journalists into a rabid frenzy than to tell them they can't air their in depth investigation of whatever they think is wrong with the world.
Hmmm. Guess it's time to fire off some polite emails to a few politicians and journalists explaining that their own livlihoods may be in jeopardy.
The above opinion is purely my own and does not necessarily the reflect the opinions of my employers, friends, family or dog.
There are 10 kinds of people in the world: those who understand binary and those who don't.
Well, I replied to Scott and he replied again with some clarification. Especially interesting is the part where he says, "we only want to deal with fan sites. And we expect them to have attorneys". I'm not making this up. Read below to see it in context...
My 2nd Email... His response (I have italicized the parts he quoted from my mail) Hmmm........... interesting response! I still don't think the agreement is very clear, but perhaps that's because I'm not a lawyer. -John BootyOtakuBooty.com: Smart, funny, sexy nerds.
A standard reponse to the madness! ;-) I must say this is just entirely too funny. And a sad commentary on how little most people understand law. I will say that anyone who thinks we are trying to control reviews and such are clueless morons. Legally, that's impossible -- but then, most people know less about law than they do making ice. ;-) This policy/agreement simply allows fan sites to use our trademarks and copyright character art, etc. Most developers/publishers do not allow this at all. End of story. We are providing a way for them to do so, though. Lay people, of course, read this policy and become panic mongers. Oh so typical in our society. hee hee Sheesh! Back to important work... Scott Miller, 3D Realms
If you read the actual legal document on Apogee's website, you will see that the "license" only applies to Apogee's "Materials" and "Marks".
/. your logo at the top of it? No you wouldn't, and you would well be within your rights to sue them for Trademark infringement. But if somebody wrote a critical article about /. without using any of your trademarked stuff, there would be nothing that you could do about it, which is just as it should be.
The materials (as defined in the document) are all of the typical copyrightable things such as images, sounds, and code.
The marks (as defined in the document) are all trademarkable things like the Apogee Logo (not name) and software titles.
You cannot legally use their sights, sounds, or logos in a derogatory way against them. Whoopty f**king doo. That doesn't mean that you cannot write anything bad about Apogee or their products. It only means that you cannot use the Duke Nukem logo in an article that trashes the crap out of it.
I think that people are making way too much of this. This is traditional copyright/trademark law that has been around for decades. Believe me, if it was 1970, and you wanted to use McDonald's logo in a newspaper article trashing the way they make burgers, believe me, you would get the pants sued off you. But if you trashed McDonald's without using the logo in your article you would be fine. America does have laws protecting criticism. What we don't have are laws that allow you to criticize somebody else using their copyrights or trademarks.
To CmdrTaco: Would you want some other website writing a trash article with
Please people, do not think that everything written in law is evil and bad and designed to take away all rights of everybody everywhere. Yes, the DMCA is bad. Yes, parts of the UCITA are bad (but the parts standardizing transactions between states is good for online commerce).
Let's not take stuff out of hand.