Slashdot Mirror
Blizzard Stomps Bnetd in DMCA Case
base3 writes "The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good. Some highlights from the ruling
are: A clickthrough EULA isn't unconscionable (and thus enforceable); Fair Use rights can be waived in a EULA; First Sale rights (!) can be waived in a EULA; The DMCA's interoperability provisions are not a defense. If this ruling is allowed to stand, it will allow one-sided EULAs to force the waiver of the rights of First Sale and Fair Use. This, combined with the Supreme Court's recent assent to perpetual copyright, a few decades at a time, will destroy any semblance of balance in U.S. copyright law. Fortunately, the EFF plans to appeal the ruling."
Ok, so we've been sold down the river, what else is new.
Call me cynical but really it will get a lot worse before it will get better.
MP3 Search Engine
Here's a blurb from linuxjournal on a ruling between Adobe and Softman that appears to grant Right of First Sale. Did this one get overturned?
bnetds primary purpose is to allow people to play pirated versions? errr no. It is to act as a battle.net server that isn't controlled by blizzard, perhaps you'd like to setup private leagues or something.
I guess you reckon the primary use of a cd burner is to steal music from hard working starving artists and their even harder working record company executive bosses.
Most stores have a no return policy these days for open software.
What they did was violate Blizzard's EULA by reverse engineering battle.net, and also circumventing Blizzard's cd-key system, thus allowing illegal copies of the games to be played online
I've been following this for some time, and was always kind of appalled by how unjust the case is.
Basically, for those that don't know, bnetd was a daemon (!) that ran under Linux (maybe windows, I forget) that emulated Blizzard's Battlenet server. Blizzard sent out a C&D and took them to court under DMCA. Really, this is a whole lot like DVD Jon in some ways, because Vivendi is contending that the existence of bnetd promotes piracy because it does not enforce CD key checking. In reality, the motive was never to circumvent CD key checking - it was a workaround to allow LAN games over TCP/IP (vice IPX, bleh). The only way to work this is to emulate a battlenet server that everyone can log into locally.
IIRC, the bnetd team actually asked for Blizzard's help in making CD key authentication work (since the point of the project wasn't piracy) and Blizzard told them to go away. This clearly demonstrates a horrible misuse of the DMCA - basically the circumvention of the copyright protection was unintentional and in fact, undesired.
Hell, since I'm on the fence about who to vote for, if one of the candidates for president would say "Hey, I'm going to fix the DMCA mess!" I'd vote for him. Too bad that'll never happen.
If EULAs are going to be held enforceable under contract law, then the same rules that apply to contract law should apply. Namely, if I delete (cross out) the parts of the EULA that I don't like and agree to the remainder, that should be legally binding. You can do just that by editing textareas in web forms and by editing EULA.TXT before installing a piece of software. Unfortunately the courts aren't smart enough about technology to see a reasonable equivalency there.
LRC, the best-read libertarian site on the web
You can cross out things in the EULA BUT you need to still get the other party to agree to the changes. They could decide not to negotiate and you'd still either have to agree to the original EULA or get a refund for the software.
The ruling should be appealled and an appellate court will take another shot at the ruling. The standard of review of a summary judgement is "de novo" which means the appealls court looks at the issues without deference to the lower court. Lower courts rarely make new law, appealls court do so more often. It shouldn't come as a surprise to lose this at the district court level.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
If you want to license your software instead of selling it, do it right. Require a signed (and countersigne) agreement up front. This is a pain in the ass and doesn't get you into retail stores, but thats your problem and you need to deal with it if your product is that sensitive and important. If you're going to sell retail, then you can treat your software just like a book with no problems.
On a side note - if someone has written or can provide me with a pointer to a "license agreement" that basically says there is no license, you're bound by copyright law alone, here's a summary of your rights and restrictions I would be grateful, because I'm lousy at writing that stuff myself.
Living in Canada, once I purchase a software title at a retail outlet, that copy of the software belongs to me, regardless of any contract forms included in the box (the copy becomes the purchaser's personal property). If the vendor wanted me to return it if I didn't agree to their contract, they must have made that a purchase stipulation (via contract) before the sale was executed.
They are asking *you* to take a specific action with your property.
