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."
St. Louis - Fair use was dealt a harsh blow today in a Federal Court decision that held that programmers are not allowed to create free software designed to work with commercial products.
Umm... with that wording wouldn't that make it illegal to use free software with windows?
Better?
If you want it to get better, you have to do something about it, not just sit on your ass and say "it will probably get even worse!"
When things get better, it's cause someone stood up and said "I want to make things better!"
Think american revolution, WW2, and the people who protested vietnam. These people did something, because the faced the fact: Yes, if you keep sitting there complaining,
IT WILL GET A LOT WORSE!
Yeah, but then again, the media regularly gets stuff like this wrong. News reports read the original article, *think* they understand it (even though they don't, which shows like mad), and then rewrite their own version.
So, yes, you're right. Too bad the media industry doesn't know what's really going on at times like this. They should realize they have to fully understand the article, since otherwise they're confusing the public, and then the public gets the wrong idea too, and then everyone is worse off.
So say you click thru a EULA, you agree to it. You install the software and then decide to pirate it, saying "the EULA is not legally enforcable".
You do that, that's retarded.
You want to know a better solution? Don't agree with the EULA. If you don't like the terms that it sets out for you, stop the install, put the media back in the box, and drive back to the store and bitch about it.
Then simply don't buy that software from them again.
You know what would happen if people did that?
Bizzard (and other software companies) would STOP MAKING UNREASONABLE DEMANDS ON THEIR CUSTOMERS.
Whala, problem solved.
And saying that it won't work beause people are sheep is no excuse for your own llamma-like behavior. Stand up for yourself, stop being such a wimp all the time.
I mean don't you think that it's pretty pathetic to trade your self respect in order to play WoW?
I do.
Been saying all along you CAN waive rights via agreement of a contract..
Sure, I just reject the claim that a EULA is a contract. There's no consideration; you supposedly give up your rights, in exchange for *nothing*. Yhey're along the same lines as me saying "by replying to this post you agree to pay me $1000".
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
...at least when it comes to GPL software I know what I'm getting into when I use it.
Let's see - software that works the way it' supposed to, has no spyware, and is trustworthy or something with a EULA and none of the above?
Someone tell me again why Windows and commercial software are so much better than open source / free software because I'm just not getting it...
- Dave
There are two seasons in my world - Hockey and Construction
...to open a second front against companies like this, and just refuse to buy their products?
If Blizzard is a necessity of life for you, like food, I guess you lose. But it seems like a luxury to me, and isn't it time to just refuse to give a company your money if you don't like what they do with it?
It's your money that's paying for their lawyers.
The EFF is just doing their job, as lawyers, to explain the worst case possibilities of this ruling.
You can bet your ass that Blizzard's lawyers, and EA's lawyers, and MS's lawyers, and Sun's lawyers, and IBM's lawyers, and probably even SCO's lawyers are reading up trying to figure out how they can best leverage this into their own products.
Next thing you know, your iPod will only work with iTunes.
Oh. Right...
blog
What do you mean nothing? YOu mean you're agreeing to a EULA for nothing? I mean don't EULA's usually come with *something* like say software?
Your hair look like poop, Bob! - Wanker.
It's interesting to note, however, that a lot of the decisions were built upon Blizzard's stating that a person can take the software home, read the EULA, reject it, then take it back to the store for a refund within 30 days. I didn't see anywhere pointed out that you won't actually GET a refund in the real world. So Blizzard offers a "way out" of the one-sided contract that cannot actually be used.
Hopefully the appeal will point this out, in which case I think most of the other rulings won't have a leg to stand on, since Blizzard now has $50 of the customer's money, and the customer is left with nothing they case use (without giving up a bunch of rights).
There was a lawsuit about a year and a half ago in California regarding this very issue - naming MS, Symantec, and others. It basically said that you were being forced to buy software that you cannot return after opening without seeing a EULA that you are forced to agree to in order to use the software. I haven't seen any updates, so it may have been settled out of court.
This ruling CANNOT be allowed to stand. It's WORSE that UCITA. It's so one-sided, it makes one wonder whether the judge was really impartial on this one.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
A little clarification: Imagine if you bought a CD, payed with cash, as you walked out the door you were forced to sign the contract or they smashed your CD and you were not allowed a return.
--
WHO ATE MY BREAKFAST PANTS?
