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Apogee License Agreement Followup
Fireball sent us linkage to a quote (its way down there, can't link it directly) from BluesNews where Apogee's Scott Miller replies to my little tirade yesterday about the apogee license agreement. Basically it says that they would never do such a thing and shrugs it off as mere sensationalism.
Of course I never figured Apogee would sue over this:my beef really isn't with Apogee as much as UCITA and what it makes theoretically legal. One can only hope that the courts strike it down, but only after many expensive legal battles I'm sure.
Whether or not Apogee ever intended to sue is not the whole issue, whether or not they meant the agreement to ever be interpreted in such a way that suing could be possibility is also not the issue.
The issue is how the agreement could be interpreted. Currently Apogee may not want to sue over negative reviews and so any clause in the agreemnt preventing negative reviews wouldn't matter. But, if at some stage in the future Apogee came under new management, maybe got bought out by another company, then that new management could decide to sue depending how how the agreement was interpreted by them.
The fuss people make over companies changing agreements wouldn't be relevenat here as the agreement wouldn't change, just the way in which the agreement was interpreted.
Best to never write an agreement that could be misinterpreted by anyone, now or in the future.
If someone thinks they can make money by suing then that is what they will do (if the agreement lets them) - the way the agreement was intended to be interpreted is not relevant at all.
I actually read the Apogee license agreement, and it seems relatively harmless. I can see how item seven of Trademark Use (You may not use the Marks in a manner that is likely to cause confusion with, dilute or damage the reputation or image of Apogee or any of its products.) would seem like they're trying to control negative reviews of Apogee, but I think it's taken out of context really. Examined within the context of the rest of the agreement, it seems that their main concern is having Apogee material used commerically by someone else, or having the material located on potentially offensive sites (porn sites, that sort of thing.)
So while Apogee's Scott Miller may be a bit unprofessional in his response to the original posting, he does have a valid point in that controlling negative reviews wasn't the intention of the agreement, and I think most people would see that if they read it.
bubbles.utonium
GeekFlavor
That's the real trick, isn't it? Apogee claims that merely by using their products you've already agreed to a contract which you have not seen at the time they claim you agree to it, and which they can change at any time and continue to bind you with.
Contracts that you don't get to read before agreeing to and which can be arbitrarily and unilaterally changed without notice strike me as a very bad idea.
If you don't agree, tough; by reading any part of this post, you are entering into a contract to agree with me, and gain the benefits of being one of my legions of yes-men (including but not limited to reading this post). If you do not wish to enter into this contract, do not read this post.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
It would be uncontitutional. :)
I think that it's ludicrous though, that anyone would ever want to state that "if your viewpoint doesn't match ours, you shouldn't be here"
I never said that. Nobody is restricting access to this site. In fact, you can come here and bitch up a storm about the whole site (as some do).
However, like I said this site fills a niche. They went from an obscure site called Chips N Dips with a few loyal followers (and no trolls I might add) to the suge site they are today. All while keeping to their mission statement (which is "post whatever interests them")
That being said, if you come here complain about stories that are posted, comments that are modded up or down, or that slashdot doesn't post what YOU want to read, don't expect anyone to care. Don't expect the site to change for you (as many seem to do)
This site has always been Linux slanted, and that is what many of us like best about it. You want "balanced" news, go see ZDNet or CNN. As for the opinions, it's their site. If they want to post opinions, more power to them. That is usually what starts the great discussion and interaction.
Finkployd
When has Taco ever seemed intelligent? This seems pretty consistent with his general cluelessness.
So your answers to my questions were "yes", and "yes", respectively? :)
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Actually this is boilerplate legal language for trademark use (and many such contracts are not easily understandable by lay persons without a legal background which is why companies hire lawyers).
Any lawyers here care to give the answer? I notice the Apogee guy says they'd not allow their trademarks to be used by a porn site. If they were parodying one of Apogee's games, then could that count as fair use?
[n.b. I'm not thinking of running a Duke Nukem porn site, I was just wondering what the law is.]
perl -e 'fork||print for split//,"hahahaha"'
"Oh, we would never dream of actually doing the things our license says we can. Of course our license says you can't use our trademarks in your keywords for a website critical of our products, but we wouldn't actually enforce the bad parts of our license."
Well, each of my subsequent thoughts were well addressed in the previous thread and still remain:
A contract is meant to be understood by the bound parties. If Apogee believes their contract to be inscrutable by the people they expect to be bound by the license, they should make the meaning more explicit. This make for not just good contracts but good relations.
The wording of the license is overbroad and certainly attempts to stomp on copyrighted works' fair use and the legal use of Apogee's trademarks by parties other than Apogee which are well defined (but different. Fair use applies to copyright, while trademark law is even less restrictive than copyright)
Here is the stumper: Apogee obviously pays lawyers to draft these licenses so... do they not understand how their licenses are overbroad, threatening and unenforceable? Why does Apogee hire lawyers that imply the ability to give Apogee rights that the company does not have? It seems that even Apogee's lawyers need to learn a little something about the law because they either believe the license is entirely enforceable or the entire contract is in bad faith.