Here is a piece of paper/dialog box with terms of agreement written down. Please agree to these terms. If you don't agree to these terms, please take the action of selling us the software back at the cost you paid for it.
That is, they are offering to re-buy the software from you (a refund).
However, since you own the software copy in question (and the legal right to use it, as assigned by our equivalents of the first sale doctrine and copyright law), it's up to you - not them - to decide if you want to sell them back the software. They give you two choices (agree to the terms, or return it), what binds you to agree with either of them?
That's the trouble with selling things. You don't get to ask for them back. :)
Anyway, that's how it works up here.
A government is a body of people notably ungoverned - AC
"How about shays (chaise) lounge?"
It's "chaise longue," not "chaise lounge." "Longue" means "long," "chaise" means "chair."
G
You do that, that's retarded.
Whether a EULA is enforecable or not has NOTHING to do with piracy. Piracy is regulated through copyright laws, not EULA's. EULA's are about giving up rights like first sale and fair use.
I can blow your argument out of the water in two sentences:
EULAs attempt to take away rights that you already have due to things such as the First Sale doctrine - it goes so far as to say that you cannot even use the software if you do not agree.
The GPL *gives* you rights that you never had before (due to copyright law) - if you do not agree to the GPL, no problem; you just cannot distribute the software, although you are still free to use it.
It's simple. The court does class EULAs as contracts. The whole point of contracts is to exchange rights: I exchange ownership rights of dollar bills in exchange for ownership rights to food every day. So OF COURSE you can sign away rights - that's the point. Some are really hard to sign away - like the right to be alive or the right to compete in a certain market. "Fair use" rights are apparently not hard to sign away.
I've been trying to explain a certain dichotomy to people on Slashdot for awhile now: civil cases versus criminal cases. Contracts have nothing to do at all with criminal laws and everything to do with civil laws. Civil cases have to do with suits between individuals and society. Criminal cases are about suits between you and society.
I can sign away my right to own certain money. I CANNOT sign away my right to be not robbed. You can sign away your right to reverse engineer software. All saying you have a right to something (like reverse engineering) means that the default state is that you can do it. You can sign a contract changing that between you and the contracting party - unless there is a criminal law saying you can't do that. So in answer to your question, criminal law trumps contracts which trump civil law.
In this case, reverse engineering is generally legal. However, to install Blizzard software, you have to agree that you will not R/E their software, or you are not allowed to install it. So you exchange your right to R/E to get the right to use their stuff, which you wouldn't normally have (hmmm, except you already bought it. Although the judge seems to think you bought a license to use it. I don't see how that helps, though.) Important point: in both CA and MO (the states whose law applies in this case), EULAs have been deemed to be valid contracts.
Now consider the reverse: suppose reverse engineering was illegal in the US. No one is allowed to reverse engineer anything. Blizzard would not be able to hire you (contract you) to R/E anything for them. Just like murder: murder is illegal. In fact, prosecution for murder does not involve the victim: it's a crime against society. The state prosecutes you for murder, not the victim.
In return for you agreeing to follow the terms of the contract, you gain access to use the software sold to you.
That's silly. I already gained that right by PURCHASING THE SOFTWARE! Do I have to get permission from Ford do drive a car that I have already purchased? No, of course not. Software is no different.
Don't let the software industry pull the wool over your eyes.
You've evidently never heard of EphPod, GtkPod, or any of the countless other iPod interface programs. Apple's perfectly fine with non-iTunes programs, they just don't support them.
It's hard to be religious when certain people are never incinerated by bolts of lightning.
It's not a license! It's some bizarre twisted document that tries to be a license and a contract at the same time.
A license only gives you freedoms. The GPL, for example, gives you the right to distribute modified copies if you distribute the source. It's copyright law taking away your right to distribute copies, not the GPL.
A license doesn't need to be agreed to. If you don't like it, then standard copyright law applies.
Not quite. The EULA is a contract. It applies restrictions to you that aren't part of the law, and it claims that if you don't accept it then you don't have any rights including the ones the law normally grants you. The GPL is a true license. It doesn't restrict you, it only grants you rights you wouldn't otherwise have under the law. If you refuse to accept the GPL you retain your rights under the law including the right to use the copy you got, you just can't do what the law normally prohibits you from doing (ie. distributing copies of someone else's copyrighted work without permission).