But, I think this needs to be decided on soon by the courts: At what point does a EULA come into effect, and if it can come into effect just by opening the shrinkwrap (the infamous shrinkwrap license), can people reasonably be expected to sign away significant rights?
Because I agree that people can sign away these rights of "First Sale" and other rights in a contract, but what effectively is occuring here is that you have no choice in choosing the contract, you are coerced into aggreeing to the contract, because if you refuse the EULA on a piece of software, you are stuck with a very expensive cd coaster.
They come with the installation of software--after you've already paid for it.
The big problem most people have with EULA's is that they aren't presented at the time of purchase. I go to the store to buy a copy of Warcraft 3, I see no license agreement, I am presented with no conditions on my purchase, I pay for it. Contract concluded. Finito. I now have all the standard rights of the consumer to a copy of a copyright-protected work.
What makes you think Blizzard can then say, "Oh, and you have to agree to surrender some of those rights. Tough luck."
How can an EULA, which I would hardly class as a contract, take away statutory or court established rights? Can I sign away my right to free speech? Right to counsel? How far does that go and what takes precedence, law or contract?
Would a lawyer please explain?
The PC Game market is dropping like a rock while the console industry is booming. Many genres have all but disappeared, long time companies are failing, and sales keep going down. Its not like the console market is doing massive innovation or has better graphics. And console games tend to be more expensive new and hold their full price longer.
I'm going to commit a holy Slashdot sin, but do you think that, gee, maybe the easy of piracy MAY have something to do with it?
One of the reasons that Blizzard has been successful is that they make multiplayer games that require that you BUY THE GAME. None of this play it for a year and justify to yourself why you didn't buy it by saying "This sucks, its just like War2. I'm not going to buy it".
It's not like Blizzard isn't providing enough servers or bandwidth or like its hard to find a game.
We should be protecting Blizzard as one of the few quality game companies left making PC games, not attacking them because they would like to remain profitable.
You don't like it? DON'T BUY THEIR GAMES OR PIRATE THEM.
Brian Ellenberger
It doesn't matter who are the good guys or the bad guys: there's just a bad legal construct (copyrights on interfaces), so the people using it are automatically demonized.
It's like Napster. Napster were unquestionably crooked when they started, and the fact that the RIAA was bent as hell shouldn't have led anyone to lionise them... but it did. Nobody seems to have cared much about mp3.com, who were trying to operate within the spirit of the law but turned out to be violating the letter.
The FSF are the good guys, right? But the core difference between the GPL and the LGPL is that the GPL asserts a copyright on the interfaces exported by the GPL-ed code, otherwise you could simply ship GPLed code as a shared library and treat the interface as a firewall between two incompatible licenses.
It's all a matter of reputation, really. All you can do is keep reminding people that just because you agree with someone doesn't make them the "good guys", or that you disagree that doesn't mean they're the "bad guys".
How about, boycott the American Justice System?
Blizzard are operating within accepted legal boundaries and did not put these laws on the books. Blizzard are not responsible for this decision, only for making a contest out of it.
And honestly, in the long run, I'd rather take an outcome like this than let the laws sit on the books untested for years or decades. Now that it has been tested, there is palpable outrage. If things can be fixed, this has provided the motivation to start fixing. If not, it only makes plain what was already written into law.
I can't see how Blizzard are to blame for this. Perhaps they are on the big list, but not before the POTUS, Congress, House, etc.
Basically, they upheld EULAs. Once you legitimize EULAs, then anything goes. So the Fair Use, DMCA, etc. aspects of this case are relatively uninteresting.
What this court has done, is strike down First Sale on a technicality. They're saying that unless you have proof of title and ownership of the software, then you did not buy it.This is clearly wrong, but I can't pin down which way they made the mistake. There are two possibilities:
- Oops, the defendants didn't keep the receipt. They probably shoplifted.
- or
.. they're saying that 'title and ownership' of the software, is the same thing as holding the copyright. If you do not hold the copyright to a game, then you do did not purchase a copy of it.
Both are pretty dumb. I strongly suspect their argument is the second one, but they don't seem to get into much detail about just what they meant by the title and ownership. I think the court got confused between owning copies and holding copyright. If I go into a retail store and buy something in exchange for cash, 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. In either case, it was the exact same type of transaction: I handed the cashier some money, and they let me walk out of the store withe the item.There are some interesting consequences of this you-don't-own-what-yuo-bought decision. For example, you cannot lawfully buy a Blizzard game as a gift to (or for resale to) someone else, unless you obtain distribution rights from the copyright holder. Parents, if your kids want a Blizzard game this Xmas, tell them you can't afford the litigation risk.