This is doubly true, now that Apogee has stated that they will not pursue the full extent that the license seems to grant them. Oh, how benevolent. How about, instead, taking the disputed language out??
A license to use copyrighted works is bad enough, but one that has implications beyond the use of the copyrighted work is simply out of line. Anyone who claims otherwise, lawyer or not, needs to be sent to their room to think about what they've done.
I don't need large brains to have a good time.
How could Apogee take away someone's rights by simply not mentioning them? Should they have to list every right I have in their agreements? No. The point is that Apogee is trying to regulate the use of various trademarks and whatnot in a way that they should not be allowed to do legally. However, UCITA would make their agreement binding unless parts of UCITA are overturned in court.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
In the US, in general, you don't need a license to use a trademark to refer to the trademarked product, even in a negative way. Companies do it all the time in comparative advertising. The purpose of a trademark is to identify the origins of a product to a buyer unambiguously and clearly, nothing more.
I know how it is to be so energized by an issue that you take any chance you can to voice your opinion, and Taco admits the problem with this quote, "my beef really isn't with Apogee as much as UCITA and what it makes theoretically legal. "
Personally, if I were being paid millions upon millions to run a site, I would be more careful when slandering a company that I see as an easy target to voice my views on a slightly related issue. A simple email from the slashdot editorial staff to Apogee could have probably flushed out the REAL details of this non-story but then Taco couldn't sound off against the UCITA like he wanted to now could he?
Maybe slashdot/Andover doesn't want to be considered a serious news outlet or responsible journalists and that's their prerogative, whatever generates pageviews/banner impressions makes the stock holders happy I guess. (Makes ya wonder how so many of these types of stories make their way onto the front page these days doesn't it?)
Since paper does not refuse ink, any license agreement can say whatever any author of the agreement wants it to say. Nevertheless, no agreement, however valid it may otherwise be, can be enforced to the extent unconstitutional, and not even UCITA can overcome the same.
This whining about UCITa neglects the fact that such agreements would be equally enforceable (or unenforceable) without UCITA. Period. The fact that the status quo would permit an agreement with bad ink to be entered into isn't to defend UCITa, just to point out the extent to which the critics will go. Blame it instead on el nino.
The Copyright Act, an act of Congress, expressly provides for fair use of a work, in particular, the excerpting and quotation from a work for the purposes of criticism and such. 17 U.S.C. s. 107. The Copyright Act goes further, expressly preempting state laws, including UCITA to the extent they attempt to create copyright-like rights for subject matter expressly beyond the scope of copyright protection. Further arguments based upon the Commerce clause and implied preemption theories may be asserted as well.
The long and short of this is: (i) UCITA is no better or worse than the status quo in "permitting" these clauses to be enforced; and (ii) these clauses are probably not enforceable anyway to the extent they impinge on fair use.
As I said, blame it on el nino.
No, I didn't take the time to read the response.
I do know, however, that he's right. That license agreement was for the trademarks. It was a standard license. It has been legal binding for years. If you wanted to legally use Apogee's trademarks, you had to agree to play by their rules. It's not like it actually covered any of their software.
Is this post not nifty? Sluggy Freelance. Worshi
They seem to be trying to grant their fans rights which they already have. Trademark dilution law allows you to use a trademark for non-comercial purposes, ie a fan site, news site, or other such site with no revenue source (purely for the fun of it). Addmittedly they are allowing the use of copyrigthed material under this licence, but the trademarked material can be used whether you agree to their licence or not.
The standard disclaimers apply, IANAL etc.
But the Trademark dilution act is fairly clear on this point.
-------- This space intentionally left blank --------
#include "ianal.h"
Under fair use provisions, aren't I allowed to use trademarks for educational or journalistic purposes without the permission of the trademark holder? In other words, I don't have to agree to their annoying license to mention their name in a negative review.
If I'm right about this, their license is just smoke to make it look like they're actively protecting their trademark, as they're required to do. UCITA applies to software shrinkwrap licenses, which is somewhat different.
BTW, if you were a reviewer, you could always circumvent UCITA by having a colleague install and use the program while you watched and reviewed it.
Sure, Apogee might have enough of brain to realize that it isn't in their best intrests to do this, but they still have the ability. And it won't always be up to the people with a clue to decide. If prosocuting someone under the terms of UCITA would result in a substantial profit for a company it is quite possible that due diligence laws might come into effect, forcing the company to do so, against their better judgement.
