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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--
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?
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.
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.
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
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!
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
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.
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.