Another consequence is that you can now enter into a contract with someone you have had no dealings or agreements or communication with. You can transact solely with a local retail store who does not represent any other party, and somehow end up in a contract with a software company in another state. You don't even have to send them something with your signature.
Now that I think of it, I wonder how the retail store was able to lawfully sell you that copy, since they were just a licensee (they do not own the boxes sitting on their own shelves) and agreed to the terms of the EULA when they bought the software from their distributor. Do retail stores now have to negotiate for distribution rights from the makers of everything they sell? I think you just put a bunch of stores out of business, court.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
"But, you are getting something in return: A right to use their software.. ( presumably that is something of value, sometimes its debatable )"
You already paid for the right to use the software when you paid the purchase price. Otherwise, what were you paying for? The packaging?
---------
There is inferior bacteria on the interior of your posterior.
If they're unfortunate enough to be on U.S. soil, developpers only have to host their stuff outside of the USA where the DMCIA doesn't apply, that's all.
"The Internet interprets censorship as damage and routes around it".
Step 1) Write virus. Step 2) Insert EULA into virus. Step 3) ??? Step 4) Profit. I for one welcome your new EULA overlords
Surely it's explicity there - the EULA will state that any and all documents created using this software are the property of EvilVendor, inc.
That's very specific. Nasty, but specific.
Semper en excreta sumus solum profundum
But, you are getting something in return: A right to use their software.. ( presumably that is something of value, sometimes its debatable )
So technically it IS a contract..
I gain the right to use their software when I plonk my money down on the counter and leave the store.
Once I install the software, I'm presented with a contract I obstensibly have to agree to in order to make use of what I have just purchased. I receive nothing in return for agreeing to this demand, and, given that no retailer I'm aware of will accept an open box software return, my agreement is made under duress (i.e. if I don't agree, I forfeit my purchase price.)
In addition to the problems above, the vendor making demands on me after the purchase is made seems to violate the doctrine of first sale--of course, IANAL.
What part of "shall not be infringed" is so hard to understand?
How monumentally naive. Thousands of people have stood up to do something about the ridiculous drug laws in this country. NORML has been working for 30 years to repeal the marijuana laws. They have had no success at the federal level. Imagine spending half of your life to overturn ONE stupid law, and meeting with failure. Face it. The system is unresponsive to the needs or desires or will of the people.
When you begin a point with the phrase "how monumentally naive" and then continue on to discuss a small faction of society pushing to get weed legalized, highlighting their failure as indicative of "the system" being "unresponsive to the needs or desires or the will of the people," you make me want to cry for the people who have to deal with you every day.
Society, as a whole, doesn't give a fuck that weed is illegal.
Get over it, start complying with the law, or be prepared to face the consequences.
Here is what we've learned:
- An EULA is an enforcable contract as long as it is not too "one-sided" or "unconscionable"
- You don't own software even when you pay money for it
- The DMCA allows reverse engineering for the purposes of interoperatbility, but since they didn't write a client then this does not apply
- You are allowed to waive your rights guaranteed by law if you click on a EULA
- Different states have different extensions to contract law
I would like to ask this court this questions:1. What if the Jung did NOT admit to clicking or reading the EULA? Would it still be valid? What if a third party installed the software?
2. If the Blizzard EULA is not one-sided, what constitutes a one-sided contract?
3. How can people sell used Blizzard games on EBAY without the permission of Blizzard? Why isn't Blizzard enforcing their "contract rights"? After all, in order to transfer a Blizzard software license, one must get permission from Blizzard, thus sayeth the EULA.
4. What if Jung had started working on a new client? Would that have passed the Interoperatbility test and allowed him to continue development of a alternate bnet server?
While Blizzard does show injury in the fact that people could use the Jung's bnet server without having a legal key, I think this ruling is extremely one sided.
Clickwrap should NOT enforcable contract law!
The real breakthrough in recent years has been the massive work that has gone into the cross-platform SDL toolkit. It's really amazing, and not to discount anyone else's work, but I see a lot of great stuff coming out ever since SDL became commonplace.
Funny, that.
Guess who made SDL?
Sam Lantinga.
Guess who funded him (insofar as he was funded)?
Loki.
Guess who hired him after Loki passed away?
Blizzard.