And what about the behemoths that don't care if the allienate those of us that support freedom. To a microsoft or an AOL the damage that negative comments could do to their bottom line far outweighs the negative feedback about the software product. And if they were to design a product that atuomates the locating of negative feedback would making coments to the fact that they locate negative feedback also be covered by UCITA?
UCITA is bad. Especially for those of us who live in states like MD where the UCITA, even a weakend version of it, is scheduled to become law in the near future.
"You can't fight in here! This is the war room" --Dr. Stra
In the letters from Scott I've seen, I've found him to be a poor excuse for a professional.
He comes across vulger, insulting and incessantly giggling (I mean, do you really have to write "hee hee" in an e-mail 6 times!)
I'm sure he was tired of dealing with questions and complaints (many I'm sure were flames) but as a representative of a software company, I thought maybe he would try to clear up the misunderstanding instead of calling everyone "morons".
The fact is, the license IS scary, not because of what they plan to use it for but what they CAN use it for. If they only plan to hit copyright violations, why not say that. Why even give yourselves the power to someday go after negative reviews of your products?
I will never purchase products from this company again (I have in the past), not only due to the license issue, but the unprofessional, insulting manner in which Mr. Miller dealt with it.
Finkployd
Basically it says that they would never do such a thing and shrugs it off as mere sensationalism.
I'm really pissed off at CmdrTaco's arrogance. That's NOT what he said. What he said (quite rightly) is that people are not bothering to read and understand what the license agreement said. It does not say that Apogee has the right to ban negative reviews (as if they could reserve that right anyway), it simply grants the use of their copyrighted materials for use by their fan base, but only under certain conditions. Obviously they want to be able to retain some control.
I don't blame Miller for laughing it off -- because the whole premise is laughable. Wouldn't be a great world if people actually thought things through before jumping to conclusions?
--
Sometimes it's best to just let stupid people be stupid.
If they are that sincere about not taking legal action with that aspect of their EULA, why include it at all, and risk generating controvesy.
ByteMyCode.com: A Web 2.0 code sharing community.
Just because Apogee says the would not take such advantage doesn't mean we have to wait for someone who will.
Maybe someone here can accelerate the destruction of UCITA by creating an artificial battle. Slashdot can create a piece of content and apply a ludicrous license restriction permitted by UCITA but not by common sense. Some brave soul can step up to violate the restriction, and Slashdot can take him/her to court for $1 in damages. A few low-priced comptent lawyers should be able to adequately argue UCITA's overreach and force it to be overturned.
Keep it all in the family :-)
I'd call that "shrugging it off as sensationalism".
Apogee isn't attempting to ban all negative reviews, they "just want to grant some special privileges to fans."
However, Apogee seems to be offering "special privileges" to people who don't need them. The contract offers, in parts, permission to use trademarks to identify Apogee stuff (always legal, no permission needed), and permission to use screenshots (clearly fair use). They also grant permission to help them distribute the information they make freely available from their website, so long as you don't charge for it. Gee, thanks Apogee! Maybe you need permission for that, but they could have granted it in a single paragraph.
Then they ask for notification for every time you use one of their trademarks ("You must notify Apogee prior to any use of the Marks and/or the Materials.").
Furthermore, they claim that merely "Accessing the Property" means that you agree to the contract. Hmm... That doesn't sound like granting special privileges to people who want them, it sounds like roping anyone who wanders into their web site (if that's even remotely legal).
The contract is misunderstood because it is very poorly written, and about 5 times longer than it should be.
I took the time to read it, I don't think it says what he's claiming at all. Nobody needs permission for the things it offers, they are either normal use for trademarks or fair use of copyright, and it appears to try to place greater restrictions than would exist without their "permission".
My personal opinion is that their legal staff is a bunch of second-raters like the rest of the company, and didn't accomplish what they were told to do.
These topics contain icons that enhance the interface, allowing the reader to quickly scan the top tool bar to see the topics posted on the main page. Some of these icons are funny, some are seasonal, and some icons make most Linux users want to cry.
The majority of these icons, however, are the copyrighted trademark of multi billion dollar, multi national companies who spend millions and millions each year maintaining a good name in the industry.
The proposed EULA from Apogee just sucks because good people have to fear the wrath of evil companies infringing on their right to free speach under the first amendment. I ask you, does Rob have the right to make his own topic bar? Can he add an icon for what ever he wants without fear of retrobution? Is my linking to these trademarked work a violation of some law?
C'mon, think about it. It's just not smart.
___
While in the long run, doing something legal or political about UCITA may be a good thing, in the short run, you have a much more direct weapon at your disposal: don't do business with companies that you know impose onerous or overly complex contracts.
Miller's claim is that their license agreement is harmless and doesn't impose any significant conditions on you, so you shouldn't mind agreeing to it. He isn't claiming that they can't make you agree to it in this way. I'm saying that Miller is wrong and that their license agreement may seriously limit what you can say about their products, and if that bothers you (it bothers me), just don't do business with them. There may be other "hidden" agreements of unknown legal validity, but this one you know about, and this one you can do something about.
