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."

Comments

Well, we wanted a ruling on EULA's

[nurb432]

Now we have one. And they are legally binding...

Joy Joy.

Been saying all along you CAN waive rights via agreement of a contract..

This is bad.

[Breakfast Pants]

You don't get to read the EULA before you have already purchased the software and many stores will NOT take back opened software. I see some lawsuits coming against said stores if this appeal doesn't work out. Imagine if when you bought a music CD you had to sign a contract saying you wouldn't allow anyone but yourself to hear any time you played it.

for those of us who value fair use backups...

[Anonymous Coward]

...would it be legal to make backups of the software BEFORE agreeing to the EULA?

Re:Plain Engrish?

[brianosaurus]

It roughly translates to "Boycott Blizzard."

This ruling gives publishers the ability to take away all consumer rights under copyright law. It basically overrules copyright law with whatever they put in their EULA.

You can't play without clicking through the license. You can't read the EULA without opening the package and running the software. You can't return unopened software (to most stores, again for mostly copyright reasons).

So unless you consent to the possibility of giving up all rights, you should not purchase any software. You have no idea what the restrictions of the license are until after you've given them your money.

An extension of this could mean that any documents you create under a future version of MS Office could potentially be copyrighted by MS. Granted that would be a very stupid thing for MS to do, but this ruling seems to make it possible.

Re:sold down the river

[Anonymous Coward]

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!"

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.

Re:EULA is a contract

[Anonymous Coward]

It think it's this clause in the Warcraft III License that they are referring to:

9. Limited Warranty. Blizzard expressly disclaims any warranty for the Program, Editor, and Manual(s). The Program, Editor, and Manual(s) are provided "as is" without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or noninfringement. The entire risk arising out of use or performance of the Program, Editor, and Manual(s) remains with the User; however, Blizzard warrants up to and including ninety (90) days from the date of your purchase of the Program that the media containing the Program shall be free from defects in material and workmanship. In the event that the media prove to be defective during that time period, and upon presentation to Blizzard of proof of purchase of the defective Program, Blizzard will at its option 1) correct any defect, 2) provide you with a product of equal or lesser value, or 3) refund your money. Some states do not allow the exclusion or limitation of implied warranties or liability for incidental damages, so the above limitations may not apply to you.

You'll note that the only thing that you get when you purchase Warcraft III is a working CD. The manual can crumble to dust upon opening the package. The software can do absolutely nothing at all, or for that matter it can cause your monitor to explode and ruin both your eyes, and as long as the CD is good, then Blizzard owes you nothing. In the event that the CD doesn't work Blizzard can at their option send you a Tootsie Roll(TM) Blow-Pop and that's it. If this license is binding then Blizzard has the option of taking your $50 and giving you a blank CD. Seems like bullshit to me.

No the big problem is...

[NigelJohnstone]

"The big problem most people have with EULA's is that they aren't presented at the time of purchase. "

No the big problem is, people don't and can't be expected to enter into a contract (which is what an EULA purports to be) for a minor purchase for a few $$.

Realistically these densely worded contracts you would have to get professional advice in order to know your rights and loss of rights. You can't do that for every $40 purchase.

What's more is, its impractical to obtain that legal advice when your in a shop, even if you were presented with the contract just before purchase.

What I think you should do is this:

Write a letter saying that regardless of what the EULA says, you do not accept it, will not read it and are not entering into a contract with the publisher. If they don't like it, they can arrange to collect their software from you at a convienient time and give you a full refund.

Send the letter off to them, THEN INSTALL IT.

If they can impose terms after the sale on you, you can impose terms after the sale on them. If its reasonable for them to expect you to return to the shop at your expense, its reasonable for the shop to collect it from you at their expense (or the publishers).