Blizzard is starting to remind me of Microsoft (Buy Bungie, buy Connetix, buy Mongomusic). I remember when the technically-superior Total Annihilation was squashed by the better-marketed Starcraft. Every time I really start to like something, Blizzard starts sticking their fingers into it and ruining it.
May we never see th
Real boycott howto:
-insert a witty something-
Society, as a whole, doesn't give a fuck about fair use rights, perpetual copyrights, or click-through EULAs, either. Yet here we are.
Just because there isn't massive popular sentiment against what we here think of as an injustice doesn't mean it's not worth fighting against. You have to start somewhere.
This is a setback but I it won't have precedential value unless the 8th Circuit Court of Appeals upholds the decision. Wait until then to get really indignant.
That's so deliciously evil of you!
Now if only they'd actually give you your money back if you didn't agree with the eula...
Read jack phelps dot net
This is like a new dell computer. You can't read the eula till you start the machine and you can't start till you agree with something you haven't read. Where oh where is America the defender of rights? Too busy sucking up all that pac money and selling consumers down the river?
No, you've got it all wrong.
There's one great difference between GPL* and EULAs. The GPL grants you rights when EULAs takes away your rights. There's no need to accept GPL if you just want to use the software, but then you are bound by the copyright law and therefore cannot disribute the software. EULAs on the other hand take away the rights granted by the copyright law, and you have to accept it before you can use the software.
Here at /. people are pissed because they have no way of reading contract when they do the purchase but still have to accept it. Remember that most stores don't accept boxes that have been opened back.
GPL, on the other hand, you don't need to accept if you just plan to use the software. It only comes to play if you plan on using the software on ways that are restricted by copyright law.
[*] and other similar licenses
*Been saying all along you CAN waive rights via agreement of a contract..*
only in nations allowing slavery.
world was created 5 seconds before this post as it is.
But according to the EULA you're not buying the software, you're buying a license to use the software. Even if your original media is destroyed or unusable, your license is still valid. Either the software manufacturer owes you a free copy of the software (minus media and shipping costs), or you can use your backup. No effect on the market.
Yeah I bet that will go over real well. Just imagine.
Friend: "Hey, Starcraft 2 came out this week! Man, it's looking totally sweet. I can't wait to play!"
Me: "I'm boycotting Blizzard. They're evil and have no regard for fair use and personal liberties. So I'm not getting Starcraft 2 and neither should you!"
Friend: "Ahahahahahahahaha, yeah right." *leaves to buy SC2 and have lots of fun with it*
(The solution is, of course, to download it and play it anyway, but good luck getting that to work with online multiplayer without a valid key! Also it's illegal. Go figure.)
I already have the right to use the software. They don't need to grant me that right, it's just there. The rights I don't have are those protected by copyright; namely, non-personal copying and distribution. Right to use is not something that I need to get from the creator. So the contract gives nothing.
Mod down posts with a "Free Mac Mini/iPod" sig, they're spam!
The solution? Someone comes out with a popular piece of software with some crazy clause in the EULA.
Sorry but that's silly. If you put an unconscionable clause in a regular ol' pre-Internet-style written contract, a court can easily find it unenforeceable without throwing away the entirety of contract law. So putting a bogus clause in a shrink-wrap contract will have the same lack of effect. It may void that particular contract, whoop-de-do, but it won't strike down EULAs in general.
We need to stop pinning our hopes on an activist judiciary. They may nick around the edges of UCITA but the killing stroke is not going to happen. At this point, the only way to substantially limit the scope of EULA's is through legislative amendments.
There are two kinds of people: 1) those who start arrays with one and 1) those who start them with zero.
Another thing I just thought of - I don't understand how making archival copies for backup purposes is a protected right that can't be infringed by an EULA but reverse engineering for compatibility is a fair use right that CAN be infringed by an EULA (actually, I just looked it up and apparently the government now suggests that parts of Title 17, including the right to archival backup, can be thrown away by EULA).
Fair use and archival backup are both sections under Title 17 of the Copyright Act. In order to accept that any of exemptions can be made not to apply, you have to accept that the software you are buying at a store isn't 'bought' at all, it is solely licensed after the fact by the EULA. So as to the question of what happened in that store when you handed them cash or your credit card and carried that box home, I basically give up trying to make sense of it.
It's a game company. Nothing you will ever get from them will be of any value whatsoever beyond idle entertainment. So stop buying from them.
