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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."
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
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
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?
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.
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
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.
*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.
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.
* 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.
(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!