If we keep publicizing companies bad license agreements and consistently don't buy their products, this practice will stop sooner or later.
First, the lawyer at Apogee appears to be quite right; the way people are reading the document is not the way the legalese reads. Don't like it? Well, that's how technical matters go. The purpose of the license is to discuss legal rights. If you're worried about the license, you should probably have a lawyer, just as you'd need a lawyer if Apogee *hadn't* written the license, because Law Is Complicated.
Do you think that the average lawyer will go do sysadmin stuff, and then complain because the manuals use technical terms? Well, I do too, but that doesn't mean we're right to do it to them.
Secondly, I don't think he was unprofessional. I think he was human. The people flaming him were unprofessional in the most literal sense; they were flaming him about something they knew nothing about.
Get over it, guys. The license agreement offers you additional terms under which you may use their trademarks and their copyrighted material, and that's all good for you. Insofar as you don't need a license to use these materials, the license doesn't affect you anyway, really.
My blog: http://www.seebs.net/log/ --- My iPhone/iPad app: http://www.seebs.net/seebsfrac/
right here
From what's developing, the original post was dead-on and the cause for concern in my mind hasn't been reduced one whit. Slashdot sometimes goes off half-cocked; this is not one of those times.
The Mongrel Dogs Who Teach
A standard response 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 jumping on a bandwagon without really giving it proper consideration. Legally, that's entirely 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. This policy is only for owners of web sites who wish to use our trademarks and copyrights, like www.3dportal.com. Somehow, someone found a link to it and of course jumps to the wrong conclusion, because...hey...it then can become a hot topic. Yippee. Don't we live in a fun society?
We might need to make it more clear that reviews are--of course!--not what concern us (nor could we legally prevent negative reviews--that's patently absurd). It's a web site using our logos next to overly foul, abusive, racist, etc. language or art. For example, we would not allow our logos to be used on a porn site.
Back to important work...
IANAL
<p>Basically, the only protection a Trademark has is that you can't use it (or an excessively similar mark) to identify another product in the same field (this includes using it to identify <em>all</em> products in the field, like calling all gelatin desserts "Jello"). Also, if they don't enforce it, they lose it.
<p>A Trademark is just a name registered for a certain product. As long as you use it to refer to that product, no matter what you say about it, they can't touch you.
<p>It is significant that it only protects within a certain field. Anyone could produce a "Duke Nukem" insecticide (as long as the name was not clearly derived from the video game character). That is why you can have a McDonald's restaurant and a McDonald's shoestore in the same town (although they'd probably get sued if they sold big floppy red ones).
The license agreement is a legal contract between you and Apogee: in return for using their web site or their software, you agree to certain terms. In some areas, the agreement grants you extra rights (the right to use their software, the right to access their web site), in other areas it limits what you can do with their intellectual property.
In particular, within some limits, without a separate contract, anybody has the right to use their trademarks in the context of making negative comments about their products. But that right can certainly be curtailed if you enter into a contract with the trademark holder. Those kinds of limitations are a priori valid, although in specific cases they may be invalid or unenforceable.
As for Miller, he is not a lawyer, and even if he were, his opinion on the matter wouldn't be relevant. Nor, in fact, does my opinion on it matter. What matters for this agreement is what matters for any legal agreement: do you understand the terms, can you fulfill your part of the agreement, and what are your risks. If you can't answer those questions, don't enter into the agreement.
Don't sign or otherwise agree to a contract if you don't understand it or don't like its terms.
(Disclaimer: I'm not a lawyer. For legal advice, see a professional.)
I don't understand how a seemingly intelligent guy like Taco could be so confused about this whole Apogee issue. It's like he's never read any of the primary information. Nowhere on Apogee's page does it say that they could or would sue anyone for deriding them, and here Taco is hyperboling about how he played chicken with them and won---about how he knew they wouldn't sue him because they had no case. He's making up his own little delusional world here. It's really weird. And all the loyal Slashdotters that do nothing but read the post and, like Labradors, blindly lap up and assimilate Taco's feelings on every issue are making it worse. Taco just runs a news site. He doesn't know bit zero about law and he's making the pretentious claim that he does. It's the same with Tim O'Reilly. Did any one ever read his interview with the head of US Patents? He made a fool of himself, saying things that were patently (pun) false and having the government official tell him so point after point.
It's not the license that matters; It's the company that is enforcing it. A company can choose to not enforce any clause they like without dilutation of later claim, but they can't expect to go adding clauses later. (see the WA 'click-wrap' license case; Dissenting opinion, for explaination).
Hence you get licenses full of CYA clauses that all but take away your right to use it.
.sig: Now legally binding!