You mean "continue to boycott Blizzard"
Not just Blizzard, but everything Vivendi.
Yes, that means no Firefly for me.
It grants you rights to use the software (just as the GPL or BSDL do).
GPL and the BSD license have nothing to do with allowing you to use software. They govern redistribution only. (The GPL even explicitly states this fact...)
In this particular case the judge ruled that the EULA was binding ONLY because the software purchasers never *owned* their copies of the software. They were merely leased the software, and the fact the sofware was only leased shows up only in the EULA which they could not read at purchase time. (Most of the boxes did have warnings that an EULA was present, but not what the EULA said, or that an apparent purchase was actually a one-time payment perpetual lease...)
Really, the central argument is: Can you sell copies of copyright protected shrink-wrapped software and get around basic fair use principles simply by claiming to be "leasing" it.
TA is less of a clickfest. With Starcraft there are time when you absolutely have to control individual units. With TA you can control individual units, but usually you don't have to. That one difference makes the game less of a strategy and more of a how fast and how acurately can you click on your units.
The GPL is not an agreement between the creator and the user. You don't have to agree to the GPL to use GPLed software. You just can't distribute GPLed software except as allowed by the GPL.
then whether I have 'title and ownership' of that item, is the same question, whether the item is a CDROM or a carton of milk
Yup. The similarities go on - you own the carton and the milk in it, but not the design of the carton (check it, it's probably patented) and while you're free to use and reuse that carton, chances are you're *not* free to make copies of it. Same with the software - you own the disk its on, but not the data itself. Sucks in a way, but that's the way it is. The various indutries are doing as companies do and pushing to maximise their profit potentials, and so copyright is being skewed more and more in their favour. However I believe that copright itself is essential; ymmv.
agreed to the terms of the EULA when they bought the software from their distributor
No, they did not. The EULA is the End User Licence Agreement - the store is just a reseller, not a user. By the same token if I never install a piece of software, I never have to agree to the EULA - I read all of them (you have to these days, after Kazaa et al started granting themselves rights to install malware along with their software), and I don't remember any that didn't contain a phrase to the effect that by "installing and using" the software, you agree to be bound by the licence. Ie, not by merely buying it.
It's official. Most of you are morons.
IANAL (yet)...but I don't think this is going to work. If you commission someone else to act on your behalf like this (whether or not a minor), then you will be the principal and the action is legally yours.
iTunes allows non-iTunes purchased items to be played, as well. It plays MP3 and unprotected AAC, as well as a few other formats.
Bít, zabít, jen proto, ze su liska!
I think all this legal strong-arming comes from the corporate masters: Vivendi Universal. This kind of crap didn't happen until Blizzard was bought by them.
I have never seen (retail) software where the full contents of the EULA were accessible without running the installer (or at least opening the package). There's a small sticker with something to the effect of "there's an EULA for this somewhere".
This is all that is needed. I am a lawyer and I hate to tell you but this is all that is required for them to make the terms of the EULA enforcable upon purchase. There was a case that went to the supreme court concerning this, and the judge found that by simply making people aware that there are terms to be adhered to, the sale of a product bound by those terms is legal. If the purchaser doesnt like this then they can later return the product. It is simply a matter of convinience and motivation of the economy : it would be obviously unreasonable for the manufacturer to put the eula on the box of the product, as this would not tell anything about the product and would make it difficult to sell it and differentiate it from competition.
Remember, law is geared towards enabling the economy, and in cases like this it is a necessity even though it may be abused.
You can think about this in normal contract making situations as well. A person may agree to sell a house to another person, and on agreeing with that person to the sale he is liable for his promise. But it is clear to both parties that there are other terms that will have to be agreed to later because it is simply unreasonable to think that they would expound all of these terms verbally. Verbal contracts are often predicated on the fact that there will be other terms that will have to adhered to.
-- "Man is born free, and everywhere he is in chains." Jean Jacques Rousseau
If the purchaser doesnt like this then they can later return the product.
What if you CAN'T return the product? Every major retailer I've seen refuses to allow returns of "opened videos, dvds, music, and software" save to exchange for the same title. Since the same title would have the same unacceptable EULA, that brings us back to square one about the purchaser having to eat the cost of the software.