Slashdot Mirror
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.
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.
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
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.
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.
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.
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.
___
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/
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
If you read his responses to the previous article here on /. (which I'm not linking to because the site is moving awfully slow right now), you'll see that he repetively states that they're targeting for profit fan-sites that are making money on advertising. Of course you don't need to get a liscence for non-commercial use. But if you're running banners on your site, you do need one - and they're letting you have one for free.