I did this the moment I heard about the bnetd case a couple of years back. Vowed never to purchase one of their products again, and I haven't. If you're concerned about the company acting like one of the spawn of Satan (which they are) then DON'T PURCHASE THEIR PRODUCTS.
And once you decide you actually have the balls to follow through, and aren't just some little prick on slashdot you SAYS he'll do this but then buys everything that Blizzard dumps on the market anyway, send them a letter explaining that their licensing practices are just plain evil - as is their attitude towards bnetd - and that's why you've decided never to have anything to do with them again. Give them a big "fuck you and the horse you rode in on".
I did this. I seriously doubt it made any difference at all to the company, but it sure was fun. All Blizzard does is produce games, so unless you're really so much of a loser you can't stand the thought of going cold-turkey where Blizzard is concerned it really isn't that big of a deal to tell them to 'piss off'.
You could even - gasp! - send the $40 you'd spend on a Blizzard game to the folks who need it for the appeal.
Max
My god carries a hammer. Your god died nailed to a tree. Any questions?
>Pay to have a 12 year old purchase and install the software on their own PC, and leave the room while they do it. (They are the ones who will be playing the game anyway) Minors cannot be legally bound to any contract.
IANAL and this does not constitute legal advice but if you think being cute like that will help you in a court of law, I foresee a very large judicial bootprint on your ass at some point in the future.
To sales@blizzard.com:
- Hello,
I've been a long time blizzard customer and have bought every game that
your company has produced since Warcraft was published back in '94,
sometimes even multiple copies for different platforms. Because of the
recent legal actions your company has taken against the developers of a
project called bnetd, particularly invoking the provisions of the DMCA, I am
no longer buying your games and will encourage all of my friends not to do so as
well. I will miss enjoying the high quality games that blizzard creates.
Remember, companies get away with these things mostly because we let them. If they knew that doing things like this would hurt their bottom line, you can be certain they would change their tune.Isn't gaming the courts like this illegal?
Which is fine, until the software company sues the bejesus out of your wife, for breaking the inevitable condition that she wont let anybody else use the product.
You'll be fine though, if you have a good pre-nup.
I don't understand how someone could possibly consider SC to be better.
It is simple. People are talking about different things. Others are talking about game play, you are talking about eye candy. Neither is right or wrong, your personal preferences are what they are. All that we really know is that the game play oriented audience seems to be larger given the monumental and continued sales. PR can not make a bad game sell beyond a brief period after the game initially hits the shelves. When you have a game like Starcraft that sells for years that is word of mouth not PR.
Not everyone is simple enough to be amused by MMORPGs...we lose nothing. Have fun with your lack of a real life.
What these people needed to realized was that creation of a new law wouldn't actually solve that problem. If people were going to violate copyright, they certainly wouldn't have any compunction about violating the DMCA. That's not to say that disregard for copyright should be tolerated, but making new laws cannot and will not ever hope to solve the problem. I honestly wish I could give an answer to what I thought might be an effective solution, but I don't know that there is one. Media piracy is a social disease, not a technological one, and I wish with all my heart and mind that somebody with the power to change this bad law would listen to reason before the otherwise almighty dollar sign.
What's interesting about all this is that if the DMCA appears to be more effective at making criminals easier to find, it's only because it's so much easier to infringe on the DMCA than on copyright (as it was before the DMCA) that there's suddenly a lot more people you can actually call criminals in the first place.
File under 'M' for 'Manic ranting'
Again, I beg to differ. An EULA is supposed to be binding before one uses the software. The GPL doesn't even start to take effect until you try to re-distribute the GPL'd software. That is, in my mind, a large difference. (However, IANAL.)
Keep in mind this main difference: if you reject the terms of the GPL, you can still use and/or change the software as much as you want. If you reject the terms of an EULA, then, in theory, you cannot use the software *at all*. Big difference.
The courts say that you are not buying the software - but only a license to the software.
great - then according to that logic, there is no inherent value in the Final Cut Pro HD box at Frys so far as the installation CD is concerned....
so as long as you tear open the box, remove the DVD, and leave the license agreement (all Apple software has full paper versions of the license agreement in each box of software) according to the court, you haven't actually stolen anything.
they clearly state that the CD has no value, there is only value in the license agreement. So, don't take the license agreement. You should be in no deeper poop legally than if you downloaded it off kazza - because you didn't take anything of value.
