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.

Comments

Intention/Interpretation/Lawyer Scum :)

[Anonymous Coward]

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.

You'll understand when you're a lawyer.

[underwhelm]

I was pretty unimpressed with Apogee's responses to Slashdot posters in the previous thread, but what intrigued me was the claim that the lay people don't understand the law, and that's why lawyers exist.

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.

Poor Excuse for a professional

[finkployd]

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

*READ* what he said

[Reality Master 101]

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?

--

Actually, that is what he said...

[TheDullBlade]

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.

Re:someone's eating crow tonight?

[gilroy]

Quoth the poster:

But I wonder if it would hurt to at least *research* the story before posting it.

Hmmm. What research is being suggested? I read the Apogee license site (which, incidentally, had a non-link to a privacy policy), I've now read the public response of Scott Miller, and I even dashed off an email to Mr. Miller myself. His response was much the same as the public one -- essentially, dismissive of the concerns people have raised and sort of "We'll never do that -- TRUST us." in a Joe Izuzu tone.

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.