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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."
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?
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 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
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.
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).