If you take that CD and put it on your wall or use it as a coaster, and never stick it in your computer - then would you technically be in any legal trouble at all? I can't see how.
guns kill people like spoons make Rosie O'Donnell fat.
ALso, You dont have the right to impose terms on them unless they agree to them seperately.. YOU are the customer, YOU bought the product, so YOU have to agree to THEIR terms..
Right.
I am the customer.
I paid them money for their said product.
What were you saying again? About their terms?
Online backup with Mozy, sounds like Ozzie, but more!
The whole stituation is sickening.
I think I'll go publish a book. On the back cover in small print iw will say:
The text of this book is not sold, but instead licenced to you. In exchange for this licence to read the text, you waive all fair use and first sale rights. Yada yada yada.
Let a court choke on THAT one! They make all all sorts of stupid rulings relating to software that they would never dream of making in relation to an ordinary book. A copyrighted work is a copyrighted work. If you can EULA software then you can bloody well EULA a book.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
* Get a lot indignant consumers
* Buy Latest Blizzard game in droves
* Open the box. Start installing the game. Read the EULA end-to-end, noting the parts you don't like. Stop the install by declining the EULA.
* Attempt to return the package to the store; politely express disatisfaction about their refusal to accept EULA returns. Note the parts of the EULA you find unacceptable. Agree that you will take the issue up with the manufacturer.
* Contact Blizzard to obtain an RMA, politely informing them you want a rebate since you don't agree with the EULA, and your local vendor declines to provide one. Be sure to again note the parts that you find offensive, and why. Return all the game materials to Blizzard.
* Repeat every eight weeks. After all, you do want to see whether they've changed the agreement to something more reasonable. =)
Note, you may be out about six bucks per cycle doing this. If it weren't for that, I'd be pleased to join in such a movement. While I like Diablo, I'm afraid Warcraft bores me once I finish clicking through the "You're making me seasick!" gags.
//Information does not want to be free; it wants to breed.
Part of why this ruling is so devastating, as has been pointed out elsewhere in this discussion by now, is that this judge said, flat-out, that you don't buy software; you buy a license to use software.
He essentially gutted the entirety of Section 117 of copyright law, by taking out the entire underpinning of it. Since nobody actually owns copies of programs any more, by this inept judge's reasoning, nothing in 117 applies the way I see it.
Here's my plan. I reach a EULA during installation. I do not read it. Instead, I grab the nearest underage child I can find and have him perform the click-through for me. I haven't done the click-through, so no one can claim I did anything to signal agreement to the EULA. As for the child, he is legally incapable of entering into a contract, so the license doesn't apply to him either.
(Published at my homepage: http://www.schkerke.com/blog/archive/2004/10/02/42 5.aspx)
The press release came today from the EFF that the bnetd vs. Blizzard case had been put to rest. In essence everything that has been urban myth till now is dispelled. Reading the summary judgment, it looks as if a software producer can place whatever terms they want in their license and force you to agree to it. The case was brought under the DMCA initially and apparently expanded to include breach of contract and agreement at a later time.
The judgment can be found on Freedom To Tinker, at http://www.freedom-to-tinker.com/doc/2004/bnetd_30 sep.pdf. It's an interesting read -- I mostly ignore the case citings and get to the meat of the judgment itself, which can be fairly easily followed. The citings will lose you.
What is particularly disturbing about this case is the fact that it was settled via summary judgment. IBM in SCO vs. IBM is fighting tooth and nail right now to have a summary judgment issued that they have never infringed on SCO's copyrights while working with Linux. According to Groklaw, in order to dispute or dispel a partial summary judgment, you need only show disputed facts. The judge in this case apparently felt there were no disputed facts -- a sad tale indeed.
First, the small print in the system requirements area that says this software is subject to an EULA is enough of a notification to the purchaser that they are not purchasing the software, they are purchasing a license to use the software. I don't consider that a big enough notification then. The limitations and restrictions placed in the EULA also supercede all other copyright, federal, and state laws -- rendering the first sale doctrine and reverse engineering for compatibility moot.
Second, the Court in this matter has never tried to return software to Best Buy. Every game purchaser in the world is familiar with the "return it unopened or exchange it for the same product if opened and defective." Yet returning the software to the store it was purchased from was listed as an option by the Court. This is not a feasible option - no store returns opened software, although I wager if you had a Federal Judge ask the question the stores would chime, "Sure we do!" If you're a young male trying to return the software though you'll be treated like a black man at a white water fountain in the early '50s -- with suspicion, distrust, anger, and outright hatred. (pp. 6-7, "The terms of the EULA and TOU themselves do not appear on the outside packaging. If the user does not agree to the terms of Blizzard's EULAs or Battle.net TOU, he or she may return the game for a full refund of the purchase price within thirty (30) days of the original purchase.") If the court is referring to the option to return the software directly to the publisher let me ask you, have you ever tried that? Not to mention the cost you incur for shipping and the fact the the publisher may still reject your refund.
The fact that the EULA is available nowhere outside the physical media of the CD-ROM also wasn't an issue. The fact that a contract normally requires agreement between both parties wasn't an issue. (In one way I can see this - if actions were taken by both parties that could be taken to reasonably assume they had knowledge of and agreed to the contract then the contract would be binding. This doesn't explain how my son can agree to an EULA at age seven - despite the fact that he can install software. This doesn't explain what happens if you copy the CD-ROM, delete the EULA from the CD-ROM, and install the software with a blank license agreement. This doesn't explain the software that preinstalls things on your machine before you ever even see the license agreement - notably music CDs with their (in)famous copy protection methods.
bnetd was originally brought around by Blizzard's inability to deal with cheaters, hackers, and huge amounts of downtime on Battle.net. I like to thi
My reality check bounced.
Recent studies have shown that there are more pot smokers than African Americans in America.
Stupid black people, wanting equality. Society, as a whole, doesn't give a fuck about a few people being forced to the back of the bus.
Get over it. Start complying with the law, get to the back of the bus, or be prepared to face the consequences.
It's been a long time.
I don't see why. What basis is there for them to have any force? They meet pretty much every definition of "not a contract". They're additional conditions after the sale, which is a no no under every consumer protection law ever dating back centuries. They're contracts of adhesion, because you don't have the opportunity to negotiate. They're questionably contracts at all, because copyright law explicitly provides you with every right you need to use software you've bought, EULAs notwithstanding. Right of first sale generally indicates that if it looks and acts like a retail purchase, it _is_ one, no matter if after the fact a company wants to call it a "license". The only rationale for them to have any effect is, in essence, the argument that if you throw a ton of text at someone with a button labelled "I Agree", that somehow a legally binding contract is created. This crap would get laughed out of court, and public opinion, in ANY other context. Period.
Even more than that, whats the moral imperative for an EULA? Software publishers don't need any of the rights they claim to market a product. How is the right to forbid reverse engineering (despite explicit legislation preserving that right!) essential to them? Or the right to forbid users from measuring and making statements about performance? Or, in fact, ANYTHING except "you can't make copies of this and give them to all your friends", which is neatly covered by copyright law?
An EULA could be binding if it was presented in terms of a contract, like, say, a cell phone contract. There's a form, you fill it out, it's countersigned by the retailer, you pay your money, you go home. The software industry wants to be able to generate onerous licensing terms AND have the benefit of acting like a normal retail sale and it just pisses me off that so many judges seem to buy into this crap.
Even if you could return it, no questions asked - it STILL wouldn't pass muster in any other context. It's been tried in tons of industries. The auto industry tried it. The book publishers tried it. The music and movie publishers tried it. Every other time, it's been shot down. I don't know what the hell is wrong with this judge. This is basic, basic stuff about the integritry of the market. Think of how shitty your life would be if everything you bought could have binding, post-sale conditions of use. Think how broken and fucked up our economy would be!
I've said it before - the industry wants it's cake and to eat it too, and the courts are letting them. To a degree which would be unthinkable in any other industry. Books are sold, not licensed. Sometimes special books/documents are licensed, under an NDA or similiar - you agree to and sign the NDA BEFORE you get the book. It's a term of the sale, not a post-sale condition. That makes all the difference in the world. I can't think of a single non-software item where you pay up front, but must agree to terms of use before you are actually able to use it. There's a lot of case law about behavior indicating acceptance of contracts - whats that have to say about minors buying software? The industry will happily sell to minors, who can't legally agree to the EULA. That's either fraud (they're taking money in exchange for a license they can't grant), or as long as you're under 18 you can happily ignore EULAs and simply obey copyright law. How about the fact that they present this as a retail sale in general? The software industry, both retailers and distributors, does nothing to support it's contention that software is licensed and not sold. Software companies even report sales as sales, and not licensing income. Everyone, from CEOs to accountants to clerks refers to it as a sale. It's ridiculous to let this sort of double talk stand.